Mr C Wheeler v Aweswim Ltd — 2025

Employment Judge Gordon Walker, sitting alone at a public preliminary hearing, determined the claimant's employment status with the respondent (a swimming school) and the respondent's strike-out application. The judge concluded that the claimant, a qualified swimming instructor, was neither an employee within the meaning of s.83(2)(a) Equality Act 2010 nor a worker within the meaning of s.230(3)(b) Employment Rights Act 1996, and the claim (disability discrimination, notice and holiday pay) was dismissed for want of jurisdiction.

In reaching this conclusion the judge found that the parties intended at contract formation to create an independent contractor relationship (consistent with the claimant's draft contractual terms and his confirmation under cross-examination), that there was no requirement for personal service (a genuine right to provide a substitute existed, limited only by qualification, governing-body membership and DBS clearance), and that other features of the relationship (limited control by the respondent, no obligation to wear a uniform, free choice over shifts, claimant set his own £28/hour rate) were inconsistent with worker status. The judge applied authorities including Pimlico Plumbers Ltd v Smith [2017] ICR 657 and Stuart Delivery Ltd v Augustine [2022] ICR 511.

The respondent's separate strike-out application under rule 38(1)(a)-(b) of the Employment Tribunal Rules 2024 was dismissed: even if the claimant's conduct had been vexatious, a fair trial would still have been possible.