David Simpson v BUPA Care Services Limited — 2023

David Simpson worked for BUPA Care Services Ltd in several roles, including bank work, a 22-hour care assistant contract, a receptionist role and later as a financial administrator. The tribunal first addressed whether his bank work from April 2020 amounted to employment for the purposes of the two-year qualifying period under section 108 ERA 1996. Applying the concepts of mutuality of obligation and the authorities it cited, the tribunal found that the bank work was a casual arrangement: BUPA was not obliged to provide hours and Mr Simpson was not obliged to accept them. On that basis, his bank work did not count towards qualifying service and his unfair dismissal claim failed for lack of jurisdiction.

The tribunal then found, on balance, that Mr Simpson did have a separate 22-hour contract from 18 September 2020 until 1 October 2021. It relied on the contemporaneous records, including the health roster material, an additional job form showing 22 hours, a change-of-hours form describing a move from the 22-hour HCA contract to bank work, and correspondence referring to him as being on a 22-hour contract. It accepted his evidence that the contract existed and found the respondent's record keeping to be incomplete. However, it also found that the 22-hour contract ended on 1 October 2021 without notice and was not reinstated when he later moved back into other roles.

For the flexible working issue, the tribunal found that there was no employment between 31 January 2022 and 18 February 2022, so Mr Simpson did not achieve the 26 weeks' continuous employment required by the Flexible Working Regulations 2014 and section 80F ERA 1996. It added that, even if service had been established, the claim would still have faced difficulty because Mr Simpson's own case was that he had not made a written flexible working request. The judgment states that the remaining arrears of pay claim was unparticularised and was not determined in this decision.