Member J Lindsay Tribunal Member J Whitfield Mr D Lithgow v Adventure Aviation Limited — 2023

The tribunal held that Mr Lithgow was not an employee for the purposes of section 230 of the Employment Rights Act 1996 or the Employment Tribunals (Extension of Jurisdiction) (Scotland) Order 1994, so his contract claim failed on that basis. It found, however, that he was a worker for the purposes of the Working Time Regulations 1998 and section 230 of the 1996 Act, and an employee for the purposes of section 83 of the Equality Act 2010, from the start of the arrangement until 14 September 2023. In reaching that conclusion the tribunal treated the relationship as a real contract for personal flying instruction services, with Adventure Aviation providing the aircraft, bookings, students and other infrastructure, although the claimant worked flexibly, invoiced initially, and later accepted direct payment from students after his own July 2023 suggestion.

The age discrimination, harassment and victimisation claims all failed. The tribunal did not accept the claimant's evidence that age-related remarks had been made by the second respondent, or that he had made protected acts on 26 August 2023 or 2 September 2023. It found that the claimant's complaints about being given less work and about the end of the relationship were not shown to be because of age, and that the respondents' explanation was that concerns had arisen about the 10 August 2023 airprox incident, the 28 August 2023 call about the fuel sump drain valve, and the claimant's conduct at the 2 September 2023 meeting about the draft insurance letter.

The tribunal applied the burden of proof approach in equality cases and held that the claimant had not established facts from which age discrimination could be inferred. Even if the burden had shifted, it found that age played no part in the decision not to allocate further work from around June 2023 or in the decision to end the arrangement in September 2023. Claims against the second and third respondents under sections 111 and 112 of the Equality Act 2010 were also dismissed because no substantive Equality Act breach was found against the first respondent.

The claimant succeeded only on the financial claims. The tribunal found that the first respondent had made an unauthorised deduction in relation to accrued annual leave and awarded £531.96 for 7.58 days under regulation 14 of the Working Time Regulations 1998. It also found that no written particulars had been provided and made an award of £561.48 under section 38 of the Employment Act 2002, using four weeks' pay. The total award was £1,093.44.