Mlle M Malmonté v Respondent — 2018

At the preliminary hearing on 11 May 2018, the tribunal considered the parties' 2 February 2016 'Self Employed Teachers Agreement' and the nature of the working relationship. It found that the claimant ran classes, invoiced the respondent and was paid up to Summer Term 2017, that she could accept or decline classes offered, that the respondent was under no obligation to offer work and she was under no obligation to accept it, and that teaching was not closely supervised. The tribunal held that she was not in business on her own account and was not an employee because the necessary mutuality of obligation and control were absent, but that she was a worker within section 230(3)(b) ERA 1996 because she undertook to perform the work personally.

The tribunal then considered the claimant's unpaid Autumn Term 2017 payments. It held that the contractual notice provision in paragraph 7 of the agreement, which provided for forfeiture of half a term's fees if adequate notice was not given, was a penalty and not a genuine pre-estimate of loss. Relying on the approach in Giraud UK Ltd v Smith and the penalty clause authorities, it concluded that the respondent could not rely on that provision to retain the sums and declared that there had been an unlawful deduction from wages.

The tribunal ordered the respondent to pay £582.50 to the claimant in respect of the unlawful deduction claim. It separately dismissed the claimant's claim for repayment of expenses in the sum of £192.40.