in person For the v - Mr T Hussain (litigation Consultant) — 2020

The tribunal heard evidence from the claimant, two respondent witnesses, and members of the claimant's family. It found that the claimant's written contract with the respondent commenced on 3 October 2016, and that this date was supported by the starter form, internal email introducing her as a personal and administrative assistant, payroll records, and the fact that the first salary payment from the respondent's account was made in October 2016. Although it accepted that there were discussions and some work in September 2016, the tribunal found that this work was done as part of the claimant's existing domestic work for the Maharajah family rather than under a contract of employment with the respondent.

On that basis the unfair dismissal claim failed because the claimant did not have the two years' continuous service required by section 108 ERA. The tribunal referred to section 211 ERA when considering when continuous employment begins, and concluded that the relevant employment started on 3 October 2016, so the employment had not reached two years by the termination date of 16 September 2018. It also noted that the September payment relied on by the claimant had been made by Ms Maharajah rather than from the respondent's payroll account, and was for a different amount from the later regular salary payments.

The unlawful deduction from wages claim also failed. The tribunal accepted that the claimant had, on occasions, sent emails outside her contracted hours and had sometimes done work beyond her normal hours, but it found that she was not required to do so, that there was no express agreement for overtime pay, and that her contract contemplated long hours when necessary without providing for overtime. It therefore concluded that there was no legal entitlement to additional payment at her usual hourly rate. It also rejected the suggestion that commission was due in relation to WHSmith, finding that the deal never completed.

Separately, the tribunal refused leave to amend the ET1 to add race and disability discrimination complaints, applying Selkent and the overriding objective and noting the lateness of the application, the expansion of the issues, and the prejudice to the respondent. After the hearing it declined to admit late diary evidence from the claimant, and it later directed that a new disability discrimination claim should be rejected as an abuse of process and because of the mismatch between the ACAS certificate and the respondent named on that new claim.