Ms C J Owen v J and U Services Ltd and Others: 1303076/2024
EMPLOYMENT TRIBUNALS
Case No 1303076/2024
Between
Ms C J OwenClaimantJ and U Services Ltd and OthersRespondent
Before
Employment Judge L MensahIn person for claimantDate 14 July 2025
JUDGMENT
[1]The Tribunal orders are; a) The Claimant’s claim to be employed by either R1 or R2 is not made out and is dismissed. b) The Claimant alternative claim to be a worker for R1 or R2 is not made out and is dismissed. c) The Claimant is not entitled to bring a claim for unfair dismissal and this claim is dismissed. d) The Claimant is not entitled to notice pay and her claim is dismissed e) The Claimant is not entitled to holiday pay, and her claim is dismissed. Case Management Orders f) As the Claimant’s issues before me stand as dismissed, the whole claim appears dismissed, but as I did not have a detailed discussion with the parties as to the other issues, and in an abundance of caution, I give the Claimant until close of the 11.08.2025, to write in (copying in the Respondents) and set out in full any basis upon which her existing claim/s could proceed on the above findings. g) If no reason is given, or if it is agreed all claims fall to be dismissed, the whole claim stands as dismissed. h) If any reason is given by the Claimant’s representatives, the Respondent has until the 25.08.2025 to respond and then the matter should then be placed before myself, or another Judge, to consider whether the matter should be listed for a further case management hearing or proceed to a final hearing. References[2]Herein any reference to ERA is to the Employment Rights Act 1996 and WTR is the Working Time Regulations 1998. For ease of reference when I refer to the Respondents or the Claimant, I also mean their legal advisors. I refer to the Respondents as “R1”, “R2”, “R3” and “R4” for ease of reference as an used by the parties throughout. Issues for the Tribunal overall,[3]I had a brief discussion with the Representatives about the issues in the case. It was agreed I was only considering the status of the Claimant and dependent upon the outcome, the case may require a further case management hearing. Preliminary issues[4]I discussed the Claimant’s skeleton argument as it appeared to raise preliminary issues but is not clearly drafted. The Claimant confirmed I could ignore anything in that document that is not a skeleton argument about the issues, beyond the following matters:(i) A group Chat about a playpark which the Claimant told me she felt is relevant to her status and which she could not see in the bundle.(ii) A possible recording of Mr James mentioned by the Respondents. The Claimant wasn’t sure if it might be relevant.[5]Mr Campion confirmed he would take instructions on both as he received the Claimant’s skeleton at 9.56am. I confirmed I received the same at 9.59am. He confirmed on return the playpark messages have been sent and added to end of the bundle 1287 onwards. Regarding the recording it has been transcribed by his instructing solicitors and a paginated pdf of 3 pages was added to the bundle.[6]Mr Campion also noted the Claimant referred to two text messages in her witness statement paragraphs 49 [14.04.2022] and 66 [04.03.2025] and he could not find them in the bundle. I asked the Claimant to check if they were in the bundle when I took a break to read the witness statements and if they are not in the bundle to email them to the Respondent before we return. They were added to the back of the bundle. Issues before Tribunal today:[7]Whether the Claimant is an employee of either R1 or R2 within the definition of section 230 of the ERA act 1996?[8]Whether the Claimant is worker of either R1 or R2 within the meaning of section 230 as above or section 43K ERA 1996? The Law[9]I have summarised the law, considering the various case law referred to by the parties in their written submissions. As necessary I have mentioned some of those cases herein. The failure to mention a specific case does not mean I have not read and considered the submission or the case. The parties can see from the summary of the law; I have read both submissions with care. As is often the position in such cases, parties seek to quote from a myriad of cases on the selected factors to demonstrate their position. However, in determining whether an individual is an employee or not, the case often falls to be determined on a question of fact and not law. The statutory provision relevant to this issue can be found in Section 230 of the ERA 1996 “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. (3)In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a)a contract of employment, or (b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly.”[10]The “multiple test” established in Ready Mixed Concrete (South East) limited V Ministry of Pensions and National Insurance [1968] 1 ALL ER 433 applies. The worker/employee distinction is a question of degree, applying the same test as in Byrne Bros (Formwork) limited v Baird [2002] IRLR 96. The following factors (a nonexhaustive list and set out in no particular order) and all relevant circumstances should be taken into account: The Contractual provisions and whether or not those provisions do represent the true relationship between the parties.[11]The Claimant refers to Uber BV and ors Aslam and ors [2021] ICR 657, SC where the Supreme court confirmed at paragraphs 76 and 85 it would be inconsistent with the legislation to treat any written contract as the starting point given the power imbalance between an employer and employee and in reality it is the conduct of the parties that will inform the decision maker as to their true relationship. The domestic relationship[12]As per Mr Campion’s skeleton, there must also be an intention to create legal relations. Even an agreement supported by consideration will not be sufficient to establish a legally binding contract without an intention to create legal relations. There is a presumption against contractual intent in respect of arrangements made in the private domain of friends, family and other social relationships. See the Judgment of Salmon LJ in Jones v Padavatton [1969] 1 WLR 328 (CA) at 332: “[Counsel for the plaintiff] has said, quite rightly, that as a rule when arrangements are made between close relations, for example, between husband and wife, parent and child or uncle and nephew in relation to an allowance, there is a presumption against an intention of creating any legal relationship. This is not a presumption of law, but of fact. It derives from experience of life and human nature which shows that in such circumstances men and women usually do not intend to create legal rights and obligations, but intend to rely solely on family ties of mutual trust and affection. This has all been explained by Atkin L.J. in his celebrated judgment in Balfour v. Balfour…”[13]In such family, social or domestic contexts the burden of proof is on the party who alleges that the agreement is legally binding. Generally, the inclination is against inferring that spouses intended to create a legal relationship and the evidence establishing such an intention needs to be ‘clear and convincing’, see Edmund Davies LJ in Gould v Gould [1969] 3 All ER 728 (CA) at 731.[14]Mr Campion asked me to consider Chitty on Contracts which provides several examples of these types of family, social or domestic situations which do not give rise to a legally enforceable contract, including where two parties agree to take a walk together, or where there is an offer and an acceptance of hospitality. Chitty refers to a case in which it was held that the winner of a competition held by a golf club could not sue for his prize where no one concerned ever intended that there should be any legal results flowing from the conditions posted and the acceptance by the competitor of those conditions.[15]As to domestic arrangements between spouses, he refers to the seminal case of Balfour v Balfour [1919] 2 KB 571 (CA) a husband who worked abroad promised to pay an allowance of £30 per month to his wife, who had to stay in England on medical grounds. The wife’s attempt to enforce this promise by action failed for two reasons: she had not provided any consideration, and the parties did not intend the arrangement to be legally binding. Atkin LJ said at 578-579: “… I think, that such arrangements made between husband and wife are arrangements in which there are mutual promises, or in which there is consideration in form within the definition that I have mentioned. Nevertheless they are not contracts, and they are not contracts because the parties did not intend that they should be attended by legal consequences. To my mind it would be of the worst possible example to hold that agreements such as this resulted in legal obligations which could be enforced in the Courts. It would mean this, that when the husband makes his wife a promise to give her an allowance of 30s. or 2l. a week, whatever he can afford to give her, for the maintenance of the household and children, and she promises so to apply it, not only could she sue him for his failure in any week to supply the allowance, but he could sue her for non-performance of the obligation, express or implied, which she had undertaken upon her part. All I can say is that the small Courts of this country would have to be multiplied one hundredfold if these arrangements were held to result in legal obligations. They are not sued upon, not because the parties are reluctant to enforce their legal rights when the agreement is broken, but because the parties, in the inception of the arrangement, never intended that they should be sued upon. Agreements such as these are outside the realm of contracts altogether. The common law does not regulate the form of agreements between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection which counts for so little in these cold Courts. The terms may be repudiated, varied or renewed as performance proceeds or as disagreements develop, and the principles of the common law as to exoneration and discharge and accord and satisfaction are such as find no place in the domestic code.” The degree of control exercised by the employer.[16]In White and another v Troutbeck SA (EAT) [2013] IRLR 286 which went before the Court of Appeal [2013] EWCA Civ 1171, the Employment Tribunal had limited its assessment to the absence of day-to-day control, as opposed to the wider picture of control as part of the totality of the factors in the case. Elias LJ in Stringfellows Restaurants Limited v Quashie [2013] ILRL 99 confirmed that control is not the only issue and even where the work-wage relationship is established and there is substantial control, there may be other features of the relationship which will entitle a tribunal to conclude there is no contract of employment in place even during an individual engagement. The presence or absence of mutuality of obligation to provide or do work.[17]The mutuality of obligation can be simply described as;(a) The obligation on the employer to provide work.(b) The obligation on the employee to do the work.[18]As per Ready Mixed Concrete (South East) limited V Ministry of Pensions and National Insurance [1968] 1 ALL ER 433, the absence of an irreducible minimum of obligation is fatal to establishing employee status. However, the existence of such an obligation does not create any prima facie presumption of a contract of service. All relevant factors need to be examined, see Kickabout Productions Limited v Revenue and Customs Commissioners [2002] EWCA Civ 502. The duty to provide personal service[19]In Macfarlane v Glasgow City Council [2001] IRLR 7 where the tribunal noted a distinction between a fettered right of substitution, which might give rise to an employment relationship. In R(IWIG) v CAC [2021] EWCA Civ 952, which held that the genuine unfettered right to substitution which was occasionally (albeit rarely) exercised was fatal to Deliveroo riders’ assertion of worker status for the purposes of trade union recognition. They further rely upon Johnson v Transopco UK Limited [2022] EAT 6, as the EAT held and Employment Tribunal is entitled to consider the activities of the Claimant when he was not working for the Respondent. The provision of tools, equipment, instruments etc?[20]This is another fact specific feature. The arrangements for tax and national insurance?[21]In Enfield Technical Services Limited v Payne; BF Components Limited v Grace [2008] ICR 1423, Court of Appeal confirmed the way in which tax and national insurance is paid is not conclusive. The opportunity to work for other employers?[22]This can also be a factor depending on all the circumstances. Other contractual provisions such as holiday pay, notice, fees, expenses and for sick pay,[23]Aper Forest Mere Lodges Limited EAT 0246/06 that an employer should not be able to avoid statutory protections by other breaches. In Clark v Oxfordshire health Authority [1998] IRLR 125 where no entitlement to sick pay, the Tribunal said this was a factor said to be merely one indicator in the overall assessment. The degree of financial risk and responsibility for investment and management[24]In Quashie, the court said it would be an unusual case where the employment contract is found to exist when the worker takes all the economic risks and is paid exclusively by third parties. The degree of integration into Respondent’s business.[25]This is again a fact sensitive factor, in Stevenson Jordan and Harrison Limited v MacDonald and Evans [21952] 1 TLR 101 before the Court of appeal and Hospital Medical Group Limited v Westwood [2013] ICR 415 before the Court of Appeal to confirm this is a relevant factor.[26]In the alternative is it argued the Claimant is a worker. In other words, she is in a contract where she undertakes to perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of client or customer of any profession or business undertaking carried on by the individual. Evidence[27]I heard evidence from the Claimant and her witnesses as identified herein and the Respondent and their witnesses as identified. Mr Campion relied upon his skeleton and authorities placed before me at the outset of the hearing. I am grateful for the professional approach taken to the case. I have also considered as relevant, the documents the parties referred to during the evidence. Findings[28]The Claimant says she was employed as Estate Manager of either the first Respondent company or the second Respondent company from the 15 June 2021 to the 31 October 2023. The reason the Claimant says she does not know which of the two companies she worked for is because the parties all agree no contract of employment or written terms and conditions have ever been drawn up. The Claimant was never entered on the payroll for R1, and R2 has no employees as it is a company incorporated for the sole purpose of holding land. Ms Bayley confirmed in her evidence that all employees were entered into the pay roll and she would be the one who Mr James would notify to add a person to that roll and Mr James never did that for the Claimant.[29]There are no pay slip issues at any time for the Claimant, and she says the first payment she identified as wages was not made until the 13 July 2022, after Mr James had died. This is therefore not a case where one can in any event consider the terms of a contract to see if it represented the intention of the parties. Instead, I am being asked to look at documents created around the material time and hear what the witnesses have to say.[30]The Claimant is in fact the widow of Mr Jonathan James. Mr James is unfortunately deceased and passed away on the 12 July 2022. Mr James was the Managing Director of R1 and the sole Director of R2. He has a daughter from a former marriage who is cited as R4 in these proceedings. I understand the Claimant and Mr James were living together from some time in 2016/2017. They lived together at what is described as the farm at Fenton. Prior to the commencement of the relationship, Mr James created R1 and his daughter Ms James worked in the same alongside R3. Ms Bayley. His first wife and the biological mother of R3 unfortunately passed away in September 2016.[31]The Claimant does not dispute her lack of employment status between 2016/7 and 15 June 2021. During that time, it seems to be agreed she was the partner of Mr James, and they cohabited. If she did anything connected with his projects or farm during this time, she appears to accept she did so in this capacity. They were not married until May 2022.[32]During the hearing Mr Campion sought to put to the Claimant that the first time she ever asserted she was an employee was on the 29 June 2023. He took the Claimant to a document she sent. The Claimant denied the same but struggled and could not point to any earlier document asserting her status before this date. She took me to page 134 (PDF 173) which is not a message from the Claimant. Mr Campion says it was the 29 June 2023 page 296 (PDF 335). This is some two years after the Claimant says she became an employee, nearly a year after they were married, and after the passing Mr James. In her witness statement the Claimant says, “44. In April through to June 2021, Jonathan and I had begun to assess land boundaries, speaking with residents and field tenants, and addressing issues such as fly tipping work schemes included planning field layout and access points to fields planning gates. Clearing field rubbish and improving rough pasture drainage and clearing ditches and channels.45. John intended to regularise the system of my salary and the personal money we were putting into the venture through 'directors loans'. Initially there was not a way of doing this through JUD separate to JUS.46. A formal wage arrangement was spoken about especially as Jonathan had intentions of stepping aside from the Blurton JUS site and concentrating on becoming 'Farmer John' . We were both exciting about this prospect and the opportunities available to us to make the land a very special place in the heart of Stoke on Trent.”[33]In other words, she says Mr James expressed an intention to set the Claimant up formally as an employee. I take this to mean Mr James recognised the Claimant was imputing into the land and business as Mr James partner or family member to date and looking forward something more formal would be set up. This is a far cry from the terms required to demonstrate an intention to create legal relations in June 2021. The Claimant’s evidence is devoid of any actual steps taken by Mr James or the Claimant to put those discussions on a formal basis and with sufficient particularity to create legal relations.[34]The Claimant has provided a detailed account of all she did from June 2021 but the one thing that is missing is any action by Mr James to formalise her position. What instead did happen is Mr James and the Claimant married. The Claimant admits Mr James did not take any steps to formally appoint her as an employee or worker in either business or in fact to discuss and identify the legal entity she would be employed by.[35]In her oral evidence the Claimant was taken to paragraphs six and seven of her pleadings. It is asserted in the pleaded case that Mr James agreed a salary of £48,000, holiday pay for “any time spent on annual leave” and use of a company car. The Claimant asserts I the same document that given her relationship such terms were never documented. In fact, before me the Claimant told me those terms were not in fact a reference to agreed terms in a single discussion. The Claimant says the £12,000 she was receiving through My Glass was sufficient when Mr James was alive and the £48,000 was discussed when he realised, he was not going to live. In other words, not in June 2021 when the Claimant says she became an employee.[36]This would mean in June 2021 Mr James had not only not identified a legal entity for whom the Claimant would either be an employee or worker, but he had not agreed a wage in return for work or any of the normal terms one might expect. This does not support the claimed agreement to employ the Claimant in either R1 or R2 in June 2021. When asked why the Claimant had not also named Fenton Fields Limited as a potential employer her immediate response is she knew it had no assets. This is again illuminating of another problem with her claim. It is evidence neither Mr James nor the Claimant had in fact come to any agreement as to who she might ultimately be employed by. They had not identified the legal entity I find the discussions in June 2021 were no more than vague aspirations with no immediate intention to create legal relations at that point.[37]I find the reason for this is because any discussions were no more than aspirational. The Claimant confirmed at the point she says she became an employee they had not decided which legal entity she would be employed by. She told me she knew the third and fourth Respondents would not agree to her becoming an employee of R1 or R2 and it wasn’t the right time to address this. Her evidence indicates to me that any discussions were premised on what they would both like to see happen if the land gained charitable status and was in the hands of Fenton Fields Limited and the projects were set up to provide the Claimant will a role overseeing those projects such as the pet cemetery. That in fact never came to be.[38]In the hearing when being cross-examined the Claimant referred me to the period of time when Mr James was having a lung scan and a few days before his death and she told me she “based” her status as an employee on the fact Mr James told her he was going to “make sure I got a salary.” This is also at odds with her pleaded case which is that she was an employee from June 2021. This also in my view shows that in fact Mr James and the Claimant both knew they had never got to the stage of formulating the essential details for an employment relationship, even by this stage.[39]The Claimant told me she didn’t need a salary before Mr James became ill because they didn’t need a lot of money and she never pursued the same. She told me the plan was to set up the charity, and form business on the land such as the pet cemetery so the family including herself would be able to take on roles and earn an income. None of this supports the claim she had an agreement and became an employee in June 2021 or at any time. In my view it does to show the Claimant did not in fact view herself as an employee during this time but had hoped to become one if the vision of the charity was met.[40]This also means the Claimant worked in the business for a period of over a year on her own account without a single payment of wages. The Claimant asserted the first payment of wages was made is the 13 July 2022. However, I have examined that payment. Pages 180 and 211-213 show a payment of £20,000 into the Claimant’s Santander account on the 13 July 2022. They also show a series of messages between the Claimant and Ms Bailey around the time of the payment.[41]The first thing is there is no mention from the Claimant or Ms Bayley of this money being outstanding wages. If it was, I would have expected some mention of the same. Nor is there any mention of this money being a loan. Instead, what I read from those messages is that money was paid to the Claimant to cover outstanding bills incurred “to make the bosses dreams come true.” In an email dated 15 July 2024 from the Claimant to the Tribunal, the Claimant provides a detailed reply to a Legal Officer regarding the Respondent position on her employment status. In that reply she says, “These work schemes and business startups included setting up a wedding barn, setting up a bouncing pillow children's play park, the renovation of two dilapidated barn buildings and making safe ditches and drainage channels and electricity box points over many areas of the fields using heavy plant hire which needed to be returned as quickly as possible. After my husband died, I was expected to carry on with these projects and get them off the ground and Lesley Bayley was forthcoming with the support for these ventures with the 60K she provided from JUS. Kimberly was also asked to contribute to the discussions on getting the play park off the ground according to her father’s wishes. She was not involved in the 1:1 meetings I had had with Lesley Bayley at the time. I have never had a 1:1 meeting with Kimberly James. It would not have been appropriate given our circumstances.” [underlined for emphasis][42]The above does not support the claim the three payments of £20,000 were salary for the Claimant. They show the Claimant believed the money was to cover the costs incurred to date in the pursuit of those projects. The Claimant referred me to pages 619-620 (PDF pages 659-660). I note one of those messages from the Claimant to Ms James. “[10/07/2023, 17:38:09] Cheryl Owen: Kim I think you need to clarify , when I asked you for money . ?? . it not something i’ve tried to do at all and would only be for the benefit of the running of the Fenton Fields legacy your father started . At the moment Kim , there is no charity set up . you will be asked to put your efforts in once it’s running. in the meantime you are more than welcome to help with the voluntary groups running in the fields. Ragworting, hay baling are taking our time up at the moment . it will simply involve some time and effort on your part. I , can happily show you the ropes and perhaps you finding out a little bit about what we do here , might be quite useful for you and help you understand what we are up against . If you are asking me to set up a business plan , I need to understand the constraints of the plan , the budget and who will be paying for the work . you really need to give me some clarity on this as I can’t continue to bank roll the plans your dad put in place out of my personal finances forever. I would also like to pin you down a bit on when exactly you asked i work on a business plan for you ? as you’ve certainly not made your expectations clear on this . if you are you taking over the management of the work i’m doing here , i think it would be really helpful if you could meet up and set some of the employment issues in place that your dad reassured me Lesley and yourself would be sorting out for me . this discussion is long over due and i would really think it’s best it’s sorted soon , so we are all clear on how everything is operating.”[43]This is a discussion taking place some two years after the Claimant says she became an employee of either R1 or R2. The last few sentences in my view further illuminate the position. The Claimant clearly understands she is not an employee at this stage; she is asking that Ms James and Ms Bayley meet with her so they can discuss this as a long overdue situation. This does not support the existence of an employment relationship and if this is evidence of the intention of the parties it supports my view such a relationship was not established before Mr James’s death.[44]The Claimant identified pages 241 to 272 (280 PDF onwards) as essential evidence in her case. This is an exchange between the Claimant and Ms Bayley on the 21 February 2023. I clearly read the messages as the Claimant complaining that the £20,000 payments were not enough to cover the bills coming out of her Santander account. They both refer to “The glass payment” and I am satisfied they agree the Claimant is an employee and paying tax and national insurance on that. This is clearly a reference to the “My Glass Project Limited” and I have seen the P60ts at pages 125 (PDF pages 164) and page 132 (PDF page 171). Ms Bayley confirmed the Claimant was set up as an employee of the My Glass Project Limited in October 2018 by Mr James and the Claimant was paid an annual salary of £12,000 a year. She was added to the payroll and still is to the date of the statement [05.06.2025]. This is in direct contrast to the lack of any formal steps being taken to admit the Claimant onto the payroll for either R1 or R2 or make any payments to her for anything she did.[45]It is also clear to me in July 2021, when Mr James was diagnosed with cancer, he sought to create Fenton Fields Limited with the aim of setting up a charity which would take on the land and facilitate the community events and vision he had. This is one month after the Claimant says she became an employee and yet when taking these steps Mr James did not take any steps to formalise an employment relationship with the Claimant.[46]The Claimant told me she didn’t feel it was right to push for her position to be formalised but I am satisfied she would not have needed to push for the same if there was a clear agreement between her and Mr James as to what her role would be, her pay for that role, what work she would be required to do and when and importantly, which legal entity would employ her.[47]During the hearing the Claimant was taken to an exchange regarding one of the payments of £20,000. There were three made to the Claimant. In the exchange she says “Hi Lesley, I could do with another sub for Fenton Fields please, Ive pai a hmrc bill today and sorted out the fenton fields insurance too- still got to do a hefty backlog of wages and tax for Les – looking a bit straighter…”[48]I found the Claimant’s evidence that she used the word “sub” to mean “subsistence payment” rather than an advance made no sense whatsoever. I asked the Claimant three times to explain how she says its intended meaning was as a subsistence payment rather than by way of an advance to make those payments she identified, and she simply was unable to give me an explanation. The clear and natural meaning of the word “sub” is an advance of money which the borrower will seek to reconcile later. I take this to mean the Claimant was asking for the second £20,000 to cover the costs of Fenton Fields for the purposes of keeping the project going as per the vision of Mr James.[49]I accept the evidence of Ms Bayley, that the £20,000 payments were made as an advance against the project. Ms Bayley told me she was trying to support the pursuit of Mr James’ vision by making the payments to the Claimant for those expenses and recognising they were being legitimately incurred. However, I also find there was no discussion with the Claimant as to whether those funds would have to be paid back and when. This is because I accept this was not a commercial loan, it was a family business where decisions were being made that would not have been made in a normal commercial situation. Of course, the Claimant would be expected to account for what the money had been spent on given it needed to be utilised in accordance with the furtherance of the project, but I do not accept it was a loan to her personally. It was for the benefit of the projects that the money has been paid to the Claimant, and she will of course need to show how it was spent.[50]The Claimant’s evidence regarding the setting up of Fenton Fields Limited as a company, organising insurance and preparing both account and pay slips for all those the Claimant identified as staff, including herself is incomprehensible.[51]The Claimant was taken to the evidence showing Fenton Fields Limited was incorporated on the 16 April 2022. The Claimant instructed accountants to prepare tax returns for the same and a schedule of employees to whom she says wages were paid subject to tax and national insurance by herself and Mr James on a weekly basis.[52]The Claimant says she used the company so she could resolve the outstanding tax liability with HMRC but asks me to accept the schedule of payments made to the staff, which includes a wage of £48,000 were paid to all the staff but not to the Claimant. In other words, she has purported to HMRC she has been paid £48,000 salary for working as an employee for Fenton Fields Limited, but she says she was never paid, and she says Fenton Fields is not her employer. This is a complete contrast to her claim to be employed on an agreed wage of £48,000 with R1 or R2 or to have been paid those wages through the three instalments of £20,000.[53]I find this evidence damaging to the Claimant. It is on her account an admission she gave false information to HMRC, or she is lying to me about not having been paid and employed by Fenton Fields Limited. In either case this damages her reliability as a witness of truth.[54]I find by her own hand she has asserted to the HMRC she was employed by Fenton Fields Limited, and she would not have taken that step if she had an employment relationship with R1 or R2 as she would have expected her employer to account for her tax and national insurance. This behaviour is evidence she knew she was not employed by either R1 or R2 and has never been so employed and was acting in her own right, as she did with Mr James before his death to account for her personal tax liability. She has chosen to settle this through Fenton Fields Limited.[55]This is in fact also supported by her behaviour during these proceedings. Throughout the hearing, which has been recorded by HMCTS, the Claimant spent much of her time asking the Respondent witnesses about the inheritance situation and the difficulties with the land and despite many reminders as to the issues and her claim she was employed, failed to really put her case to the Respondent witnesses.[56]I find the Claimant was wholly responsible for the setting up of Fenton Fields Limited, its pay roll and accounts to HMRC. The Claimant says her and Mr James would pay the staff each week and deduct tax and national insurance. She says the staff were not given pay slips and so she created the pay slips later to reflect the payments made to all the staff but denied the same to herself. Her evidence was bordering on ridiculous when she later sought to resile from the same and deny the staff were so employed and the insurance she secured was not legal.[57]The Claimant’s evidence does not support her claim to be employed or a worker by R1 or R2. Her constant questions in cross-examination to the Respondent witnesses about the inheritance issues gave the impression she was using these proceedings as a means of securing more information as to the legal position on the inheritance than to pursue a genuine belief in her status as an employee or worker.[58]Turning to the behaviour of Mr James near the end of his life, I consider it material. On pages 241 to 272 there is a discussion about Mr James changing his mind about finding a way to get money out of “the property” for the Claimant to have an income. It records Mr James had told the third and fourth Respondent to pursue his dream for the land and put in enough money to allow for the Claimant to earn a wage from that land in the future.[59]The very fact Mr James is said to have said those things whist critically ill indicates to me he recognised the Claimant was not an employee or worker. This is Mr James expressing concern that his wife is taken care of after his death and that his projects are pursued. I do not accept this shows the Claimant was previously employed. I consider the Claimant’s reference in those discussions to the money she has spent on the projects, to be a reference to what the £20,000 payments were actually for.[60]I do not accept those payments were wages. I agree with Mr Campion’s skeleton argument that the fact no payments were made to the Claimant and identifiable as wages, is another strong indication she was in fact involved in the business under a domestic arrangement between herself and Mr James as partners and then as husband and wife. The fact Mr James chose to marry the Claimant and did not formalise her status as an employee or worker is also strong evidence he had not in fact sought to act out his earlier discussions to create some sort of formal status for her. In fact, I consider the act of marriage to strongly indicate his intention to continue to support her through a domestic arrangement with a hope the project, once completed, would provide a future source of income.[61]It cannot be said that Mr James would not have understood and appreciated the lack of formal appointment and clear agreement as to terms and conditions left any status questionable. He was by all accounts a successful businessman. I am sure he had no cause to believe during his lifetime that his daughter and wife would become entrenched in legal battles over finances if he passed away. I accept as cohabiting partners and then husband and wife they had worked together to seek to achieve the vision they shared for the land and for the future. This meant the Claimant had invested her time on that vision as a partner and wife with the aspiration it would result in securing her a role in the charity from which she would be able to derive an income. Unfortunately, this aspiration has not yet been achieved albeit the evidence of the Respondents is they still wish to see the project completed as per Mr James’s wishes.[62]I can see from the witness statements that there has been a significant decline in the relationships between the Claimant and those who held formal positions in the business. This was ultimately a family business. The Respondents say Mr James never gave the Claimant a contract of employment or took steps to provide such a role to the Claimant. I agree he did not. I find he did not because he believed the parties would continue to work together as a family in the domestic setting created to achieve his vision.[63]The Claimant says. “30. Jonathan’s intentions for his life's final projects were to preserve the land for future generations which we had both become so passionate about whilst establishing sustainable income-generating activities to support its maintenance.31. This also included making sure I had a modest income to carry on the projects at the same time and to plan for his future generations to be involved if they chose to. Johns will32. Jonathan's planning applications included a pet cemetery, a Muslim burial ground (subject to separate planning applications from the Muslim community), a children’s play area with a “bouncing pillow,” a rural wedding/event venue, with associated camping areas. These ventures were all started and underway most with planning applications submitted ref Document John Keats planning Application33. At the time, neither Lesley Bayley nor Kim James were actively involved in the land development initiatives, which were directed solely by Jonathan.”[64]I accept there was some discussion about placing the Claimant into a more formal role in the future. However, on the evidence I have seen they did not ever take the steps necessary. They would have involved agreement on fundamental aspects of an employment relationship including agreeing what work would be come within the remit of the employment relationship, the hours of work and the pay. In exchange the Claimant would have had to agree to work to those terms in exchange for pay. None of this ever happened.[65]I find the Claimant has retrospectively sought to attribute the payments of the £20,000 as wages to seek to bolster her case, when she in fact knew the payments were to cover the costs and expenses incurred during what would have been a difficult time.[66]The Claimant failed to mention in her witness statement any specific discussions she had with Mr James around things like holiday and sick pay or entitlement to the same despite it being pleaded. In fact, there appears to have been no point when the Claimant sought to assert any right to the same during the life of Mr James and admits she and her husband would spend time as they wanted, away from the land and attending personal appointments without any need for the Claimant to account for her time to either R1 or R2 or anyone else. The Claimant was free to use her time as she saw fit.[67]The Claimant was not only not on the pay roll of R1 or R2, but she also knew she had never undertaken the induction for new staff at R1 and never been required to attend any meetings at the business premises. There isn’t a single piece of evidence showing the Claimant being given instructions on what she needed to do or when she needed to do any task. There is no agreed job description or even task list. There are no agreed hours or rate of pay. I do not accept there was ever an agreement to pay the Claimant £48,000 per year. There may have been some vague discussions about future income, but I completely reject the way the Claimant has sought to represent the reference to the £20,000 as if they were paid as wages and her pay slips and accounts for Fenton Fields[68]The Claimant could not, when asked, identify a single legitimate act of control either R1 or R2 and in fact her evidence is she did what she wanted and when she wanted and took time off when she wanted and did not account to anyone for her time. The Claimant required staff working on Fenton Fields to provide weekly time sheets for the work they did and yet she did not provide any proper account of her own time. The Claimant bought equipment as she felt was required and says that she put in money into the project out of her own account. None of this supports an employment situation.[69]I accept the evidence of the third and fourth Respondents regarding their lack of any involvement in the land or what was done on it. R1 is a completely separate business and the only reason the Claimant was able to access funding from R1 is because it was her husband’s company and there is a strong family connection with both understanding his vision for the land. They effectively agreed in their evidence they understood Mr James wanted them to help pursue his vision for the land and would utilise funds as he saw fit to achieve the same.[70]For the sake of completeness, I found the transcript of the recording of Mr James’s expressed wishes shortly before his death and shared during this hearing did not assist the Claimant as it contained nothing within it that supported her claimed status. I did confirm to the Claimant that she should read the transcript carefully and decide if it was material to these proceedings as it was clearly a very personal recording of the last wishes of Mr James. I explained if it added nothing to her case regarding her status, there would be no need to have it placed before me. The Claimant argued it was material and so it was added to the bundle. The Claimant then completely failed to refer to any part of it showing or supporting her claimed status. My impression is again this was the Claimant seeking to use these proceedings to secure evidence connected with the inheritance issues which I explained throughout was not the purpose of these proceedings.[71]I did not consider the evidence around the play park of any help despite the Claimant asserting at the outset that it was important, its importance was never shown through cross-examination or otherwise. There was no dispute the Claimant worked on the land. Ms Cheryl Atherton[72]I did not consider her evidence was particularly helpful. The most relevant part “I was privy to a few telephone conversations between Leslie Bayley and Cheryl Owen. One in particular on the 21st of February 2023, where she said for Cheryl to continue to work as she was, and she would see that payment would be met through the company. In the conversation Lesley had felt that she and Cheryl had been set up by the family and John's solicitors.”[73]I have had the benefit of the messages about that which I have addressed above. The evidence of Ms Atherton no more than confirms there were no terms and conditions that could amount to mutuality of obligation between the Claimant and her husband or the Claimant and Ms Bayley by the 21 February 2023. Mr Leslie Jones[74]Mr Jones confirmed he had was being supported by Mr James and given welding work to do which required him to file weekly time sheets which he says recorded often 40 hours per week. He confirms he became a volunteer on the land from April 2023 until the Claimant was told in October 2023, she was wrong to hold herself out as an employee or worker ad treated this as a dismissal. Most of the rest of his statement is taken with his personal grievance as to the behaviour of the Respondents and others which went beyond the scope of the issues before me.[75]I did not find the evidence of Mr Jones helpful to the Claimant as even if it evidenced the less formal way in which Mr Jones worked for her husband, he was still required to evidence the hours and work he did in the form of time sheets and the Claimant does not advance the same on her own behalf. If anything, it is a further indicator of the domestic nature of the relationship between the Claimant and her husband and so R1 and R2. Ms Laura Marriner[76]Ms Marriner is the Claimant’s daughter and refers to a chat about her mother’s involvement in the work on the fields. She says Ms James never denied the Claimant was so involved and I agree with that. There is little dispute the Claimant was involved as the partner and then wife of Mr James and in seeking to help him achieve his visions. The rest of the statement is taken up with historical matters which have contributed to the breakdown in relationships, and which are again beyond the scope of the issues before me. Conclusions[77]Drawing together all the evidence and my findings as set out above, I find the Claimant was not employed as claimed within the meaning of Section 230(1) of the Employment Rights Act 1996. I find on the balance of probabilities the Claimant continued in her role as a family members helping her partner and then husband to achieve his dream, she invested in the dream herself both in money and time and by working on the estate. The original vision for the land changed when Mr James realised, he was ill, and it became a project for the future which they both hoped would provide work and a moderate income to the Claimant and the family.[78]The Claimant was free to assist as and when she wanted, she was not accountable to R1 or R2 for the tasks she undertook, the hours she put in or the way she worked. As Mr James’ partner and then wife, was free to choose when she took time away from the project and for how long, she had no direction from the Respondents, other than seeking their business acumen, which she appeared to lack. The Claimant was not required to undertake any work on the land or project. She undertook the work by her own choice and was not under any obligation to anyone else. There is no mutuality of obligation.[79]I agree with Mr Campion; this is a domestic and family situation with no intention on the part of Mr James to have created legal relations upon which the Claimant could rely.[80]I am satisfied if he had such an intention he would have formalised it with the Respondents and certainly when he realised, he was ill. Instead, his behaviour is consistent with his understanding of the Claimant’s position. He married her and he asked for his daughter and Ms Bayley to help her realise his vision for the land to generate an income for the Claimant. He did not ask Ms Bayley to add the Claimant to the pay roll of R1 and there is no pay roll for R2. R2 is no more than a holding company for the land and the Claimant has always known this to be the case. He did not ask his daughter or Ms Bayley to formally recognise the Claimant as an employee or worker, discuss terms for the same or identify a role.[81]That is because no role exists for the Claimant in either R1 or R2 and he was seeking to find a way to create a role for her in the future. Whether that role ever materialises is not a matter for these proceedings.[82]I find the Claimant was acting in her own interest throughout, initially as a partner in the family sense, then as a wife, then at best as an employee of Fenton Fields Limited and at least the sole Director of the same, whether or not the accounts she created are accurate. As a result of my findings, I find the Claimant has also failed to establish he is a worker under Section 230 (3) of the ERA 1996 (or for that matter Section 296 of the Trade Union and Labour Relations and Consolidation Act 1992).