John Davies v Diane Tucker (t/a ABC Nursery) — 2021

The tribunal heard the matter at a remote preliminary hearing focused on employment status and holiday pay. It found that the claimant was an employee of the respondent from 4 January 2011 until 23 November 2018, but not before 2011. In reaching that conclusion, it accepted that from 2011 the claimant worked mainly at the Nursery five days a week, was told what work needed doing, could not send a substitute, was paid weekly in cash, and was integrated into the Nursery.

For the earlier period from 1999 to 2010, the tribunal found the work was more ad hoc across the Tuckers' properties and was not satisfied that the requisite mutuality of obligation existed between the claimant and the respondent during that period. It rejected the respondent's reliance on the HMRC material as determinative and held that, from 2011, the indicators of employment outweighed the points said to point away from employee status.

On pay, the tribunal found that by the end of the working relationship the claimant was being paid a gross annual amount of 15,000 for the work done for the respondent, paid in 50 instalments, which equated to a weekly gross rate of 288.46. Applying regulation 14 of the Working Time Regulations 1998, and accepting the unchallenged schedule of loss, it found that the claimant had accrued but untaken holiday of 5.9 days at termination and awarded 340.38 gross. The judgment did not finally determine the unfair dismissal or breach of contract claims, but recorded that those claims could proceed because employee status was established from 2011.