Mr D Eite v LB Specialist Cars Ltd — 2021

The tribunal first considered whether the claim form should be rejected because it used the later ACAS early conciliation certificate number. Applying Rule 12(2ZA), the judge held that the error did not justify rejection. The judge accepted that there had been two early conciliation attempts and concluded that rejecting the claim would be a miscarriage of justice and would give the respondent a limitation windfall.

The tribunal then determined employment status. It found that Mr Eite was an employee from 23 January 2017 until his dismissal on 31 August 2020, and also a worker within s.230(3) ERA 1996. Although the parties had labelled the relationship as self-employed for much of the period, the judge found the reality was that Mr Eite provided his work personally, was subject to sufficient control, worked to LB's timetable, and later signed a written contract of employment from September 2019.

The judge noted that before September 2019 Mr Eite invoiced LB, was paid by the hour, did not receive holiday pay or sick pay, and was treated as self-employed for tax purposes. Those features did not displace the overall conclusion on the reality of the relationship. The judgment did not decide the substantive holiday pay issue; that issue was stayed for a separate order.