Ms Sunitha Kemlo v Represented by:10 Mr N Paterson - Solicitor Blackfaulds House Nursing Home Limited — 2023

At the public preliminary hearing on 30 and 31 May 2023, the tribunal decided only the preliminary issue of whether Ms Sunitha Kemlo was employed by Blackfaulds House Nursing Home Ltd for the purposes of the Equality Act 2010 during the period from about June 2021 to 24 September 2022. The claimant had said she brought claims of direct race discrimination, race-related harassment, and unfair constructive dismissal under the Equality Act 2010.

The tribunal found that the work was carried out through Bizz Nurse Ltd, which invoiced the respondent and received payment for the claimant’s services. It found there was no contract between the claimant and the respondent, no mutuality of obligation or irreducible minimum of work, and no requirement for personal service. The claimant could choose not to work a shift without permission, and on occasions she arranged for another nurse to cover; the tribunal also found that she carried on a business undertaking through Bizz Nurse Ltd, with the respondent acting as a client or customer.

In reaching that conclusion, the tribunal referred to Sejpal, Uber, Bates van Winkelhof and Pimlico Plumbers, and directed itself to the statutory definitions in s.83 EqA 2010 and s.230 ERA 1996. It considered the factors of personal service, substitution, predominant purpose, subordination, control and integration, and preferred the respondent’s evidence that the claimant was not subject to appraisals or training by the respondent. The tribunal therefore held that it had no jurisdiction to determine the Equality Act complaints and dismissed the claim.