Mrs. T Marshall v Bellway Homes Ltd — 2019

This reserved judgment dealt with a preliminary issue: whether Mrs T Marshall was an employee of Bellway Homes Limited for the purposes of her constructive unfair dismissal claim. The respondent argued that she was only a worker and therefore lacked the two years' continuous service needed for an unfair dismissal complaint. The tribunal heard evidence from the claimant and from Mrs Carolyne Watkinson and accepted the claimant as a credible witness, while treating Mrs Watkinson's evidence as limited by her lack of direct knowledge of the documents and day-to-day arrangements.

Applying section 230(1) ERA 1996 and the approach in Autoclenz v Belcher and Ready Mixed Concrete, the tribunal found that the written terms did not depart from the reality of the relationship. It held that the claimant provided personal service, there was sufficient control by the respondent, and the other contractual terms were consistent with employment. The tribunal relied on facts including the claimant's uniform and name badge, use of the respondent's systems and equipment, training, timesheets and payslips describing her as an employee, and repeated references in the offer letter and terms to employment rights and employee procedures.

The tribunal also found sufficient mutuality of obligation over the eight-year relationship. It accepted that the claimant was regularly offered work, often for substantial monthly hours and sometimes for long assignments, and that once work had been accepted she could not simply decline to attend. The tribunal treated the Ashby-de-la-Zouche dispute as a refusal based on travel rather than a general ability to refuse work. It concluded that the claimant was an employee at all material times, had standing to bring and continue the constructive unfair dismissal claim, and that the full merits hearing and amendment application would be dealt with later. No remedy was determined in this judgment.