Ms Z Khan v Sheffield Health and Social Care Trust — 2019

This was a preliminary hearing on 1 May 2019 before Employment Judge Brain. The claimant, Ms Z Khan, brought an unfair dismissal claim against Sheffield Health and Social Care Trust. The issue determined at this stage was whether she was an employee for the purposes of section 230 of the Employment Rights Act 1996.

The tribunal accepted that the claimant had signed the bank worker terms and conditions headed "Terms and Conditions of Employment". It found that Clauses 6 and 7 created an obligation to work at least 48 hours per year, together with an obligation on the respondent to offer at least that minimum amount of work, even though there was no obligation to offer work above that minimum. The tribunal also found significant control: the claimant was assigned to work locations by the respondent, was subject to job description requirements, mandatory training and supervision, disciplinary rules, uniform and dress code requirements, and could be terminated on notice.

Applying the ordinary principles of contractual construction, and referring to mutuality of obligation and the authorities in Clark v Oxfordshire Health Authority, Carmichael v National Power Plc and Nethermere (St Neots) Ltd v Gardiner, the tribunal held that the claimant was an employee for the purposes of section 230(1) ERA 1996. It found that the respondent's practice of identifying bank staff who had not worked 48 hours in the previous 12 months and terminating their contracts was consistent with that construction. The tribunal rejected the respondent's argument that Clause 7(a) was merely a guide or expectation.

The result of the preliminary hearing was that the unfair dismissal claim could proceed to a final hearing. The judgment recorded that the case would be listed for a two-day final hearing on 19 and 20 September 2019, with amended grounds of resistance and directions for disclosure and witness statements to follow.