Mr A Russell v Blackburn and Darwen Community Transport Limited — 2023

The tribunal found that Mr Russell was an employee of Blackburn and Darwen Community Transport Limited, not merely a worker. Applying the statutory definition in the Employment Rights Act 1996 and the Ready Mixed Concrete approach, with reference to Autoclenz and Atholl House, it held that there was mutuality of obligation and sufficient control. Mr Russell was required to attend each term-time week unless he had permission to be away, the respondent was obliged to provide the work, and the respondent controlled the routes, working times, bus allocation, and branded clothing requirements.

On the evidence, the tribunal preferred Mr Russell's account on the main factual disputes. It found that he had worked from 5 January 2018, was paid a fixed net sum of £150 per week for the school run plus occasional overtime, was paid through PAYE, and usually did the same route and used the same minibus. It accepted that he had to seek permission for time off and that the keyworker letter and hot drink letter carried little weight on employment status. The tribunal also accepted that the respondent conceded worker status for holiday pay purposes under the Working Time Regulations 1998, although the amount due remained outstanding.

The tribunal found that Mr Russell was dismissed on 19 April 2022 and that the dismissal was unfair. It preferred his evidence that Mr Arnold told him he was suspended pending investigation, rather than the respondent's account that he had behaved aggressively. The tribunal found that the dismissal was because of the dispute about unpaid holiday pay and that the respondent had not shown a potentially fair reason for dismissal, nor any fair procedure. It noted that the dismissal may have been automatically unfair had the case been pleaded on that basis, but it was dealt with as an ordinary unfair dismissal claim.

The unlawful deduction of wages claim failed. The tribunal held that, because the employment relationship ended on 19 April 2022, any loss of pay after that date could not be recovered as suspension pay and would instead fall, if at all, within compensation for unfair dismissal. No reduction was made for Polkey or contributory conduct, as the tribunal found no culpable or blameworthy conduct by Mr Russell in asserting his holiday pay rights. A remedy hearing was listed for 14 March 2023 to determine compensation for unfair dismissal and the amount of holiday pay.