T Sterry v Automotive Repair Systems Limited — 2021

The claimant worked for the respondent from 6 June 2016 to 1 July 2020, first as a night shift technician and later as workshop manager. A 2 October 2016 letter set out his duties, hours and pay, including a guaranteed basic pay of £40,000 and further commission. The tribunal found the remittance advices showed that the fixed monthly payment was in fact fixed, with only further commission and bonuses varying, and it rejected the respondent's attempts to explain that element differently. A later 16 February 2018 contract for services did not reflect the reality of the relationship.

Applying the Ready Mixed Concrete / Autoclenz / Uber approach, the tribunal found that the claimant was in reality an employee from the 2016 agreement onwards. It found sufficient control by the respondent over his work, personal service, mutuality of obligation, and integration into the business. The claimant worked Monday to Friday, carried out the workshop manager role personally, and was paid the fixed amount regardless of leave or sickness. The fact that he was paid gross and the documents described him as self-employed pointed the other way, but were not decisive.

On termination, the claimant had long-standing health problems and had asked for a less physically demanding role. After the first COVID closure and the return to work in June 2020, the respondent offered him two alternative roles. On 1 July 2020 he emailed that he would not be returning and later confirmed that he did not wish to retract his resignation. The tribunal found that he resigned, not that he was dismissed. Applying Western Excavating, Malik and s.98(4) ERA 1996, it held that the respondent's conduct was not a fundamental breach and was not conduct likely to destroy or seriously damage trust and confidence. Redundancy did not arise on the facts, so the unfair dismissal claim failed.

The holiday pay claim was withdrawn at the hearing after the claimant said he had already been paid for holiday. No remedy hearing was therefore needed and the provisional remedy date was cancelled.