Claimant v Om Erin Ltd t/a Bromptons Opticians
Outcome
Individual claims
The tribunal found that from November 2018 the claimant was not an employee but a self-employed locum optician. By February 2022, she was working under a client-customer relationship with complete control over when she worked, no mutuality of obligation, and invoicing for services. Without employee status, she had no standing to bring an unfair dismissal claim.
The claim failed at the threshold issue of employment status. The tribunal concluded the claimant was not an employee as of February 2022 but was instead a self-employed locum providing services to the respondent as a client. Without a contract of employment, there could be no wrongful dismissal.
The tribunal found the claimant was operating as a self-employed locum from November 2018 onwards, not under a contract of employment. The relationship was one of client-customer. She had full control over which days to work, could and did refuse work, and invoiced for services rendered. No employment contract existed to be breached.
To succeed in a holiday pay claim, the claimant needed to establish worker status. The tribunal found that from November 2018 the relationship was one of client-customer, not worker-employer. The claimant was in business on her own account, invoicing clients including the respondent. She therefore had no entitlement to holiday pay under the Working Time Regulations.
The disability discrimination claims were struck out prior to the final hearing due to the claimant's failure to comply with an Unless Order requiring production of medical evidence to establish disability by 10 May 2024. The claims did not proceed to substantive determination.
The indirect disability discrimination claim was struck out prior to the final hearing due to the claimant's non-compliance with an Unless Order to provide medical evidence. Judge Goodman's order of 2 April 2024 required production of impact statement, GP records and medical reports by 10 May 2024, failing which the disability claims would be struck out. The claimant failed to comply.
Facts
The claimant was initially employed as a trainee dispensing optician from September 2017 to November 2018 on a part-time PAYE basis. In November 2018, due to her salary expectations exceeding what the respondent could afford to pay an employee, the parties agreed she would switch to self-employed locum status, allowing her to earn more. From that point she submitted monthly invoices, had complete freedom to accept or refuse work, and worked for other practices. She last provided services in November 2021 and in February 2022 the respondent withdrew supervision under the ABDO training scheme.
Decision
The tribunal found that from November 2018 onwards the claimant was not an employee or worker but a self-employed locum optician. The respondent had become her client. She had no mutuality of obligation, controlled when she worked, could refuse work at will, and invoiced for services. Without employee or worker status, all her claims (unfair dismissal, wrongful dismissal, breach of contract and holiday pay) were dismissed at the threshold stage. Her disability discrimination claims had already been struck out for non-compliance with case management orders.
Practical note
Employment status turns on the reality of the working relationship, not labels - a tribunal will look at control, mutuality of obligation, and whether the individual is truly in business on their own account, and written agreements documenting status changes are essential to avoid disputes.
Legal authorities cited
Statutes
Case details
- Case number
- 2207963/2022
- Decision date
- 6 September 2024
- Hearing type
- full merits
- Hearing days
- 4
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- No
Employment details
- Role
- Trainee Dispensing Optician
- Service
- 4 years
Claimant representation
- Represented
- No