Ms K McCarthy, representative For the v Respondent — 2022

At a preliminary hearing on 28 September 2022, Employment Judge Hyams, sitting alone, considered whether Mr F Rowland had sufficient continuous employment to bring an ordinary unfair dismissal claim against London Underground Limited. Mr Rowland did not attend, although he was represented by Ms K McCarthy, who sought a postponement because he was with his father in hospital. The tribunal proceeded with the service issue and noted that, if the claimant later had material evidence not already before the court, he could seek reconsideration under rule 70 of the Employment Tribunals Rules of Procedure 2013.

The tribunal found that the claimant had not proved that he was an employee of the respondent before 24 June 2019. The written material before the tribunal included the claimant's own grievance, which described him as working as a subcontractor through his private limited company for Morsons International Ltd in relation to work in 2019, and the respondent's letter of 18 June 2019 offering him a permanent Train Maintainer role effective from 24 June 2019, with accompanying terms stating that his employment would commence on that date. The judge said the written evidence pointed towards the conclusion that he was not an employee before 24 June 2019.

Because the tribunal found that the claimant was only an employee from 24 June 2019, he did not have the two years' continuous employment required for an ordinary unfair dismissal claim under section 108 ERA 1996. That claim was therefore dismissed. The claim for unpaid wages and holiday pay was also dismissed because it depended on the same issue of employee status before 24 June 2019.