Mr Abdul Sesay v Bardwood Support Services Limited — 2023

The tribunal held that Mr Abdul Sesay was an employee of Bardwood Support Services Ltd within section 230 ERA 1996, not merely a worker. Applying the Ready Mixed Concrete and Autoclenz approach, it found that the reality of the relationship involved control, personal performance and mutuality of obligation: the respondent allocated his shifts, he had no meaningful choice over where or when he worked, he could not provide a substitute, and he was integrated into the respondent's workforce. The tribunal accepted that he had not been given a copy of the written contract or written terms at the outset of employment.

The tribunal found that the claimant's employment ended on 24 June 2022, when he was not offered further work after being removed from the Radisson Blue site. The respondent's stated reason was some other substantial reason, namely complaints about performance and conduct at that site and previous removals from assignments, together with the absence of further corporate-site work. The tribunal accepted SOSR as the reason for dismissal, but held the dismissal unfair because no fair procedure was followed and the ACAS Code was not applied. It found that the prior complaints had not been put to the claimant with sufficient detail at the relevant time, and it rejected the respondent's submission that he would have been dismissed within a week; on the evidence, the tribunal considered that a fair process would likely have taken about two months, taking the likely dismissal date to 24 August 2022.

The claimant's allegation of automatic unfair dismissal, based on an asserted request for paid annual leave on or around 18 June 2022, was not made out. The tribunal also held that he was wrongfully dismissed because he was not given or paid the two weeks' statutory notice required by section 86 ERA 1996. On holiday pay, the tribunal found that he had not taken any holiday during his 28 months' service and had not been given a real opportunity to exercise the right to paid annual leave; applying Smith v Pimlico Plumbers Limited, it ordered that accrued holiday entitlement carried over and remained payable at termination.

The tribunal further held that the respondent was in breach of its duty to provide a written statement of employment particulars. It said the claimant would be entitled to consider an award of between two and four weeks' pay under section 38 Employment Act 2002, but no final sum was fixed because a remedy hearing was listed for 29 February 2024. In its closing observations, the tribunal indicated that the claimant would recover a basic award, a compensatory award of two months' net pay, two weeks' notice pay, accrued holiday pay and a section 38 award, subject to agreement or determination at remedy stage.