Mrs Hayley Harvey Smith v Glam Candy UK Limited — 2024

The tribunal accepted that Mrs Hayley Harvey Smith had been an employee of Glam Candy UK Limited from 31 August 2011 to 4 December 2023, even though she was the majority shareholder until June 2023, when she sold her 87% shareholding to Mark Thompson. It found that she had been given a contract of employment in January 2020 recording the August 2011 start date, that she was on payroll with tax and national insurance deducted, and that the respondent had not proved the contract was a sham. In deciding status, the tribunal applied the Ready Mixed Concrete approach, the Hall v Lorimer overall assessment and the Clark v Clark Construction Initiatives factors.

The tribunal found that, before and after the share sale in June 2023, the claimant continued to work personally for the respondent in a role centred on marketing and wider business functions. It accepted that she worked from respondent premises and shared workspaces, had no right of substitution, was integrated into the business and that the respondent had sufficient control over the relationship. It therefore held that she was an employee throughout the relevant period.

On dismissal, the tribunal rejected the respondent's redundancy narrative. Mr Thompson accepted that there was no genuine redundancy situation, no redundancy consultation or selection process, and the 4 December 2023 redundancy letter was found not to reflect the true position. Because the respondent did not establish a fair reason for dismissal under s.98 ERA 1996, the dismissal was unfair; the tribunal also noted that no appeal hearing was arranged.

Remedy was assessed under ss.118, 119 and 123 ERA 1996. Using 12 complete years' service and weekly pay of £769.23, the tribunal awarded a basic award of £7,716 and a compensatory award of £29,997 for loss of earnings plus £350 for loss of statutory rights. It also awarded £307.69 for unpaid wages on 1 and 4 December 2023, £10,000 for three months' contractual notice pay, and £2,923.15 for accrued but untaken annual leave, but rejected the redundancy payment and expenses claims.