Dakin v Brighton Marina Residential Management Company Ltd and Another (Disability Discrimination : Disability): EAT 26 Apr 2013

EAT JURISDICTIONAL POINTS – Worker, employee or neither
An Employment Tribunal dismissed claims for holiday pay and unfair dismissal apparently on the basis that the Claimant was not a worker within the Working Time Regulations nor an employee within s.230 Employment Rights Act 1996. The principal reason for doing so was a lack of proof of mutuality of obligation; though the Employment Judge also considered whether there was a right to substitution he did not clearly resolve the point, and observed (inconsistently, if he had found an unfettered right of substitution) that the Claimant ‘might well’ have been a worker, without resolving that either. He was also unclear whether he considered the Claimant was actually integrated into his putative employer’s business.
He was held to have taken the wrong approach to mutuality by looking for evidence of precision in the hours and days to be worked rather than asking whether the history of the relationship showed it had been agreed there was an obligation to do at least some work and a correlative obligation on the Respondent to pay for it; to have illogically appeared to consider that the rate of pay (andpound;15 ph) assisted in deciding whether the Claimant was an employee or was rather a worker (or neither); and had failed to make necessary findings such as whether the Claimant was a worker, or was entitled (as a matter of inferred agreements) to substitute another’s labour for his in performing the work.
The question of status (employee, worker or neither) was remitted for fresh determination by a different Judge.

Langstaff P J
[2013] UKEAT 0380 – 12 – 2604
England and Wales

Employment, Discrimination

Updated: 18 November 2021; Ref: scu.514153