Ms Ayers v Endurance business Services Limited and 1 other — 2024

The tribunal found that the written contractual documents reflected the arrangement the parties intended. R1 engaged the Claimant through LHi for a short-term data analyst role; the Claimant then chose R3 as an umbrella company and signed R3's contract of employment. On that basis, the tribunal held the Claimant was an employee of R3 for Employment Rights Act 1996 and Equality Act 2010 purposes, but was not an employee or worker of R1 and was not 'in employment' with R1 under the Equality Act.

On the breach of contract / notice pay issue, the tribunal found there was no direct contractual relationship between the Claimant and R1 capable of supporting a four weeks' notice claim in the Employment Tribunal. It rejected the argument that an express or implied contract should be inferred between the Claimant and R1, and said the rare circumstances required to imply such a direct contract were not present. It also found that R1, rather than the Claimant, had instigated the termination on 25 January 2023 when Ms Vigano concluded the Claimant could not meet core hours, but that did not assist the claim because the tribunal lacked jurisdiction against R1.

On unlawful deductions from wages, the tribunal held that it had jurisdiction only as against R3, not R1. The Claimant had worked 3.5 days and R1 paid the agreed day rate of £600 for the work done, including half a day for Thursday 26 January 2023. The tribunal accepted R3's evidence that its deductions, including margin, employer national insurance, apprenticeship levy, PAYE and employee national insurance, were made in line with the contract and the pre-contract pay illustrations the Claimant had agreed to when she chose R3 as her umbrella company.

On indirect sex discrimination, the tribunal had earlier raised section 41 Equality Act 2010 during the hearing, but refused the amendment because the revised case was not viable. It then found that the pleaded PCP of working in the office two days a week, Tuesdays and Wednesdays, 9 am to 5 pm, was not the requirement actually applied; instead, the Claimant was required to be present in the office on Tuesdays and Wednesdays for onboarding, but could work half days in the office and then work remotely until 5 pm. The tribunal accepted that women as a group were at a particular disadvantage, but found the Claimant had not shown the particular disadvantage to herself on her own evidence, and in any event held the requirement proportionate because it reflected the need for effective onboarding and core-hour availability for a business support role.