Ms L Moses - Counsel v Mr P Tomison - Counsel — 2019

The claimant was employed by Adlify under a written contract from 15 January 2018 and also had a separate freelancer agreement with Blackmilk from November 2017. He argued that he became employed by Blackmilk as well, either on 26 April 2018 or in August 2018, but the tribunal found no express agreement creating a Blackmilk employment contract and no mutuality of obligation requiring Blackmilk to provide work. His increased involvement in Blackmilk's business, the use of Blackmilk email addresses, and the proposed share transfer were found to be consistent with the existing arrangements rather than proof of joint employment. The tribunal therefore held that he was not employed by the second respondent.

The tribunal rejected the respondents' case that the employment ended by agreement on 5 September 2018 or that Adlify was entitled to treat the claimant as in repudiatory breach. It found that the claimant gave three months' notice on 30 August 2018, understood the 5 September 2018 meeting as garden leave or work from home under clause 11.3, and did not agree to an early termination. Mr Seeburg accepted in evidence that no work was requested of the claimant during the notice period, and the tribunal held that any alleged failure to do unspecified off-boarding tasks could not justify gross misconduct.

The tribunal awarded £5,145.46 for accrued annual leave to 29 November 2018, £27,711.57 for notice pay, and £7,496.07 for outstanding wages and expenses. It recorded that some expenses might have been due from Blackmilk on a joint and severable basis, but it had no jurisdiction to determine that point because the claimant was not employed by Blackmilk. The unfair dismissal claim was withdrawn because the claimant did not have the requisite service.