Ms J McCarthy, solicitor v Respondent — 2020

This was a preliminary hearing on whether the earlier strike-out should be reconsidered and set aside, and whether the claimant had employee status and sufficient service to bring an unfair dismissal claim. The tribunal held that no written notice of dismissal had been sent as required by Rule 38 of the Employment Tribunal Rules, that the claimant had attempted to comply with the unless order, and that an order setting aside the strike-out was in the interests of justice because a fair trial remained possible.

On status, the tribunal accepted that the respondent conceded employee status from April 2016 on the Priestnall contract, but it went further and found that the claimant had in fact started as an employee on that contract in February 2015. It found that the respondent had issued a draft contract of employment at the outset, that the wrong school name on the draft was never corrected, and that the parties intended an employment relationship from the start. The tribunal rejected the claimant's evidence that a corrected signed contract dated 10 February 2015 was genuine.

The tribunal also found that the claimant remained an employee in relation to the Hazel Grove work and that the school holidays created only a natural hiatus in that employment. It concluded that she had two years' qualifying service by the date of dismissal on 20 December 2017, so she could pursue an unfair dismissal claim. For her other work with the respondent, however, the tribunal found that she was self-employed or a worker, relying on features such as invoicing, gross payment, responsibility for tax and insurance, the ability to decline work, and the absence of mutuality of obligation.

The judgment therefore resolved only the preliminary issues: the strike-out was revoked, and the claimant was found to have employee status and qualifying service for the unfair dismissal claim in relation to the Priestnall and Hazel Grove contracts. No liability finding on the fairness of the dismissal, and no monetary remedy, was made in this judgment.