Claimant v J V Hyland T/a Sign Windows and others — 2020

This was a preliminary hearing before Employment Judge Adkinson sitting alone at Leicester on 20 and 21 January 2020. The tribunal was deciding whether Ms Pfeiffer was an employee, or alternatively a worker, for the period 12 March 2012 to 28 February 2019. It was not determining the merits of the underlying unfair dismissal, protected disclosure, unlawful deduction, working time or Equality Act complaints.

The tribunal accepted that Ms Pfeiffer had previously worked for the old company and then returned to work for Mr Hyland in 2012. It found that, in practice, she was paid an hourly rate for time worked regardless of whether she generated sales or leads; the clock cards she completed were records of work done rather than invoices; and she worked from Mr Hyland's office using a telephone and line provided and paid for by him. The tribunal rejected the suggestion that hours were paid as a goodwill payment and found that she carried little financial risk because she was paid for hours worked whether or not the work produced business.

In assessing status, the tribunal applied the usual employment-status authorities, including Ready Mixed Concrete, Carmichael, Nethermere, Pimlico Plumbers, Autoclenz, Byrne Brothers and Windle. It found that Ms Pfeiffer was personally recruited to do telesales, did not hold herself out as running her own telesales business, had no unfettered right of substitution, and was subject to sufficient control because the people she could call were limited to approved leads and former customers. It also relied on the 2003 letter from the company secretary describing her as a permanent member of staff paid on a per-hour basis net of income tax, although that letter was not treated as conclusive on its own.

The tribunal therefore concluded that the relationship was one of employer and employee. It said that if it had been wrong about employee status, it would still have found that Ms Pfeiffer was a worker for the purposes of section 230(3)(b) ERA 1996, section 43B ERA 1996, regulation 2 of the Working Time Regulations 1998 and section 83(2) Equality Act 2010. No monetary award was made at this stage.