Claimant v Cumbria Smiles Limited
Outcome
Individual claims
This was a preliminary hearing on employment status only. The claim for automatically unfair constructive dismissal was not determined at this stage. The tribunal found the claimant was a worker but not an employee, meaning this claim cannot proceed as unfair dismissal requires employee status.
This detriment claim was not determined at this preliminary hearing. The tribunal's finding that the claimant was a worker means this claim can potentially proceed, but the merits were not addressed at this stage.
The notice pay claim was not determined at this preliminary hearing. The tribunal found the claimant was a worker but not an employee. Whether worker status is sufficient for this claim to proceed was not addressed.
This sex discrimination claim was not determined at this preliminary hearing. The tribunal found the claimant was a worker, which satisfies the definition of employment under s.83 Equality Act 2010, meaning this claim can potentially proceed, but the merits were not addressed.
This wages claim was not determined at this preliminary hearing. The tribunal's finding that the claimant was a worker means this claim can potentially proceed under s.230(3)(b) Employment Rights Act 1996, but the merits were not addressed.
Facts
The claimant, a dentist requiring a work visa, was engaged by the respondent dental practice under a written self-employment contract negotiated through a recruitment agency. She was paid per Unit of Dental Activity and had flexibility over her working hours, but the contract contained a minimum service level and restraint of trade clause. The claimant set her own hours, could cancel appointments, and had one other role at a Darlington practice for 8 hours on Saturdays. There was a discrepancy between her employee visa status and the self-employment contract, which both parties acknowledged.
Decision
The tribunal held that the claimant was a worker under s.230(3)(b) Employment Rights Act 1996 and s.83 Equality Act 2010, but not an employee. The lack of mutuality of obligation defeated employee status, as the respondent was not obliged to provide work and the claimant was not obliged to accept it. However, personal service was the dominant feature of the contract, with no genuine right of substitution, and the claimant was not in business on her own account. The tribunal reserved the question of illegality arising from the visa issue for the full merits hearing.
Practical note
A professionally drafted self-employment contract will not defeat worker status where personal service is the dominant feature and there is no genuine substitution right, even where the individual has some flexibility over hours and one additional modest role elsewhere.
Legal authorities cited
Statutes
Case details
- Case number
- 6015846/2024
- Decision date
- 22 October 2025
- Hearing type
- preliminary
- Hearing days
- 1
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Dentist
Claimant representation
- Represented
- No