Claimant v Aweswim Ltd
Outcome
Individual claims
The unfair dismissal claim was rejected by the tribunal on 20 June 2024 because the claimant did not have sufficient length of service (two years) to bring the claim.
The tribunal found the claimant was not an employee or worker within the meaning of the Equality Act 2010, and therefore the tribunal had no jurisdiction to hear the disability discrimination claim.
The notice pay claim failed because the tribunal concluded the claimant was self-employed, not a worker or employee, and therefore had no entitlement to notice pay under employment law.
The holiday pay claim was dismissed for lack of jurisdiction as the tribunal found the claimant was self-employed and not a worker entitled to holiday pay under the Employment Rights Act 1996.
Facts
The claimant, a qualified swimming instructor, worked three shifts for the respondent swimming school in February-March 2024. The respondent offered instructors a choice between employed or self-employed status, with self-employed instructors receiving higher pay (£20/hour vs £18/hour) but no benefits. The claimant drafted and proposed his own contract explicitly stating he was an independent contractor, invoiced under his own brand 'A-Class Swimming' at £28/hour, and completed an IR35 assessment. A dispute arose over his hourly rate and employment status, and the engagement was terminated on 13 March 2024 after three shifts.
Decision
The tribunal found the claimant was neither an employee nor a worker, but was self-employed. The tribunal concluded there was a genuine right of substitution (exercised by other self-employed instructors), no requirement for personal service, and the claimant's own contractual terms and conduct demonstrated his clear intention to work as an independent contractor. The tribunal rejected the argument that he later changed his view on status, finding this was a litigation tactic. All claims were dismissed for lack of jurisdiction.
Practical note
Where a claimant drafts their own contractual terms explicitly describing themselves as an independent contractor and invoices under their own business brand, tribunals will closely scrutinize subsequent claims of worker status, particularly where the claimant has a history of multiple tribunal claims and the respondent can demonstrate a genuine right of substitution exercised by others in the same role.
Legal authorities cited
Statutes
Case details
- Case number
- 3303487/2024
- Decision date
- 5 December 2025
- Hearing type
- preliminary
- Hearing days
- 1
- Classification
- contested
Respondent
- Name
- Aweswim Ltd
- Sector
- education
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Swimming instructor
Claimant representation
- Represented
- No