Mr R Cheshire v Seafari Adventures (Oban) Ltd — 2023

The tribunal heard an unfair dismissal claim brought by Mr R Cheshire against Seafari Adventures (Oban) Ltd. The issue was whether he was an employee of the respondent, and if so what his length of service was. The tribunal heard evidence from Mr Cheshire and Tony Hill and accepted that Mr Cheshire carried out skipper work for the respondent through his separate business, Ocean Breeze Marine Services LLP, with invoices issued by that LLP and payment made to that LLP. There was no written contract between the claimant and the respondent, and the tribunal found the contractual relationship was between the respondent and Ocean Breeze Marine Services LLP, not between the respondent and Mr Cheshire personally.

Applying the relevant authorities on employee status, the tribunal considered control, mutuality of obligation, personal service and the wider economic reality. It noted that the work was seasonal, that there were periods when no work was done, that there was no agreed minimum level of work, and that Mr Cheshire was paid by invoice at an agreed rate. It also accepted that the respondent allocated the work, provided the boats, and exercised a considerable degree of control, but concluded that the balance of factors pointed to Mr Cheshire being in business on his own account rather than employed under a contract of service.

Because Mr Cheshire was found not to be an employee, the unfair dismissal claim failed. The tribunal added that, even if employee status had been established, the accepted gaps in seasonal work would have broken continuity of service, so he would not in any event have had two years' continuous employment for an unfair dismissal claim. The claim was therefore dismissed.