Mr P Gilbourne v JM Hill Building Services Limited — 2019

The tribunal found that Mr P Gilbourne was employed by JM Hill Building Services Limited from 1 November 2013 to 4 December 2018, despite both parties treating the arrangement as self-employed and payments being made through CIS. It relied on the practical reality of the relationship: a fixed daily rate of £120, later £130, regular work over more than five years, no real right of substitution, and the respondent's provision of a vehicle, fuel, tools, PPE, training and ID, together with control over job specifications and working arrangements.

On dismissal, the tribunal accepted that the respondent had concerns arising from work at Matlock Road for Derby Homes and at Grantham for Tomlinson, but found that the claimant was not told the allegations in a way that allowed him to answer them. It held that the respondent did not carry out as much investigation as was reasonable and did not have reasonable grounds to sustain a belief that the claimant had committed gross misconduct or gross incompetence. The tribunal therefore found the dismissal unfair under section 98 ERA 1996 and said that the compensatory award should be increased by 15% because the respondent's failure to comply with the relevant procedure was unreasonable.

The tribunal also rejected the respondent's case on notice. It found that the evidence did not prove the misconduct or incapability alleged, so summary dismissal was not justified and the claimant was entitled to 5 weeks' statutory notice. Separately, it found that he was entitled to accrued annual leave under regulation 30 of the Working Time Regulations 1998 and section 23 ERA 1996. It also found a failure to provide written particulars under section 1 ERA 1996 and said a section 38 Employment Act 2002 adjustment would be appropriate. Remedy, including the monetary value of holiday pay, notice pay, and any uplift, was left for a further hearing.