Claimant v Ms Lathangi Kathirkamathamby
Outcome
Individual claims
Claimant was not employed under a contract of service within s.230(3)(a) ERA. Although there was mutuality of obligation and personal service, the considerable flexibility the Claimant retained over when she worked meant the relationship was not one of employment. This claim was therefore dismissed.
The tribunal found the Claimant was a worker but not an employee under a contract of service. Wrongful dismissal requires employee status under s.230(1) ERA, which was not established. Claim dismissed.
The Claimant was not employed under a contract of service (s.230(3)(a) ERA) and therefore the notice pay claim failed. Only worker status was established, insufficient for this claim.
Claim for statutory maternity pay under s.171 Social Security Contributions and Benefits Act 1992. Dismissed because the Claimant was not an employee within the meaning of s.230(3)(a) ERA, which was agreed to be determinative of this claim.
Facts
The Claimant worked as a live-in carer for an elderly client from March/April 2022 until termination in December 2022. She was recruited by the First Respondent, a sole trader operating Blue Crystal Care Agency registered with the CQC. Payments were made by the Second Respondent company. The Claimant worked 8am-8pm shifts, alternating night duties, for £100/day (£200 on bank holidays) paid weekly. She was told she was self-employed, responsible for her own tax. She had significant flexibility over days off (subject to notice and replacement availability) but was subject to considerable control over how care was delivered due to regulatory requirements.
Decision
The tribunal found the Claimant was a worker under s.230(3)(b) ERA and employee under the EqA 2010, but not an employee under a contract of service (s.230(3)(a)). Despite mutuality of obligation, personal service and high control over work performance, the considerable flexibility the Claimant retained over when she worked was inconsistent with employment status. All claims requiring employee status (unfair dismissal, wrongful dismissal, statutory maternity pay) were dismissed. Claims against the Second Respondent were dismissed as the employer was the First Respondent.
Practical note
Significant worker autonomy over when to work, even with high employer control over how work is performed and strong regulatory oversight, can prevent a relationship being one of employment despite meeting tests for mutuality and personal service.
Legal authorities cited
Statutes
Case details
- Case number
- 3303908/2023
- Decision date
- 23 February 2025
- Hearing type
- preliminary
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- live-in carer
- Service
- 8 months
Claimant representation
- Represented
- Yes
- Rep type
- barrister