Ms M Steel v Orchard Prep Ltd — 2023

At this preliminary hearing, the tribunal was not deciding the merits of Ms Steel's unfair dismissal, whistleblowing, race discrimination, wrongful dismissal or unpaid wages claims. The issue was whether she worked for Orchard Prep Ltd as a self-employed contractor through Steele Education Ltd, or whether she had employee or worker status under the ERA 1996 and Equality Act 2010.

The tribunal found that the claimant was first supplied through an agency on 7 January 2019 and then, from 14 January 2019, continued without the agency and invoiced through Steele Education Ltd. It accepted that the invoicing structure had economic advantages for both sides, but treated the company invoicing as a conduit rather than the reality of the relationship. It rejected the respondent's case on substitution, holding that personal performance by the claimant was required and that, especially from September 2019, the respondent wanted the claimant herself to perform the role. By May 2021 she had been appointed Head of EYFS and deputy safeguarding lead, which reinforced the tribunal's view that any substitution was hypothetical.

The tribunal drew a line between the early part of 2019 and the start of the 2019-20 academic year. It held that the essential elements of employee status were not yet established during January to July 2019 because of the absences and the temporary character of the deployment, but that from 1 September 2019 there was an implied contract of employment. It also relied on the 8 December 2021 termination letter, which referred to no formal contract but said she would be paid to the end of the month, as consistent with notice pay and with the reality of employee status. From 1 September 2019 it found control, mutuality of obligation, integration and exclusivity, and held that the claimant was an employee until dismissal on 10 December 2021. It also held that she was a worker between 14 January 2019 and 30 August 2019. Because of those findings, the tribunal did not need to decide the extended worker issue under s43K ERA 1996 or the Equality Act contract-worker point under s41.