Ms K Ogunkoya v Nightingale Residential Care Home Limited and 1 other — 2021

Ms K Ogunkoya brought claims for wrongful dismissal, arrears of pay or unauthorised deductions, unpaid holiday pay, and breach of contract against Nightingale Residential Care Home Limited and Mr A Oduleyu. Employment Judge O'Brien, sitting alone, found that by 4 April 2019 the parties had expressly agreed that she would provide care home consultancy services as an independent self-employed contractor from 1 April 2019, and that Mr Oduleyu contracted in his capacity as director and owner of the first respondent rather than personally.

The tribunal rejected the claimant's case that her status changed from 1 July 2019 when the registered manager left. It found that her interim management of the home, the increase in monthly payments, the correspondence about tax, and the absence of any agreed change in legal status were consistent with self-employment. Applying the s230 ERA 1996 definitions and the Ready Mixed Concrete and Autoclenz approach, the tribunal held that she was neither an employee nor a worker.

As a result, the wrongful dismissal claim and the claimant's breach of contract claim were dismissed, as were the claims for unauthorised deductions from wages and accrued but untaken holiday pay. The second respondent's contractual counterclaim also failed. No monetary award was made.