Mr M Motin v Tui UK Ltd — 2018

At the preliminary hearing the claimant pursued an automatic unfair dismissal claim and holiday pay. He later withdrew the whistleblowing-based s103A complaint, leaving the s104 claim for dismissal for asserting a statutory right. The tribunal also had to decide status, because the respondents argued that the claimant had never been an employee or worker and therefore that the tribunal lacked jurisdiction.

The tribunal found that the written agreement broadly reflected the parties' bargain and that the day-to-day relationship followed its core terms. The claimant was recruited as a mentor after interview, police and Home Office checks, and training. The agreement required personal service, hourly pay, invoices, prior approval for other similar work, priority for the respondents' business, and included restrictive post-termination wording. In practice the claimant worked continuously, held himself out as a TUI mentor, used his own car and computer, and was treated for tax purposes as self-employed.

Those features were not enough to make him an employee. The tribunal relied on the absence of a contractual obligation to accept work, the freedom to arrange his own schedule, the absence of set hours, appraisal, performance management, disciplinary or grievance procedures, paid leave, sick pay, or employee benefits, and the parties' common treatment of him as self-employed. But the relationship was also not one of an independent contractor in business on his own account: the tribunal held that there was personal service without any true right of substitution, the claimant was held out as part of the respondents' organisation, and the arrangement had the characteristics of a dependent work relationship. The tribunal therefore found that he was at all material times a limb (b) worker.

Because he was not employed under a contract of employment, the s104 unfair dismissal claim was dismissed for want of jurisdiction. The holiday pay claim was not decided at this hearing; the tribunal directed the claimant to provide a schedule of calculation and the respondents to reply so that the holiday pay issue could proceed to a further hearing if it did not settle.