Mr R Ross, Counsel For the v Respondent — 2021

On 3 and 4 November 2021, Employment Judge Balogun heard a preliminary issue on whether Ms Gosden was an employee or a worker for the purposes of her claims. She had responded to a 2 January 2013 Gumtree advert for a "mother's help" role, later described as housekeeper, doing domestic tasks including cleaning, childminding and walking the dog at hourly rates that rose from £8.50 to £10. Mrs Coulson contended that Ms Gosden was self-employed, but the tribunal said the parties' initial description of the relationship was not conclusive and the reality of the relationship on the ground was determinative.

The tribunal found that Ms Gosden was required to perform the work personally, rejecting the asserted unlimited right of substitution. It accepted only limited family involvement on occasions with peripheral tasks or favours, not a contractual right to send a substitute. It also found mutuality of obligation and sufficient control: the work continued for over 6.5 years, usually on Mondays, Wednesdays and Fridays, there was an implied obligation on Mrs Coulson to provide some work each week and on Ms Gosden to undertake it, and the respondent could direct specific tasks and the materials to be used in the family home. The tribunal placed weight on the absence of invoices, the respondent usually providing tools and materials, no requirement for professional indemnity insurance, and the claimant's tax returns being official records that did not support her case that she was required to work a minimum of 12 hours per week. It therefore held that Ms Gosden was engaged under a contract of service and, alternatively, was a worker under s.230(3)(b) ERA, so the unfair dismissal, automatic unfair dismissal, wrongful dismissal, written statement, notice pay and holiday pay claims could proceed to a full merits hearing.