Ms S Bennett v The Aviator Hotel Ltd — 2023

The claimant began working for the respondent as a waitress in May 2015 on written terms that described her as an employee, but the tribunal looked beyond the labels in the documents and found the arrangement operated as a zero-hours relationship. It found the respondent was not obliged to offer her any shifts, and that the shifts she was allocated could be swapped or negotiated, so the relationship lacked the mutuality of obligation or irreducible minimum needed for employee status under s.230 ERA 1996. The tribunal therefore found she was never an employee, only a worker.

The tribunal accepted that from October 2018 the claimant was at university and that her working pattern changed so that she largely worked in holiday periods rather than during term time. It preferred the respondent's evidence that she had told management she would not be available during term time and should be taken off the rota until she returned home. It also accepted that the claimant's final shift was in early October 2020, after which the respondent paid her outstanding shift pay and accrued holiday pay in November 2020 and treated the engagement as having ended.

A redundancy process began in December 2020 and the claimant was not included in it. When she queried this in February 2021, the respondent realised she had not been processed as a leaver and later issued a P45 dated 5 February 2021. The tribunal held that the P45 date was not determinative and that the engagement had ended in October 2020 in any event. On that basis, the claimant was not employed when the redundancy process took place and had no standing to bring the unfair dismissal or redundancy payment claims.

The claimant's claim about missed furlough/CJRS payments also failed. The tribunal held that an employee could not force a place on the CJRS, that the scheme required agreement, and that there was no mechanism for a complaint of that kind where the tribunal had already found no continuing employment relationship. The wrongful dismissal claim failed because the tribunal found she was not entitled to notice pay on the facts and that all sums owed at the end of the engagement had been paid. All claims were dismissed and no monetary award was made.