Mr M Idowu v Onorach Limited — 2021

This was a preliminary hearing on whether Mr M Idowu had the two years' continuous employment needed to bring an unfair dismissal claim against Onorach Limited. The tribunal accepted that he was an employee from 25 April 2019, but the claimant argued that he had been an employee from 7 August 2018. The disputed period was 7 August 2018 to 24 April 2019, when he worked at the respondent's premises through his limited company, Data2AI Limited.

The tribunal found that a number of facts pointed towards employment, including his working at the premises on a standard weekday pattern, use of the respondent's email and systems, a confidentiality agreement with him personally, and later draft employment documentation. It also found, however, that during the disputed period the respondent paid Data2AI Limited monthly invoices of £3,500, that the claimant withdrew the money from the company, and that he was not taxed through PAYE or national insurance as an employee would have been.

Particular weight was given to the claimant's own email of 19 February 2019, in which he referred to whether the respondent wanted him to be 'one of its employees' and asked to preserve the ability to run his company outside working time. The tribunal also attached significance to the fact that, during lengthy negotiations over the draft contract of employment, he did not ask to change the clause stating that the start date was 8 January 2019 and that no previous employment would count. The tribunal rejected the contention that the later start date inserted on the signed contract was a sham.

Applying the Ready Mixed Concrete approach and the statutory tests in the Employment Rights Act 1996, the tribunal concluded that the financial arrangement through Data2AI Limited was inconsistent with employment during the disputed period. It therefore held that Mr Idowu had not shown two years' continuous service by the dismissal date of 14 September 2020, and dismissed the unfair dismissal claim for want of jurisdiction. The remaining claims were left to a separate case management hearing.