Ms A Beenham v Admedia Solutions Limited — 2022

Ms Beenham began working for Admedia Solutions Limited on 29 May 2018 in a telesales role. The parties had agreed at the outset that the relationship would be self-employment, there was no written contract, she was paid a £50 daily retainer plus 10% commission, and she carried out the work personally, mainly from the Respondent's premises. When COVID restrictions reduced demand in 2020, work and payment stopped for periods and the Claimant later raised the issue of her status, leading to correspondence and an eventual draft employment contract in 2021.

Applying the reality-based approach in Autoclenz and the mutuality analysis in Carmichael, the Tribunal held that the Claimant was not an employee because there was no mutuality of obligation. It accepted that there was control, personal service and integration into the business, but found those factors were outweighed by the parties' original self-employment intention and by the way the arrangement operated during the lockdown period. The Tribunal nevertheless found that she was a worker within s.230(3)(b) ERA 1996 because she provided personal service and was not in business on her own account.

The Tribunal then considered illegality under Patel v Mirza, Colen v Celebran and Robinson v al Qasimi. It found that the Claimant had not completed tax returns or accounted to HMRC for at least the tax years 2018-19, 2019-20 and 2020-21, despite being told on the commission documents that she was responsible for tax and national insurance. The Judge found that this was deliberate and sustained, that the Respondent was unaware of the tax issue until June 2021, and that the claims could not be separated from the illegal conduct. All remaining claims, including unlawful deductions, holiday pay, National Minimum Wage, written terms and conditions, and the written reasons claim, were therefore dismissed and no award was made.