Case 4114216/2019 · Employment Tribunal
Ms Gwendo Minto v Instructed by Messrs Kippen Campbell Perth and Kinross Council and 1 other — 2021
- Case reference
- 4114216/2019
- Decision date
- 15 January 2021
- Jurisdiction
- Scotland
- Judge
- Employment Judge D Hoey
Parties
3 namedClaimant
Ms Gwendo Minto
Key findings
Tribunal's reasoningMs Gwendo Minto had worked for Perth and Kinross Council since 2002 as a marriage attendant and later marriage officer under a series of written supply-worker agreements in 2002, 2007 and 2013. Those agreements repeatedly stated that the Council was under no obligation to offer work, she was under no obligation to accept work, and inclusion on the register brought no employment rights. Work was offered on an ad hoc basis, the claimant accepted assignments when available, and holiday pay was included within gross pay.
The relationship between the claimant and Ms Lorimer deteriorated over time, and the tribunal made detailed findings about incidents in 2014, 2015, 2016 and 3 June 2019. The tribunal preferred Ms Lorimer's account of the 3 June 2019 exchange, including the claimant's words when leaving the office. It found that the working relationship had broken down and that, after that incident, no further assignments were offered. The tribunal accepted that the claimant provided personal service, but found that the respondent's control over how the work was done was limited.
Applying the authorities it cited on employment status, including Ready Mixed Concrete, Carmichael, Autoclenz, St Ives, Hafal and the mutuality of obligations line of cases, the tribunal held that the written terms reflected the reality of the arrangement. It found there was no sufficient mutuality of obligations: the Council was not bound to provide work or a retainer, and the claimant was not bound to accept work. As a result, she was not an employee for the purposes of section 230 of the Employment Rights Act 1996.
Because the claimant was not an employee, the unfair dismissal claim was dismissed. The wrongful dismissal / notice pay claim and the holiday pay claim were both contingent on the success of the unfair dismissal claim and were also dismissed. The tribunal recorded that holiday pay had already been paid within gross pay, and it found no breach of contract in the Council's decision to end the casual working relationship by ceasing to offer further assignments.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Dismissed because the tribunal found the claimant was not an employee within section 230 of the Employment Rights Act 1996. | Dismissed | — | — |
| Wrongful dismissal | The notice pay / breach of contract claim was contingent on the unfair dismissal claim and was dismissed because the respondent was not in breach of contract when it stopped offering further assignments. | Dismissed | — | — |
| Holiday pay | Dismissed because the claimant accepted that holiday pay had been rolled up into gross pay and shown separately on payslips. | Dismissed | — | — |
Legal tests applied
6 references- s.230 ERA 1996
- Ready Mixed Concrete test
- Autoclenz approach
- Carmichael mutuality of obligations
- Burchell test
- s.98(4) ERA 1996
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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