Miss R Owusu-Agyei, Counsel For the v Respondent — 2020

The claimant brought a holiday pay claim said to be worth £2,308.50 after working as a PPI Handler for Nationwide through Advantage Resourcing UK Limited. She had worked through her own limited company, Alexandra Consultancy Limited, and at the start of the hearing she withdrew her assertion that she was an employee of the respondent while maintaining that she was a worker. She also sought to amend the claim to add an Agency Workers Regulations 2010 point.

The tribunal refused the amendment. Applying Selkent and the overriding objective, it held that the proposed AWR allegation was a new cause of action, raised very late shortly before a third listed final hearing, was likely out of time, and would have required further enquiry and an adjournment. The tribunal considered that this would have caused disproportionate prejudice to the respondent.

On the merits, the tribunal held that the claimant was not a worker under section 230 ERA 1996 or regulation 2(1) of the Working Time Regulations 1998. It accepted that she had worked through Alexandra Consultancy Limited, had professional indemnity and employers' liability insurance, was paid by reference to approved timesheets at £150 per day, and had a contractual substitution clause. Although she was subject to day-to-day supervision at Nationwide, the tribunal found the arrangement was not a sham and that the relevant contract was between her service company and the respondent. The claims for unlawful deduction of wages and for payment in respect of untaken annual leave therefore failed, and no award was made.