Mr K Mohod v Mark Priestley SDT Limited PRELIMINARY HEARING — 2019

At the preliminary hearing on 7 December 2018, Employment Judge R Lewis sat alone and the respondent did not attend or advance any case on the merits. The respondent's response said only that the claimant was not an employee and had invoiced the company on a freelance basis. The issue listed for determination was whether the claimant was an employee or a worker and whether the tribunal had jurisdiction to consider the claims.

The tribunal found, on the claimant's evidence and the documents produced, that he had previously worked for the respondent in 2014 and returned in late August 2016 after being asked to come back because there was work and a shortage of drivers. The claimant said he was offered £12 per hour for 12-hour night shifts, told he would go on the payroll after three months' probation, was not given a contract or payslips, and worked regular shifts with no right to send a substitute. He described being given written shift instructions, driving branded vehicles, wearing respondent-branded uniform, and completing weekly timesheets signed by supervisors.

Applying the approach in Ready Mix Concrete 1968 2QB 497, the tribunal considered mutuality of obligation, control, and whether there were features inconsistent with employment. It found mutuality of obligation because the claimant was expected to attend when required and the respondent provided shifts, and it found control because the claimant worked within the respondent's systems and management, including branded vehicles and uniform, written instructions, security arrangements, and checked timesheets. The absence of paperwork and the invoice-based payment arrangement were given little weight because those matters were within the respondent's unilateral control, and the tribunal did not accept that submitting an invoice changed the relationship.

The tribunal held that the claimant was an employee of the respondent and therefore had power to hear the breach of contract claim. It added that, if it were wrong about employee status, it would have found that the claimant was a worker and that the tribunal had power to hear the unlawful deductions claim. No liability or remedy was determined at this preliminary hearing.