Claimant Successfully Proves Employee Status for Notice and Redundancy Pay

OUTCOME: Allowed

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Case Number: 2309481/2025

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] London South (video/CVP)

On: 6 May 2026

Before: Employment Judge Wright

Representation:

Claimant: [redacted]

Respondent: [redacted]

The claimant was an employee of the respondent for the purposes of s.230 Employment Rights Act 1996. That aspect of her claim succeeds.

REASONS

1. The hearing started late. This was due to the claimant not being ready to commence the hearing and/or technical difficulties. When the hearing started, the claimant could not be heard. She then switched her camera off to preserve bandwidth. She was asked to switch her camera on, but did not do so.

2. The claimant was disconnected and an adjournment was taken in order for her to connect. The hearing resumed, however, there were still issues with the claimant’s connection/technology. The claimant was asked where she was and she said she was in South Africa. The hearing was paused whilst the position in respect of the state of South Africa was established. Fortunately, the Guidance: Taking and giving evidence by video link from abroad in UK court cases and tribunals confirmed that; individuals in South Africa can voluntarily give evidence from South Africa by video link in UK civil, commercial and administrative tribunals (either as a witness or when appealing a case).

3. The next issue was the claimant’s connection and her location. It appeared she was using her telephone to join the hearing and when she

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was asked where she was as she appeared to be on a terrace. She said that [NAME] had been taken ill, she had flown out to South Africa two days ago and she was in the [COMPANY]. As the claimant was in a public place, she was in effect broadcasting the hearing. That is not permitted and the claimant was disconnected.

4. Ms [APPELLANT] had introduced herself as the claimant’s [APPELLANT] friend and a former colleague. She had said she was there to represent the claimant or to assist the claimant if she was too nervous to present her claim.

5. After the claimant was disconnected, Ms [APPELLANT] was asked to obtain the claimant’s authority to represent her and to confirm the same via email during the break. It was also drawn to Ms [APPELLANT] attention that if the claimant was found to be an employee in respect of her claim for notice pay and a redundancy payment, that could mean she had underpaid tax and national insurance ([NAME]) to HMRC (if she has paid on a self-employed basis), HMRC may seek to recover any underpayment.

6. The claimant did authorise Ms [COUNSEL] as her representative, but it was not clear from her email that she understood the point about any underpayment to HMRC. She said that as self-employed, she had paid her own tax and [NAME] and she believed she had the same legal rights as people with contracts (employees or those paid via PAYE).

7. It was confirmed Mr [NAME] was a sole trader and he traded as [NAME] [RESPONDENT].

8. The Tribunal had before it a bundle running to 54-pages and witness statements from both the claimant and the respondent. Both had provided written submissions (which appeared to be AI generated, although that is not a criticism).

9. Ms [RESPONDENT] and the respondent made brief submissions.

10. The facts are not in dispute. What is disputed is the legal interpretation of those facts.

[NAME]. The chronology is that the claimant’s engagement with the respondent commenced on the 4 September 2018. She was a teacher of maths and science for students in years 9, 10 and [NAME] ([NAME] [NAME] is when students take GCSEs). The [RESPONDENT] was a small independent [RESPONDENT]. Her engagement ended on the 15 June 2025 when the [RESPONDENT] was suddenly closed as a result of an Ofsted inspection.

12. As a result, the claimant has claimed a redundancy payment and notice pay.

13. The claimant’s submission was that the reality of the situation was that she was an employee. She cited the following matters:

(1) She worked under the direct control of the respondent.

(2) If she was away, she was required to set cover work for other staff

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to deliver to the students.

(3) She took time off in term-time (over the Christmas holidays) to visit her mother in South Africa, she did so at the end of one term and the start of the next and she sought permission to do so.

(4) Her lessons were observed and reviewed.

(5) She completed courses as required by the respondent.

(6) She signed the safeguarding policy and others.

(7) She worked hours as per the timetable and would invigilate exams, in addition to supervising trips.

(8) The respondent provided the equipment (whiteboards, science equipment and chemicals).

(9) She was required to attend inset days and had to work around changes of lessons, such as unexpected timetable changes.

(10) She followed instructions on what to teach and when. Furthermore, she had little say in the number of lessons allocated per subject per week, class sizes, the students, the exam board used and the length of the mock exam.

14. Based on this, she asked the Tribunal to find she was an employee.

15. All of this was evidenced in documents in the bundle. In respect of 13(10), the position there were several emails where the claimant asked for students to be switched or for lessons to be changed around. There were however proposals or suggestions to the respondent.

16. The respondent’s position was that the claimant was self-employed and he relied upon the following factors:

(1) There was no written contract with the claimant, whether written or oral.

(2) The claimant operated as a self-employed tutor who provided services to the [RESPONDENT] as one of a number of her income streams.

(3) She provided invoices, which were paid upon submission.

(4) She was responsible for her own tax and [NAME].

(5) She did not receive employee benefits such as holiday pay, sickness pay or pension contributions.

(6) She determined her own hourly rate and in July 2023 she requested an increase in the hourly rate from £30 to £35.

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(7) This was a commercial negotiation and was consistent with her operating as an [NAME], rather than an employee.

(8) The claimant produced her own invoices which included teaching hours and additional items such as marking, report writing, communicating with parents and preparatory work. With the amount of time claimed determined by the claimant.

(9) The respondent submitted this indicated the claimant exercised control over how her work was defined. This was in contrast with the employed staff.

(10) There was no mutuality on the respondent to provide work to the claimant. Nor was there any obligation upon her to accept any work offered.

([NAME]) Both parties aimed to maintain continuity for [NAME], but this was a matter of goodwill and practicality, rather than contractual obligation.

(12) The claimant could decline tasks. The respondent gave one example of when the [RESPONDENT] closed, the claimant was asked to assist with storing chemicals in the laboratory and she refused. No disciplinary process was applied.

(13) The claimant undertook private tutoring, including tutoring [NAME] associated with the [RESPONDENT] and she charge parents directly for that work. Furthermore, that work was carried out independently of the [RESPONDENT]. The respondent submitted this amounted to her operating a business on her own account.

17. The respondent then set out the legal framework.

18. The parties referred to cases familiar to those including this Tribunal on the issue of employment status, including: [COMPANY] v Minister of Pensions [1968] 2 QB 497; [COMPANY] v Gardiner [1984] ICR 612; [COMPANY] v Belcher [2011] UKSC 41; and Uber BV v Aslam [2021] UKSC 5.

19. A [RESPONDENT] who is at the disposal of the employer and who provides their labour in return for financial benefit (usually pay) works under a contract of employment. Under some working arrangements, an individual can have the status of a ‘worker’. Here the payments the claimant is claiming rely upon her being an employee under s.230 Employment Rights Act 1996 (ERA). The statutory definition is not particular helpful and it provides:

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230 Employees, workers etc. (1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

20. The starting point is the test set out in Ready Mixed Concrete and a contract of employment will exist if the following conditions are satisfied:

the individual agrees that, in consideration of a wage or other remuneration, he or she will provide his or her own work and skill in the performance of some service for the employer (the actual word was ‘[NAME]’ as at the time, the term [NAME] and servant was used, rather than employer and employee)

the individual agrees, expressly or impliedly, that in the performance of that service he or she will be subject to the other’s control in a sufficient degree to make that other an employer

the other provisions of the contract are consistent with its being a contract of service (as opposed to a contract for services, which is a self-employed arrangement)

21. Here the claimant was performing the services personally. If she was absent, cover was provided. Equally she covered others’ absences.

22. There as one occasion when the claimant proposed a friend [APPELLANT] to cover for her absence over three days in April 2022 when she was away in South Africa. She did not have an unfettered right to send a substitute. She did not more than suggest a friend as a supply teacher. This is equally something an employed teacher may have done and it does not indicate self-employed status.

23. Control relates to the respondent telling the claimant what she can and cannot do. For example, there was prohibition on contact with [NAME] outside of [RESPONDENT] and this covered private tutoring whereby the claimant was not permitted to teach the child in question as part of her daily timetable and that it was to be emphasised the private tutoring was completely independent of the [RESPONDENT].

24. The respondent could not tell the claimant how to teach her classes, but in contrast, he could tell the claimant which exam board to use or which syllabus to follow. The respondent could also monitor the claimant’s teaching and ensure that it was of a sufficient standard.

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25. In considering whether the other provisions of the contract are consistent with it being a contract of employment, it is relevant to consider whether the right claimed is based upon a statutory employment right. The Tribunal is to assess whether the reality of the situation reflects any express terms agreed between the parties. The label attached by the parties is not decisive.

26. All relevant factors should be taken into account, but the Tribunal should not apply a check list and ‘tick off’ issues which point to employment status or against it and ‘tot’ them up. The Tribunal should step back from the details and make an informed, considered and qualitative assessment.

27. The label the parties have placed on this situation is that of self-employed. That appears to have suited the claimant until her engagement was terminated. It is presumed she benefitted from advantageous tax arrangements when providing invoices to the respondent and presumably being assessed by HMRC under self-assessment. This is analogous to company directors who paid themselves through PAYE either under the threshold to pay [NAME] or under the threshold to pay income tax. When they attempted to claim under the corona virus job retention scheme, they were assessed at the rate paid under PAYE; which did not include their dividends.

28. The respondent submitted there was not written or oral contract with the claimant. That is incorrect. There was certainly an oral contract, with the very basic terms being the claimant would teach maths and science and would receive an hourly rate of pay for doing do. The parties could agree the days and hours worked and the respondent would allocate the classes to the claimant. That did not mean the claimant had no say at all; she did. For example, she asked that certain students be moved and some lessons be swapped.

29. The claimant did provide invoices, which is indicative of self-employed status, but it is not conclusive. The claimant also included in the invoices matters which [NAME] would be expected to do within their rate of pay (reporting writing, meeting parents, lesson preparation, etc). The respondent said that he accepted most of the additional matters but did on occasions challenge it and tell her to ‘keep it down’. The claimant was also responsible for her own tax and [NAME]. In addition the claimant did not receive ‘employee’ benefits. She should have been paid PAYE and should have received employee benefits.

30. There is no evidence the claimant set her own hourly rate of £30 per hour. On 24 July 2023 the claimant requested an increase in the hourly rate of to £35 (page 10). It seems this was agreed. The claimant set out her case for an increase and also referenced another offer which she had to work elsewhere. She was clear that her preference was to stay at the [RESPONDENT], but that she was tempted by an offer of a higher rate of pay. This was simply a negotiation; not the claimant dictating the rate of pay.

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Continuity of staff is important in [NAME] and the respondent had in the claimant a known quantity. He knew her, her teaching methods and the quality of her work.

31. There was no evidence of the respondent not offering work to the claimant. In fact the opposite was evidenced, such as the claimant being asked to cover colleagues’ lessons (in the short term). There was also no evidence of the claimant refusing to work when asked to do so by the respondent. The evidence was that the parties agreed when the claimant would be absent with notice (the visits to South Africa) and agreed a means of covering these absences. The same methodology would apply to employees. It is obviously not in the respondent’s interest to have staff absent during term-time, even by agreement. It was obviously preferable to have advance notice of absences which the respondent could then accommodate; so that he could manage [NAME]’ and parents’ expectations.

32. It is agreed both parties aimed to manage continuity for the [NAME] and that it was a matter of goodwill and practicality. As professional educators, both parties would consider the well-being of the students to be of paramount importance. The same consideration would apply equally to employed staff. Such a position does not indicate self-employment.

33. The fact the claimant declined a task after the [RESPONDENT] had closed does not indicate self-employment. It does indicate that by that point in time, all staff were disillusioned with the respondent as they felt they had been misled over the closure of the [RESPONDENT]. This was the only example cited by the respondent of the claimant refusing a task and this was after the [RESPONDENT] had closed..

34. Finally, the fact the claimant did independent tutoring is neither here nor there. There was a policy in place which appeared on the balance of probabilities to apply to all staff, including employed staff. There were clear demarcations over what could and could not be done if a member of staff was tutoring [NAME] of the [RESPONDENT]. The claimant and other employed staff were permitted to perform private tutoring; provided they complied with the policy.

35. If the fact the claimant was doing private work as a self-employed contractor could defeat employment status; then this would be contrary to the protection the employment legislation offers to individuals.

36. The Tribunal therefore concludes the claimant was the respondent’s employee.

37. The next question is her statutory entitlement. The claimant claims a redundancy payment under s.135 and notice pay under s.86 of the Employment Rights Act 1996.

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38. As discussed at the outset, this finding will be referred to HMRC to establish if they intend to make any claim in respect of an underpayment.

39. The claimant has provided calculations for the sums claimed. She claims:

‘Statement of Loss

£6 471 Redundancy

Redundancy for the six full years I have worked at the drive (capped at £719 pw) according to the government formula works out to £6 471. ( 6 x 1.5 x 719)

£4 000 Pay in Lieu of Notice

Pay in Lieu of notice, to the end of the [RESPONDENT] [NAME] I would have received 5 weeks of pay of on average £800 per week, works out to £4 000.

£10 471 Total unpaid statutory payment’

40. In the bundle there are two invoices from the claimant to the respondent dated 26 June 2024 (page 43); and 31 May 2025 (page 41).

41. It is not possible from the two invoices to establish an average weekly rate of pay. In particular, the May 2025 invoice covers the period of the Ofsted inspection, when the claimant worked and claimed for an extra day worked and extra hours worked.

Directions 42. The claimant is therefore directed to disclose her 2025/2026 self assessment tax return in order that the Tribunal can see what income has been declared and can calculate a gross weekly average rate of pay. She is also to provide the last three months payslips. She is to provide a copy of the same to the Tribunal and to the respondent within 14 days.

43. The respondent is to provide any comments he has upon the claimant’s calculation and monetary claim, with sight of the claimant’s self- assessment, within 28 days (14 days of receipt from the claimant).

44. The finding the claimant was an employee will also be referred to HMRC to decide if there has been an underpayment of tax or [NAME].

Approved by: Employment Judge Wright

6th May 2026

Judgment sent to parties on 22nd May 2026

For the Tribunal Office

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Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/