Mrs l Ilett v Mrs A McKevitt — 2019

The tribunal found that Mrs Ilett contracted with Mrs Anne McKevitt, but that she was not an employee. It accepted that the care arrangement was set up as a self-employed arrangement, that Mrs Ilett worked to that arrangement, submitted invoices, dealt with her own tax and national insurance, and had claimed state maternity allowance rather than maternity pay when she stopped work while pregnant. On that basis, the notice-pay claim was dismissed and the statutory redundancy-payment claim was dismissed.

The tribunal held that Mrs Ilett was nevertheless a worker. It found that she provided care personally, could not send a substitute of her own choosing, did not provide tools or equipment, and did not operate a profession or business undertaking of her own. The tribunal also noted that the respondent increased sleepover pay to meet minimum wage levels from 17 March 2018, which it treated as consistent with an acceptance that the sleepover work attracted worker rights, although that was not decisive.

On annual leave, the tribunal accepted written evidence of holiday requests and approvals for 22-26 October 2018 and 9-11 and 16-18 November 2018, and found that the claimant had also taken 22 June-7 July 2018 and 16-18 August 2018 as holidays. Because the evidence as to the surrounding periods was limited, it calculated the award on the basis of four weeks' leave. Using the agreed average weekly pay of £318.51, it awarded £1,274.04 under the Working Time Regulations 1998.

On the sleepover claim, the tribunal found that Mrs Ilett was at the house throughout the overnight shift, was required to respond when needed, and remained alert to the audio monitor, so the sleepovers were working time for National Minimum Wage purposes rather than mere availability within regulation 32(2). Applying Wright v Scottbridge Construction Ltd, it concluded that 18 sleepovers between 1 January and 17 March 2018 were underpaid by £44 each, producing an award of £792. The total monetary award was £2,066.04.