Mr D Jardine v D.M & E.A McClurg — 2021

The tribunal found that Mr D Jardine was not an employee of D.M & E.A McClurg, but was a worker within section 230 ERA 1996. It accepted that the arrangement was informal and that the parties did not reduce it to writing. The tribunal found that the claimant had approached the respondents to work 16 hours a week at National Minimum Wage on a basis that was not PAYE, and it accepted the respondent's evidence that this was connected to the claimant's wish to avoid or limit Child Support Agency payments. It found personal service and mutuality of obligation, but held that the respondent did not have sufficient control for employee status because the claimant could refuse weekends and extra hours, could swap days to suit his own schedule, and used his own agri-diary to record hours worked.

Because the claimant was not an employee, the unfair dismissal, wrongful dismissal and redundancy payment claims were struck out for want of jurisdiction. The tribunal rejected the claimant's case that he was prevented from taking annual leave or that the principles in King v The Sash Windows Workshop enabled unlimited carry-over. It found instead that he did take annual leave and was paid during shutdowns and holiday periods, including a week off in November 2019 and two weeks over Christmas.

On remedy, the tribunal found that the claimant's holiday year ran from 1 September 2019 to 31 August 2020 and that, by termination on 5 May 2020, he had accrued 61 hours' leave, taken 48 hours, and was owed 13 hours at £8.72 per hour, producing £113.36 gross holiday pay. It also found that the respondent had not increased his rate in April 2020 in line with the National Minimum Wage change, resulting in an underpayment of £56.80. In addition, because the respondent had not provided written particulars of employment, the tribunal made a section 38 Employment Act 2002 award of two weeks' pay, assessed at £279.04. The total award recorded by the judgment was £449.20.