Mr Henryk Rezler v TSP Contracting Limited — 2023

Mr Henryk Rezler worked for TSP Contracting Limited as a tiler from 18 September 2018 to 23 July 2021. Although both parties treated him as self-employed, the tribunal found that he worked solely for the respondent, at fixed hours, personally, and under Mr Piotrowski's direction as to where, when and how the work was done. He had no substitution right, carried no real financial risk, and was paid a daily rate. On that evidence the tribunal found that he was a worker under s.230(3)(b) ERA 1996 and also an employee applying the Ready Mixed Concrete multi-factor approach, with the reality-of-the-relationship principle reflected in Autoclenz and Uber.

On wages, the respondent accepted that it had not paid the claimant for 19 to 23 July 2021. The tribunal found that there was no written contract, no prior written notification, no written consent and no statutory basis authorising the deduction, so the non-payment was an unlawful deduction of wages. The tribunal also found a breach of contract on the same facts, but made no separate award because the contractual claim duplicated the £700 net awarded for unlawful deduction of wages.

On holiday pay, the tribunal held that the claimant was entitled to 5.6 weeks' leave as a worker. For the final leave year, running from 18 September 2020 to 23 July 2021, it found that 24 days had accrued by termination and awarded £3,360 net at £140 per day. For the previous two leave years, it applied the King v Sash Window Workshop principle because there was no evidence that the claimant had been informed of or encouraged to take paid leave, and awarded 40 days at £140 per day, namely £5,600 net. The tribunal therefore accepted that the respondent's treatment of the claimant as self-employed did not defeat his accrued holiday rights.

The respondent had never provided a written statement of particulars. Because the claimant was found to be an employee and had succeeded in the wage and holiday pay claims, s.38 Employment Act 2002 required an award. The tribunal rejected the claimant's request for four weeks' pay as not just and equitable, noting that the failure was based on a mistaken belief that he was self-employed and that the respondent was a very small employer. It awarded two weeks' pay of £1,750 gross. The total awards were £11,410 made up of £700 net, £3,360 net, £5,600 net and £1,750 gross.