Mr Dorel Dita v SBA Construction Limited and 2 others — 2021

The claimant brought claims for holiday pay, one week's notice pay and unlawful deductions arising from work done for the first respondent between 28 February 2020 and 10 June 2020. The tribunal recorded that the claim turned first on status: if he was neither an employee nor a worker, the tribunal would have no jurisdiction to determine the pay claims. The third respondent was said to be connected only through an occasional payment arrangement and was not the claimant's employer or engager.

The tribunal preferred the evidence of the first and second respondents and the contemporaneous documents to the claimant's account. It found the claimant was not a reliable witness, relying in particular on his tax returns for 2018/19, 2019/20 and 2020/21, which showed self-employed income of £21,739 in 2020/21 and deductible expenses of £7,064, together with evidence that he had received SEISS support despite saying otherwise. The tribunal also relied on his CIS registration, his Checkatrade description of himself as a builder with a team, his use of his own van and tools, his setting of a day rate of £140, and his ability on at least one occasion to leave site to work for another contractor.

Applying Ready Mixed Concrete, Autoclenz, section 230 ERA 1996 and regulation 2(1) of the Working Time Regulations, the tribunal found only limited control by the first respondent and no sufficient mutuality of obligation to establish a contract of employment. It held that the claimant personally performed the work, but the overall picture, including the economic reality and the tax evidence, showed that he was operating as a self-employed sole trader rather than being subordinate and dependent. He was therefore neither an employee nor a worker of the first, second or third respondents, and all three claims were dismissed for lack of jurisdiction.