Claimant v Lothian Health Board — 2023

The preliminary hearing considered whether the claimant had been an employee for long enough to bring an unfair dismissal claim. The claimant had worked on projects connected with the respondent from May 2013, initially through Consort and through his own limited company, and later invoiced the respondent directly after IR35 changes. He was provided with equipment, an email address and an office, and was seen externally as part of the respondent's team.

The Tribunal found that before November 2020 the parties' arrangements were not consistent with a contract of employment. The claimant invoiced for work, was paid through his company, charged VAT and fuel costs, was not subject to the respondent's disciplinary, grievance or sickness absence procedures, did not receive pension or paid sick leave, and could decide whether to work and when to take holiday. The Tribunal also noted that the parties understood the distinction between contractor and employee status and continued with a provision of services arrangement.

The Tribunal concluded that the claimant was not an employee until November 2020. As his employment ended in May 2022, he did not have two years' continuous employment for the purposes of s.108 ERA, so the Tribunal had no jurisdiction to hear the unfair dismissal claim and dismissed it.