P Koscielniak (1) D Zbijowski (2) M Leja (3) v Thermoglaze UK Manufacturing Ltd — 2023

This hearing was listed to decide a preliminary issue: whether the three claimants were employees or workers of the respondent, or independent contractors. The respondent did not attend, had not complied with orders to provide witness statements or documents, and the tribunal proceeded under Rule 47 after an earlier adjournment and further directions had been made.

On the evidence before it, the tribunal found that the claimants were employees. It relied on a number of indicators, including that the first claimant had been recruited through an Indeed advert for a permanent full-time role with a salary range, the respondent gave him a company email address, the claimants were told when and where to work, worked full time for no one else, were paid at rates set by the respondent, did not invoice, and were not registered under CIS. The tribunal also referred to the respondent's own references describing each claimant as a full-time site operative in stable employment.

The tribunal rejected the respondent's case that the claimants began as weekly-paid subcontractors on an eight-week trial and only later might move either to PAYE or CIS status. It found there was no contemporaneous support for that proposition, and that the respondent's distinction between monthly-paid employees and weekly-paid non-employees was not sustainable. The judgment also noted messages referring to holiday pay and to the claimants being in 'temporary employment status', which the tribunal treated as inconsistent with the respondent's case.

The judgment did not finally determine the underlying holiday pay, notice pay, statutory statement, payslip, or unlawful deduction claims. It recorded that no unfair dismissal claim had been set out in the ET1, and that a claim framed as a loss arising from non-payment of national insurance would not be within jurisdiction as pleaded. No award was made in this decision.