Represented by:15 Mr I Burke Solicitor Eildon Housing Association Limited v 20 Represented by: Ms S Macphail Solicitor 25 — 2019

The tribunal heard a preliminary issue on whether Miss Patterson was an employee or a worker when the alleged protected disclosure was made, and whether she therefore had the protection of sections 94, 98 and 103A of the Employment Rights Act 1996. She had worked for Eildon Housing Association Ltd as a Support Worker from 18 January 2016 until 31 August 2017, then emailed on 25 July 2017 that she was handing in her notice as a full-time member of staff and wanted to join the relief staff team from 1 September 2017.

The tribunal accepted the respondent's account of the move to relief work and rejected the claimant's case that the resignation and new contract were only paperwork or that she remained an employee. It preferred the evidence of Mrs Macleod over Mrs Taggart on the operational arrangements, and found the claimant's evidence on those points not credible. The tribunal also found that the written relief bank worker statement reflected the reality of the relationship, including the fact that the claimant did accept, reject and cancel shifts in practice.

Applying the Ready Mixed Concrete, Nethermere and Carmichael line of authority, together with Stevedoring and Haulage Services Ltd v Fuller and Autocleanz Ltd v Belcher, the tribunal held that personal service and control were present but mutuality of obligation was not. It found that from 1 September 2017 to 2 July 2018 the claimant was a worker and not an employee, so she was not entitled to the protection of sections 94, 98 and 103A ERA 1996. The judgment did not determine any monetary remedy and did not address the notice pay or holiday pay claims in this decision.