(1) Mr D. Aukett (2) Ms V. Saunders v Sentimental Care Ltd and 1 other — 2021

Mr D Aukett and Ms V Saunders were accepted to have been employees of BMS Sussex Ltd at all material times, and they no longer contended that they were engaged by Sentimental Care Ltd under contracts of employment. Their ordinary unfair dismissal, wrongful dismissal and notice-pay claims were therefore withdrawn, and the tribunal recorded them as dismissed on withdrawal. The tribunal found there had once been written contractual terms between Aukett & Co and R1, but there was no direct written contract between the claimants and R1, and their services to R1 were provided through BMS, which the tribunal found to be an active company with its own clients and employees.

On s.230(3)(b) ERA 1996, the tribunal held that it was not necessary to imply a direct contract between the claimants and R1. Applying the necessity approach discussed in Tilson and The Aramis, and the worker-status authorities including Bates van Winkelhof, Pimlico Plumbers and Uber, it found that the existing contracts between BMS and R1 explained the relationship and that the parties would have acted as they did without any implied contract. The tribunal also found that R1 was a client of BMS: BMS marketed its services, had around ninety other clients, and R1 was its main client, even though the claimants were heavily integrated into R1's operations and exercised substantial autonomy in the day-to-day running of the homes.

On s.43K ERA 1996, the tribunal accepted that the claimants had been supplied to work for R1 by BMS, but held that they were excluded because they themselves substantially determined the terms on which they were engaged. It found that they jointly set the fees charged to R1, determined their working hours, place of work, division of tasks, the extent of delegation to BMS staff, and holiday arrangements, with only limited oversight from Mr Ellis. The tribunal therefore held that they were not within the extended whistleblowing definition either.

The tribunal rejected the Gilham Article 10 and Article 14 argument. It held that the claimants were not in an analogous situation to workers protected by Part IVA because the reason they fell outside whistleblowing protection was not their status as individuals without a direct contract or as directors, but the fact that they substantially determined their own terms and were dealing with R1 as a client of BMS. It concluded that no conforming construction of s.230(3)(b) or s.43K was required, and that the whistleblowing detriment and automatically unfair dismissal claims were dismissed for lack of jurisdiction.