Claimant v Lobley-Eames v Pastiche Europe Ltd — 2021

This was a reserved judgment after a preliminary hearing on 16 September 2021 to decide whether Mrs V Lobley-Eames was an employee of Pastiche Europe Limited within s230(1) Employment Rights Act 1996, or instead a self-employed sub-contractor. The Respondent argued that the original arrangement had ended by frustration or mutual agreement on 27 March 2020 and that any later work was provided under a further unpaid services arrangement. The Claimant said the written contract did not reflect the reality of the relationship, and that she worked under the Respondent's control with personal service obligations.

The tribunal accepted that the Claimant had worked for the Respondent since 1 June 2011 in a substantial management role, including booking and organising events, training and providing entertainers, sourcing costumes and equipment, creating performances, liaising with clients, and participating in disciplinary matters. It found that she was initially provided with the role of Entertainment Manager and later promoted to Events and Entertainment Director. The tribunal also found that she was paid by the Respondent on a weekly basis, that the rate was set by the Respondent, that her annual fee was £25,000 paid in instalments, and that the invoices showed payments of around £500 a week increasing to £550. It accepted evidence that she received a £1,000 bonus on 4 June 2015 and that she received holiday pay.

Applying the approach in Autoclenz, Uber and Ready Mixed Concrete, the tribunal found that mutuality of obligation, control and personal service were all established. It relied in particular on the Respondent setting pay, the Claimant not being able to dictate fees or charge for extra hours, the need for leave to be authorised, the restrictive covenant limiting work for others, the integration of the Claimant into the business, and the substitution clause requiring prior written consent and being limited to incapacity. The tribunal concluded that the written description of the Claimant as a sub-contractor did not reflect the reality of the relationship. It held that she worked under a contract of service and was therefore an employee under s230(1) ERA 1996, with the result that she was entitled to bring her unfair dismissal and unlawful deduction from wages claims. The judgment did not determine the merits of those claims or any monetary remedy.