Mrs M Mitchell v Club and 3 others — 2020

The tribunal heard a single preliminary issue: whether Mrs M Mitchell was employed by Carnegie Swimming Club so that her unfair dismissal complaint could proceed. It found that she had initially coached on a voluntary basis and moved to paid coaching in October 2013, submitting monthly invoices, paying her own tax and national insurance, and receiving no payslips or P60s. The tribunal found there was no written agreement in place, rejecting evidence that a signed contract had been presented and accepted in 2014.

In assessing status, the tribunal applied the usual employment-status authorities, including the approach in Ready Mixed Concrete, Autoclenz, Pimlico Plumbers and Hall v Lorimer. It found that the claimant did not have an obligation of personal service because she could arrange substitutes without informing or consulting the club, subject only to qualifications required by Scottish Swimming. The tribunal held that those limited restrictions were regulatory rather than imposed by the respondent, and were inconsistent with personal performance being the dominant feature.

The tribunal also found that the claimant was not subject to a sufficient degree of control by the club. She controlled how the coaching was delivered, was not subject to day-to-day direction, and any timing or location constraints arose from pool availability rather than managerial control. Although the tribunal accepted there was some mutuality of obligation, and noted certain features that could point towards employment, such as reimbursement of some expenses and a contribution to a training course, it regarded those as limited and not enough to outweigh the other factors.

Standing back and assessing the relationship as a whole, the tribunal concluded that the reality was that the claimant was not an employee of the First Respondent within s.230(1) ERA 1996. As a result, the unfair dismissal complaint could not proceed and was dismissed. No monetary award was made.