Miss K Marples v BWA Health & Care Services Limited At an Open Preliminary Hearing by CVP — 2021

This was an open preliminary hearing to decide whether Miss K Marples was an "employee" within section 230(1) of the Employment Rights Act 1996. She had worked for BWA Health & Care Services Limited as a Support Worker from 9 November 2012 to 14 November 2019 on a zero-hours contract. The tribunal heard evidence from the claimant and from the respondent's managing director, Miss Yvonne Woodhouse, and preferred the claimant's evidence on the practical consequences when she cancelled or declined rota shifts.

The written agreement dated 18 September 2015 described the relationship as one of self-employment and said that no contract of employment existed between assignments. The tribunal held that the reality of the working arrangements was different. It found that there was a contract, that the respondent exercised sufficient control, and that the claimant was required to perform the work personally. On mutuality of obligations, the tribunal accepted that the claimant was expected to work the hours allocated on the rota, that she faced repercussions if she did not, and that the respondent normally provided work with regularity. It therefore found an "umbrella" contract covering gaps between assignments.

The tribunal also noted other status factors pointing towards employment: the claimant did not provide her own equipment, took no financial risk, did not hire helpers, was subject to discipline and organisational rules, received payslips, and had national insurance and pension deductions made. It concluded that the majority of the factors pointed to employee status. Accordingly, it held that the claimant was entitled to bring a complaint of constructive unfair dismissal as an employee, but it left open for a future hearing whether such a complaint had been pleaded or required amendment.