Mr B Diaconu v Synergy Personnel Limited — 2023

Mr B Diaconu worked for two weeks as a painter on a project at the Natural History Museum after responding to an advert placed by Synergy Personnel Limited. He signed paperwork with Payroll 360 describing him as self-employed, with no entitlement to holiday pay and with a contractual right of substitution. The tribunal accepted that the contractual documents were relevant, but also considered the reality of the working relationship, including the advert, pre-engagement discussions with the respondent, the use of timesheets, and evidence about supervision on site.

For the holiday pay claim, the tribunal applied regulation 2 of the Working Time Regulations 1998 and the authorities it cited, including Autoclenz Ltd v Belcher, Town and Country Glasgow Ltd v Munro, and Community Dental Centres Ltd v Sultan-Darmon. It found that the claimant satisfied the first two elements of the limb (b) worker definition because there was a contractual relationship with the respondent and the respondent was not a client or customer of a business carried on by him. However, the tribunal held that he did not satisfy the personal service element because the substitution clause was genuine and the need for a substitute to be suitably qualified did not make it a sham. The holiday pay claim, said to be worth £201.81, was therefore dismissed.

The claimant also raised a claim for £40 said to have been deducted from his wages at £20 per week. The tribunal held that the deduction was made by Payroll 360, not by Synergy Personnel Limited, so the claim against the respondent failed. It also noted that this claim had not been included in the ET1 and may in any event have been out of time.