Miss B Pawlicka v Gregory Park Holding Ltd T/A Four Seasons Hotel Hampshire PRELIMINARY HEARING — 2020

At the preliminary hearing on 6 August 2020, Employment Judge Midgley considered whether Miss B Pawlicka was an employee or a worker for the purposes of claims under sections 94, 100 and 44 ERA 1996. The respondent operated the Four Seasons Hotel Hampshire and engaged a bank of casual workers under a Casual Worker Agreement to meet seasonal demand.

Applying the approach in Ready Mixed Concrete and Autoclenz, the tribunal found that the written Casual Worker Agreement reflected the parties' true agreement. It created no obligation on the hotel to offer work or on the claimant to accept it, gave no guaranteed hours, and allowed either side to withdraw an offer without notice. The claimant accepted shifts only when they suited her circumstances, worked for several other employers at the same time, and there was no mutuality of obligation or umbrella contract between engagements, so she was not an employee within section 230 ERA 1996.

The tribunal accepted that when the claimant accepted a particular shift she was a worker for that shift, because she undertook the work personally and was subject to sufficient control, including uniform, training, checklist and disciplinary requirements. However, the right not to be unfairly dismissed under sections 94 and 100 ERA 1996 is available only to employees, not workers, so those claims were struck out. The tribunal did not finally determine the section 44 ERA 1996 issue at this hearing and directed the parties to file written arguments on whether it should be dismissed, permitted to proceed, or stayed pending the IWUGB appeal.