Mr Omoluyi Longe v Kier Highways Limited — 2022

On 14 October 2022, Employment Judge Barker reconsidered the 15 June 2022 judgment under rule 71 of the Employment Tribunals Rules of Procedure 2013. The earlier decision had struck out the claimant's unfair dismissal and breach of contract claims on the basis that he had no reasonable prospect of proving employee status within s.230 Employment Rights Act 1996. In the reconsideration decision, the Tribunal held that those claims should not be struck out and may proceed.

The Tribunal treated employee status as a fact-sensitive issue that should be decided on all the evidence at a final hearing. It accepted that the claimant may be able to show that the contractual chain did not reflect the reality of the arrangements, including his case that the respondent insisted on the agency providing him in particular. The reasons refer to James v London Borough of Greenwich [2007] IRLR 168 EAT as a relevant authority on that point.

The decision records the claimant's repeated written submissions and the respondent's objections, including its point that the employee-status issue had already been argued. The Tribunal concluded that, in the interests of justice, the matter should be considered at a final hearing. It also noted that the respondent's alternative application for a deposit order was not determined at this stage because the claims first needed to be clarified in an agreed list of issues. A further preliminary hearing was to be listed to agree the issues, determine the amendment application for automatic unfair dismissal and health and safety detriment, and make case management orders. No monetary remedy was awarded or assessed in this judgment.