In person For the v Mrs N Willis, director — 2018

The tribunal found that Mr M Ng’Ang’a was a worker for Fusion People Ltd and that it was unnecessary to decide whether he was also an employee. It accepted that he had not chosen the umbrella model at interview. After he emailed on 5 September 2018 asking to proceed on PAYE, the tribunal found he had accepted the PAYE terms and that continuing to work while Paystream remained in the background did not amount to an unequivocal variation of the contract.

On the pay-rate issue, the tribunal found the job advert was for £11 per hour, not £13.27. It held that the £13.27 figure applied to the umbrella or limited company model, whereas the PAYE contract was for £11 per hour plus holiday pay. For that reason the claimant’s allegation that he should have been paid £13.27 per hour was dismissed.

The tribunal did uphold the complaint about deductions made by Paystream. It found that deductions described as 'umbrella margin' and 'employers NI and apprenticeship levy' were unauthorised deductions from wages for the period 3 September 2018 to 28 November 2018, and that Fusion People was responsible for them because Paystream acted as its agent. It awarded £614.78 on that head.

The tribunal also upheld the holiday pay claim. It found that the claimant took no annual leave while working on the PAYE terms and was entitled under regulation 14 of the Working Time Regulations 1998 to payment in lieu of accrued but untaken leave. Using a 35-hour week and a weekly rate of £464.45, it calculated seven days' pay at £650.23. The remaining claims for the 25 and 26 December 2018 shifts and for later loss of earnings were dismissed because there was no concluded contract for those shifts and no contractual basis for the later period, and the Arriva bearer’s pass did not change that position.