Mr Andrew Moleta v Little Fair Nursing Home Ltd — 2022

This was a reserved preliminary judgment on employment status and limitation issues in Mr Andrew Moleta's claims against Little Fair Nursing Home Ltd. The tribunal found that, from early July 2019, Mr Moleta was directly engaged in the running and management of the respondent, and that by the terms recorded in September 2019 he was to be on payroll from 1 November 2019 on a salary of £50,000 per year, with additional share arrangements and performance targets.

Applying the statutory definitions in the Employment Rights Act 1996 and the familiar status analysis in Ready Mixed Concrete and Autoclenz, the tribunal rejected the respondent's case that Mr Moleta was self-employed. It found that he was an employee of the respondent from 1 November 2019 and also a worker for the purposes of section 43K ERA 1996. The tribunal accepted that some probate and property work was separate and was not work for the respondent, but held that the work relating to Little Fair was undertaken with the respondent's consent, under Mr Sherard's instruction and control, and without any right of substitution.

On dismissal and time limits, the tribunal held that Mr Sherard's communications in December 2019 were intentionally unclear. Using the objective approach to ambiguous dismissal communications, it found that the 19 December 2019 email forewarned termination but did not expressly communicate dismissal, and that Mr Sherard decided to dismiss the claimant on 20 December 2019. Because the claimant had accrued at least one week's statutory notice under section 86 ERA 1996, the earliest effective date of termination was no earlier than 26 December 2019, so the claims were within the three-month time limit. The tribunal therefore held that the whistleblowing detriment complaints and the unfair dismissal claim were within jurisdiction, but this judgment did not determine the substantive merits of those claims.