Mrs S Jenkins v Mr Mark Sutton and 1 other — 2023

The tribunal dismissed all claims against Mr Geoffrey James Sutton by withdrawal. It then found that Mrs Jenkins was an employee of Mr Mark Sutton, and therefore also a worker, notwithstanding the Contract for Services. The tribunal relied on the reality of the arrangement rather than its label: the substitution clause was tightly limited and subject to Mr Sutton's approval, the work had to be done personally, and Mr Sutton exercised significant control over how the care was provided. The tribunal referred to the irreducible minimum of employment and to the authorities it cited on status, including Ready Mixed Concrete, Autoclenz and Cornwall CC v Prater.

On the whistleblowing and health and safety detriment claims, the tribunal found that by no later than 26 September 2022 Mrs Jenkins had raised concerns about the locking arrangements, DoLS, the two-ring hob and the leaky sink, in a context where she reasonably believed there were health and safety issues. It held that these were qualifying disclosures and also amounted to bringing health and safety concerns to the employer's attention under section 44 ERA 1996. The tribunal found detriment in Mr Sutton's conduct at the meeting on 17 November 2022 and in later critical remarks he made to Ms Lloyd about Mrs Jenkins. It held that those detriments were influenced by the protected disclosures and by the health and safety concerns, though not solely by them.

The tribunal rejected both constructive dismissal claims. It accepted that Mr Sutton's conduct amounted to a fundamental breach of the implied term of trust and confidence, but held that Mrs Jenkins did not resign because of that breach. Her email of 12 November 2022 showed that she was resigning because she did not want to move into the caravan, and that resignation predated the detriment findings. Her leaving on 18 November 2022 was caused by what happened that evening, not by the earlier breach. The wrongful dismissal/notice pay claim also failed because the tribunal found that she had not been dismissed in breach of contract.

For remedy, the tribunal awarded £1,100 for injury to feelings, expressly across both the protected disclosure and section 44 detriment findings together. It placed the award at the bottom of the lower Vento band, after finding that much of Mrs Jenkins's distress arose from the wider disagreement between the parties rather than only from the detriments found. It also awarded £675 gross holiday pay, the amount agreed between the parties, bringing the total award to £1,775.