Mr Patrick Cusack v Specialist Cars Limited — 2022

This was a reserved judgment on a preliminary issue in Mr Patrick Cusack's unfair dismissal claim against Specialist Cars Limited. The claimant had worked for the respondent from July 2009 delivering new and used cars. He accepted that he began as a casual worker, but said his role later became that of an employee. The respondent argued that he remained a worker. The tribunal therefore had to decide whether he was an employee for the purposes of sections 230(1) and 230(2) of the Employment Rights Act 1996.

The tribunal accepted evidence that the claimant worked on a casual/flexible basis under a July 2009 letter, but found that the practical relationship later became more regular and integrated. It noted that the claimant was paid hourly through PAYE with national insurance contributions paid, that holiday pay was indirectly reflected in the hourly rate, and that the company handbook applied to him, including notice and disciplinary provisions. The tribunal also found that the respondent controlled how deliveries were carried out, including collection of keys and paperwork, that the claimant wore a branded anorak, and that he could not send a substitute driver.

On mutuality of obligation and control, the tribunal found that the claimant regularly made himself available, was offered work frequently, and did not refuse work when available. It considered the regularity and substance of the work, the respondent's expectation that he would be available, and the fact that furlough correspondence in March and October 2020 was sent to him with other staff and referred to the possibility of redundancy. Applying the statutory definition of employee and authorities including Market Investigations, Ready Mixed Concrete, Autoclenz, Clark v Oxfordshire Health Authority, Khan v Checkers Cars Ltd and Dakin v Brighton Marina Residential Management Co Ltd, the tribunal concluded that the cumulative reality of the relationship was a contract of service and that Mr Cusack was an employee.

The tribunal could not determine the date on which status changed from worker to employee because the evidence before 2019 was limited and the claimant did not identify a specific date. It therefore held only that Mr Cusack may proceed to a final hearing in his unfair dismissal claim, with the question of when employee status arose left for later determination.