Mr P Nsamu v Lewis Coaches and 2 others — 2022

Mr P Nsamu worked as a panel beater and spray painter at Nathan Way under an oral arrangement with GW Facilities Ltd, which traded as Lewis Coaches. The tribunal found that he started in February 2018, was paid £10 per hour, worked flexibly around childcare, was paid only for the hours he worked, and used GW Facilities Ltd’s workshop and most of its tools. The hearing was a preliminary issue hearing to decide whether he was an employee or worker for ERA purposes and whether he was in employment for Equality Act purposes.

The tribunal held that he was not an employee within s.230 ERA 1996. Although there was a verbal contract and he personally did the work, the tribunal found that he chose whether to attend and what hours to work, there was no obligation on him to provide work or on GW Facilities Ltd to provide it, and the relationship lacked the level of control associated with employee status. On that basis the unfair dismissal claims were dismissed for lack of jurisdiction.

The tribunal nevertheless found that he was a worker under s.230(3)(b) ERA 1996 of GW Facilities Ltd and that he was in 'employment' within s.83 Equality Act 2010. It accepted that he provided personal service and was not operating as an independent business trading with a client or customer. The tribunal therefore dismissed the claims against the first and second respondents, but the whistleblowing, race discrimination, harassment, victimisation and unlawful deduction claims continued against the third respondent. No substantive merits findings were made on those claims in this judgment.