E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4108024/20205 In the Employment Tribunal (Scotland) at Edinburgh Judgment of the Employment Tribunal in Case No. 4108024/2020 issued following Open Preliminary Hearing conducted on Cloud Based Video Platform at Edinburgh on May, June and & September 2021 with deliberation on October 2021 Employment Judge J G d’Inverno Mrs W Graham v Represented by Mr E Obi, HR Professional Denburn Funeral Service Ltd and 2 others — 2021

This was an open preliminary hearing on employment status and time bar, not a merits determination. The tribunal held that the claimant remained an employee of Denburn Funeral Service Ltd under section 230 ERA 1996 for the period 13 August 2020 to 2 October 2020. It found that the respondent had not proved an express consensual variation on 13 August 2020 to replace the employment relationship with self-employment. The tribunal accepted that the claimant agreed a change to remuneration to £250 per funeral, but held that the surrounding factors, including PAYE/P45 steps and invoicing, were not fundamentally inconsistent with continued employment.

In reaching that conclusion, the tribunal relied on findings that the claimant's duties, working pattern, and relationship to the respondent's business were materially unchanged before and after 13 August 2020. It found that she continued to provide personal service, remained under sufficient control, and that the other arrangements relied on by the respondent did not displace the existing contract of employment. The tribunal also held that the effective date of termination was 2 October 2020.

On jurisdiction, the tribunal held that the ET1 presented on 29 December 2020 was in time after early conciliation, so the unfair dismissal complaint, notice pay, holiday pay, and arrears of pay claims were timeously presented and could proceed. It also held that the ET1 gave sufficient notice of a harassment related to sex complaint under section 26 Equality Act 2010, but only so far as it was founded on acts or omissions after 30 September 2020. The issue whether earlier allegations formed part of a continuing act for time-bar purposes was reserved for final hearing under section 123(3)(a) Equality Act 2010.

The tribunal made no findings on liability for dismissal, wages, holiday pay, or discrimination, and no remedy was awarded at this stage. It directed the parties to write in within 42 days with proposals for further procedure, including whether the case should be listed for a final hearing on the merits.