Mr K Bonsu v Stockport Metropolitan Borough Council — 2020

Mr K Bonsu had worked for Stockport Metropolitan Borough Council as a casual support worker from September 2005 until February 2019. The tribunal accepted that he was a worker under s.230(3) ERA 1996, but held that he was not an employee under s.230(1) ERA 1996. The written terms in 2008 and 2014 said there was no guarantee of work and no requirement to accept work, and the tribunal found that the reality matched those terms: he could accept or decline shifts, and could also cancel accepted work in favour of preferred shifts.

Although the claimant averaged over 40 hours a week during the recorded period, the tribunal held that this did not create mutuality of obligation. The Council used its Bureau to fill gaps in care provision caused by vacancies, sickness, or other absences, but it was not under a contractual duty to offer work to the claimant, and he was not under a contractual duty to accept it. The tribunal accepted that the claimant was controlled while on shift through service user plans, conduct rules, mobile phone restrictions, and training requirements, but found there was no comparable control between shifts. It also found that he was not subject to the Council's employee disciplinary procedure or PDP process and was not integrated into the workforce as an employee would be.

The claimant applied to amend his case to add indirect race discrimination, but that application was refused. The tribunal said no provision, criterion or practice had been identified, and in any event the application was out of time. The claimant's direct race discrimination claim was not struck out and the Council's application for a deposit order was also refused. The tribunal held that there were factual disputes to be tested at a final hearing, including the safeguarding evidence, the alleged assumption of wrongdoing, and the comparator relied on by the respondent, referred to as BC.