Miss K Kilday v JHM Building Services Ltd and 1 other — 2023

The tribunal found that both claimants were workers before 3 July 2019 and employees from 3 July 2019, and rejected the respondent's case that they were only helping to set up a separate roofing venture. It relied on the emails, tracking evidence, payroll records and the wider course of dealing to conclude that both claimants were working on the respondent's projects and systems, and that Miss Kilday was working full time from 1 July 2019. It also rejected the respondent's case that the claimants were absent without leave from 16 November 2020, finding that they continued to work from home, were engaged in the grievance process, and were available and willing to work.

On pay, the tribunal held that dividend payments did not count towards the National Minimum Wage. It found an unbroken chain of unlawful deductions for both claimants, covering the worker-period sums, the employee-period underpayments at NMW rates, and the non-payment of wages from 1 January 2021 to 15 February 2021. The tribunal said that wages were properly payable for that period because the claimants were ready and available to work and the respondent had failed to provide work.

On holiday, the tribunal found that Miss Kilday had 30 days outstanding and Mr Bates had 31 days outstanding, and accepted that the respondent had not made any use-it-or-lose-it policy clear or taken adequate steps to tell them that leave would not carry over. It therefore awarded holiday pay for accrued and untaken leave. It also found that the respondent had failed to give written particulars of employment and made an award under s.38 Employment Act 2002; the reasons section says that four weeks' pay was justified for each claimant, although Mr Bates' final disposal total does not separately add that sum.

For Mr Bates, the tribunal accepted that the employment contract included payment of £250 per week in dividends where dividends could lawfully be paid, and awarded £1,500 for unpaid dividends from 1 January 2021 to 15 February 2021. It rejected his separate claim to a 25% share of the profits of the business, holding that any such entitlement would arise, if at all, from share ownership rather than from an employment contract and was outside the tribunal's remit.