Miss E Millett v Edward Hands and Lewis Limited and 2 others — 2018

Employment Judge Blackwell, sitting alone, held that Miss Millett was an employee within section 230 ERA 1996 from 14 February 2012 to the effective date of termination on 28 March 2018. The tribunal therefore found that she had sufficient continuous employment to pursue a claim of constructive unfair dismissal under section 108 ERA 1996. In reaching that conclusion the judge applied the status authorities cited in argument, including Kovats, Williamson and Soden Solicitors v Briers, and Morrison v Aberdein Considine, and said no single fact was determinative.

The tribunal accepted that the 2013 correspondence described an informal move to a salaried partner arrangement, but found that the surrounding facts pointed to guaranteed salary and drawings rather than true partner status. It relied on matters including monthly payments of £2,480 plus a £3,000 car allowance, the absence of any capital contribution, the fact that Ms Millett was not involved in accountant discussions beyond her own returns, and the absence of any sharing in the premises owned by the equity partners. It also noted the 31 March 2014 email describing Ella Millett as a junior partner on 3% of net profit, and the 28 September 2016 transfer schedule listing her as a salaried partner with actual drawings of £38,000 per annum plus 2.5%.

The respondents' applications under Rules 37 and 39 were refused. The tribunal said detriments 1-10 and 14 needed to be heard with oral evidence at a full tribunal, and that detriments 11-13 would also be determined at the full hearing in light of the status decision. The documentary evidence was said to be overwhelmingly in the respondents' favour on those detriments, but not to justify strikeout or a deposit order at this stage. The judgment also recorded that disability had been conceded, that the direct pregnancy or maternity leave discrimination issue under section 13, the alleged breach of an express term about the branch manager role, and the section 15 discrimination arising from disability issue were all for the full hearing, and that the freestanding disability detriment claim had been withdrawn.