Cameron Wallis (Free v Respondent — 2024

The tribunal held that Ms Agnes Timbreza was not employed by either respondent under a contract of service. It found that Ms Lathangi Kathirkamathamby ran Blue Crystal Care Agency as a sole trader, that there was no sufficient communication that she was contracting only as agent for Rose Quartz (London) Ltd, and that payment through R2 and the later invoices did not make R2 the employer. The written Agreement for Services was not shown to have been received or accepted, and the tribunal found several respects in which it did not reflect the reality of the working relationship.

Applying Ready Mixed Concrete, Uber v Aslam, Ter-Berg, Stuart Delivery, RyanAir, Atholl House and the other authorities cited, the tribunal found that the claimant was given significant instructions and monitoring while providing live-in care for Client X, including on food, uniform, logbook entries and replacement carers. However, it considered that the claimant retained substantial flexibility over when she worked, could request time off, and could arrange cover from a limited pool subject to the first respondent's approval. Standing back, that flexibility meant the relationship was not one of employment within s.230(1) ERA, so the automatic unfair dismissal due pregnancy claim, the wrongful dismissal / notice pay claim, and the statutory maternity pay claim were dismissed against the first respondent.

The tribunal nevertheless held that the claimant was a worker of the first respondent under s.230(3)(b) ERA and reg 2 of the Working Time Regulations 1998, and an employee of the first respondent for Equality Act purposes under s.83 EqA. It found that she undertook to perform the care work personally and that the first respondent was not her client or customer. All claims against the second respondent were dismissed because it was not the employer. The decision was a preliminary status judgment only and did not determine the merits of the remaining worker-status and Equality Act claims, which were to continue.