EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4110426/2021 Held at Aberdeen on August & September 2022 Employment Judge J M Hendry Mr D Fong v Montgomery, Cordiner & Low t/a Raemoir Trout Fishery — 2022

This judgment determined a preliminary issue of employment status for Mr D Fong in relation to Montgomery, Cordiner & Low t/a Raemoir Trout Fishery. It did not decide the merits of the wider unfair dismissal or discrimination complaints. The tribunal found that Mr Fong had a history of mental illness and had initially helped at the fishery on a voluntary basis, but that on the days he worked and received vouchers between October 2018 and 31 August 2020 he was a worker under section 230(3)(b) ERA 1996, not an employee.

On the earlier period, the tribunal accepted that the vouchers were provided in return for work rather than as a goodwill gesture or fuel reimbursement, but it found there was no umbrella contract, no obligation on Mr Fong to accept work, and no sufficient pattern to show employee status. From 1 September 2020 the relationship changed: Mr Fong was put on the payroll as Fishery Attendant, paid through PAYE, given authority and equipment to run the fishery, and had an agreed regular commitment after giving up a day at SF. On that basis the tribunal held that he was an employee from 1 September 2020 until his engagement was terminated on 5 March 2021.