Case 4113691/2021 · Employment Tribunal
IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Judgment of the Employment Tribunal in Case No: 4113691/2021 Heard at Edinburgh on the st November 2022 Employment Judge J G d’lnverno Mrs L Mason
The tribunal heard a preliminary issue at Edinburgh on 21 November 2022 about the claimant's employment status and title to sue, with the effective date of termination recorded as 29 September 2021. It found that from around December 2009 the claimant and the respondent's director, Mr Astles, entered into an express contract of employment. The tribunal accepted that the claimant was paid a fixed monthly wage of £800, performed services personally, and was subject to Mr Astles's control, albeit with a flexible pattern of attendance.
The tribunal found that the claimant's concurrent part-time cleaning and housekeeping work for a third party, and her personal buying and selling of items for profit, did not prevent her being an employee. It also held that her later appointment as a co-director did not end the existing employment contract. In reaching that conclusion, the tribunal referred to section 230 ERA 1996, section 83(2) Equality Act 2010, Ready Mixed Concrete, Carmichael, Uber, and the business efficacy test, and it accepted the evidence of the claimant, Mr Astles and the company accountant, Mr Gow, that the arrangement was intended to create employee status.
The tribunal therefore held that the claimant was an employee at the material times and had title to present her unfair dismissal and sex discrimination complaints. It also recorded jurisdiction to consider notice pay, holiday pay and arrears of pay, subject to a reserved time-bar issue. The judgment did not decide the merits of any substantive complaint or award any remedy, and it stated that the employment status finding did not mean the claims would succeed.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Preliminary issue only. The tribunal held that the claimant was an employee at the material times and therefore had title to present the unfair dismissal complaint, but it did not decide the merits or any remedy. | Other | — | — |
| Sex discrimination | Preliminary issue only. The tribunal held that the claimant was an employee for section 83(2) Equality Act 2010 purposes and had title to present sex discrimination complaints, but it did not determine liability or remedy. | Other | Sex | — |
| Breach of contract | The tribunal recorded jurisdiction to consider the claimant's notice pay complaint, but this judgment decided only employment status and did not determine liability or damages. | Other | — | — |
| Holiday pay | The tribunal recorded jurisdiction to consider the claimant's holiday pay complaint, but this judgment decided only employment status and did not determine liability or damages. | Other | — | — |
| Unlawful deduction from wages | The tribunal recorded jurisdiction to consider the claimant's arrears of pay complaint, but this judgment decided only employment status and did not determine liability or damages. | Other | — | — |
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