Mr D Wilson v Carbon60 Limited — 2023

The Claimant did not attend the hearing, having emailed that his connecting train was cancelled, but invited the Tribunal to proceed in his absence. The Tribunal continued under rule 47 of the ET Rules, having regard to the overriding objective, the Claimant's own request to proceed, and the documentary record. The Respondent conceded that the Claimant was a worker and therefore entitled to holiday pay, but disputed employee status for the purposes of the breach of contract claim.

On the holiday pay in lieu claim, the Tribunal found there had been an unauthorised deduction from wages because accrued but untaken annual leave had not been paid on termination. However, the Respondent had since paid £3,838.22 and a further £2,598.30 (totalling £6,436.52), leaving only a £18.25 discrepancy with the Claimant's requested figure of £6,454.77, for which no calculation had been provided. Following Timbulas, the small residual sum was not made out on the burden of proof, and s.25(3) ERA precluded any further compensatory order; a declaration was nonetheless made under s.24 ERA.

On the breach of contract claim for notice pay and lost future earnings, the Tribunal concluded the arrangement was a classic tripartite agency relationship in which the Claimant worked under the control of the client (British Airways), was not obliged to accept assignments, and the Respondent had no obligation to offer work. Applying Dacas, the Claimant was not an employee of the Respondent, so the Tribunal had no jurisdiction under Article 3 of the 1994 Order. In the alternative, one week's pay in lieu had already been paid, and on a common law breach of contract analysis the least burdensome principle limited recoverable loss to the notice period, so the claim for losses up to the end of the assignment (and the figure of around £150,000 referenced in correspondence) would in any event have failed.