Ms S ZhaoClaimantWomens One World LimitedRespondent
Before
Employment Judge RamsdenDate 18 July 2025
JUDGMENT
[1]The Respondent is company incorporated on 23 July 2020 for specialist medical practice activities. It has two statutory directors, Dr Prema Lall, a consultant obstetrician and gynaecologist, and her husband, Mr Pankej Desai.[2]The parties agree that the Claimant worked for the Respondent between 1 November 2022 and 25 February 2024, when their arrangement ended by reason of the Claimant’s resignation. The parties agree that the Claimant undertook work for the Respondent while she was also undertaking studies in the UK. The Claimant is a non-UK national.[3]Following a period of ACAS Early Conciliation beginning on 3 March 2024 and ending on 14 April 2024, the Claimant presented a complaint to the Employment Tribunal on 14 April 2024.[4]The Claim Form indicated that the Claimant intended to bring complaints: a) Of Unlawful race discrimination; b) That she was owed wages; 1 of 12 c) That she had not been provided with written particulars of employment; and d) For compensation in respect of accrued but untaken holiday pay.[5]The Claim Form did not provide any details of any race discrimination complaint, or about any written particulars or the absence of those. Details were provided by the Claimant of what she was claiming by way of unpaid wages and unpaid holiday pay.[6]The matter came before Employment Judge Heath at a Preliminary Hearing for Case Management on 7 April 2025. The Respondent did not attend, with Dr Lall emailing the Tribunal on the preceding working day to explain that she was a consultant in the NHS and could not attend that hearing as she was on call. EJ Heath determined to proceed (under Rule 47 of the Employment Tribunal Procedure Rules 2024 (the ET Rules)) to proceed in her absence, noting that: a) By that time the Claimant had confirmed she was pursuing only a complaint for compensation in respect of accrued but untaken holiday; b) The value of the Claimant’s claim was around £600; and c) It would not be proportionate to relist the matter.[7]EJ Heath identified the issues in dispute – effectively centring upon the Claimant’s status when engaged by the Respondent: was she an independent contractor or an employee or worker.[8]EJ Heath made various Orders, including that the Final Hearing would proceed on 18 July 2025 at 10am, and Ordered that the parties take various preparatory steps in anticipation of the Final Hearing.[9]In light of the fact that the Claimant was attending that hearing from China, EJ Heath also drew the Claimant’s attention to the impact her location would have on her ability to give oral evidence to the Tribunal, pointing her to the Presidential Guidance, and informing her that it would be for her to demonstrate that there are no barriers to her giving evidence, and that it would be for her to seek the necessary permissions. The parties’ positions[10]As is clear from the parties’ correspondence with the Tribunal: a) The Claimant says that she was a worker of the Respondent, and that in light of the work she performed for it, she is entitled to compensation in respect of accrued but untaken holiday. Having produced a schedule of loss as Ordered by EJ Heath, the Claimant now values that compensation at £877.05; and b) The Respondent says that the Claimant was engaged by it as an independent contractor, and therefore no such compensation is owed. 2 of 12 The hearing[11]The Respondent did not attend this hearing either. The Tribunal clerk emailed the Respondent to remind it of the hearing, but could not telephone as there was no telephone number on the Tribunal’s file. No response to the Tribunal’s email was received, and so the hearing commenced at 10:30 am, 30 minutes after its scheduled start time.[12]Rule 47 of the ET Rules (as noted by EJ Heath in his Orders) provides that: “If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.”[13]It appeared to the Tribunal that the Respondent had been appropriately notified of the hearing, with the Orders, and later, details for the parties to dial into the CVP room in which the hearing was to be conducted, having been sent to an email address for the Respondent. The Respondent emailed the Tribunal on 2 June 2025 from the same email address, making representations in support of its resistance of the Claimant’s claim. This shows that the email address on the Tribunal’s file is the correct one for the Respondent. The Tribunal was therefore satisfied that the Respondent had received notice of the hearing.[14]The Claimant, while resident in China, had travelled to Singapore specifically because she believed she could oral evidence from Singapore.[15]The Employment Judge, having no explanation whatsoever for the Respondent’s attendance, determined to proceed with the hearing, and to use the Respondent’s emailed correspondence as its representations on the issues in dispute in this case. The Claimant had gone to expense to travel to Singapore, and it is not proportionate to relist the case when the Tribunal has no indication that the Respondent would attend a later hearing given it has now failed to comply with Orders to attend two. Furthermore, in a case with a single issue at stake, with a less than £1,000 value, it is not in the interests of justice (both for the parties in this case and the many, many other parties waiting for hearing time before this Tribunal) for this hearing to be relisted.[16]While the Claimant considered that she would be able to give oral evidence from her location in Singapore, the Tribunal was not satisfied that she could. The relevant guidance from the Foreign, Commonwealth & Development Office, last updated on 14 March 2025, states in relation to Singapore: “Individuals in Singapore who want to give evidence in Singapore by video link in UK civil, commercial and administrative tribunals must request permission on an individual basis. Contact the relevant tribunal for information.”[17]The Claimant had not sought or provided evidence of permission from the Singaporean authorities. However, the Claimant was still able to make oral 3 of 12 representations on the substance of her Claim, and the Tribunal was able to accept her written witness evidence, in the form of a 13-page statement with embedded copies of WhatsApp messages, tables, etc., in it.[18]The Tribunal therefore considered the following evidence: a) The pleadings, being the Claim Form and accompanying documentation, and the Response Form and accompanying documentation; b) Correspondence from the parties to the Tribunal; c) The Claimant’s 13-page witness statement with embedded evidence; d) The Respondent’s email of 6 July 2024, making representations on its position, and attaching a two page record of hours worked by the Claimant in November and December 2023 (this had not been copied to the Claimant, in breach of Rule 90, but the Tribunal sent that email to the Claimant in the course of the hearing, and she commented on it); e) An email from the Respondent dated 2 June 2025 (which had been copied to the Claimant), which also contained representations from the Respondent; and f) An email from the Respondent dated 23 June 2025 (which again had been copied to the Claimant), and which made representations about the Claimant’s employment status.[19]The Claimant made submissions in support of her Claim.[20]The Claimant’s first language is not English, but she has a good command of English, and she told the Employment Judge that she would say if there was anything said in the course of the hearing that she did not understand. That did not, in fact, happen – the Claimant confirmed that she had understood what was said in the course of the hearing.[21]At times, the Claimant’s internet connection to the CVP ‘wobbled’, but it recovered, and the hearing was able to proceed. Facts[22]From the Respondent’s submissions, it does not challenge the number of hours worked by the Claimant in her period of engagement by it. The Respondent does, though, challenge the Claimant’s characterisation of her engagement.[23]The parties agree that: a) They had no written contract governing the terms under which the Claimant worked for the Respondent; b) The Claimant did not work full-time for the Respondent; c) The Claimant did not work fixed hours, or fixed days; 4 of 12 d) The Claimant submitted timesheets so that the Respondent had a record of the days and hours she had worked; and e) The Claimant was engaged by the Respondent while a student.[24]They disagree about other matters. a) The Claimant says that she worked around Dr Lall’s availability, as Dr Lall is a doctor working in the NHS, and so could not commit to assigning the Claimant work for fixed hours. The Claimant says that she had to be standby to work when Dr Lall wanted. By contrast, the Respondent says that the Claimant worked around her own availability rather than the operational needs of the business. b) The Claimant says that no one was on the payroll, and the Respondent says that the Claimant was not on their payroll system, which suggests a contrast to other people. c) The Claimant says – and has provided a copy of messages that she says were exchanged between her and Dr Lall - that when she enquired about becoming an employee, Dr Lall replied: “We are not giving out contract yet till whole business is set with Womens one world”, which suggests that it was a matter of time until the Claimant was provided with an employment contract. The Respondent says, without providing any evidence of the same, that the Claimant requested an employment title “on multiple occasions”, but “given the financial constraints of our new company, which is currently operating at a loss, we were unable to afford a full-time employee”. Law[25]The entitlement to paid annual leave, and to compensation for accrued but untaken annual leave on the termination of employment, derives from the Working Time Regulations 1998 (the 1998 Regulations). Worker status – for the purposes of the Working Time Regulations 1998[26]Regulation 2(1) of the 1998 Regulations defines “worker” in the following terms: “ “worker” means an individual who has entered into or work 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”. 5 of 12[27]In essence this means that, in order for the relationship between the putative employer and the individual to be that of worker-employer, the answers to the following questions must all be answered as indicated: a) Was there a contract between the individual and the putative employer? – yes and if so; b) Pursuant to that contract, was the individual obliged to provide their personal service to the putative employer? - yes; and if so c) Was the individual in business on their own account providing services to the putative employer as their client or customer? – no.[28]Determining whether an individual is a worker is an exercise in statutory, not contractual, interpretation (Uber BV v Aslam [2021] ICR 657). The Tribunal must look at the reality of the relationship between the parties by examining all the circumstances, of which any written agreement between them is only part.[29]The concept of “worker” for the purpose of the 1998 Regulations derives from the Working Time Directive 93/104/EC, and the European Union case law on its meaning. Although the UK has left the EU, the UK courts and tribunals are bound by retained EU law immediately before 11 pm on 31 December 2020 (though national principles of interpretation now apply to it).[30]The leading case on the meaning of “worker” for the purposes of the Working Time Directive is Union Syndicale Solidaires Isere v Premier Ministre [2011] 1 C.M.L.R. 38. The ECJ in that case held that the concept of “worker” has an autonomous meaning specific to EU law. The essential feature of that employment relationship was that: “for a certain period of time a person performed services for an under the direction of another person in return for which he received remuneration. The national court had to make an overall assessment of all the circumstances of the case before it, having regard both to the nature of the activities concerned and the relationship of the parties involved”.[31]The Court emphasised: a) The purpose of the Directive – to provide for adequate rest periods as part of minimum health and safety requirements in respect of the organisation of working time; and b) The exceptions to the scope of the Directive must be interpreted restrictively.[32]The Watford Employment Tribunal referred a number of questions to ECJ in the case of B v Yodel Delivery Network Ltd Case C-692/19, which the ECJ answered (by way of Order rather than judgment). In doing so the ECJ helpfully summarised the principles for construing the concept of “worker” for the purposes of the Working Time Directive, including: 6 of 12 a) Those matters described above in the Union Syndicale Solidaires Isere case; b) An employment relationship implies a hierarchical relationship between the worker and their employer, i.e., that the worker is subordinate to the employer; c) Relevant considerations may include:(i) Whether the individual is obliged to accept and perform tasks assigned to them by the putative employer;(ii) Whether the individual can work for people other than the putative employer under the terms of his agreement with the putative employer;(iii) Whether the individual has freedom to choose the time, place and content of their work;(iv) Whether the individual shares in the employer’s commercial risks;(v) Whether the individual forms an integral part of the employer’s undertaking, so forming an economic unit with that undertaking;(vi) The degree of leeway in terms of choice of type of work and tasks to be executed afforded to the individual;(vii) The degree of leeway in terms of time and place of work; and(viii) The degree of freedom the individual has to recruit others to assist them; and d) The degree of latitude afforded to the individual has a bearing on whether that individual will be found to be in a subordinate relationship with the employer, but the national court must check the reality of the situation, and whether any apparent independence is merely notional. The first question: Was there a contract between the individual and the putative employer? (Answer needed for worker status: Yes)[33]As is clear from Regulation 2(1), the contract between a worker and their employer could be express (characterised as such by the parties) or implied. If express, it could be written or oral. This means that, where it is disputed, it is a question for the Tribunal to determine, looking at the relevant evidence.[34]Under the common law of England and Wales, the essential components of a contract are: a) An agreement between two or more parties (offer and acceptance), where they intend to be bound by its terms; 7 of 12 b) Made with the intention of creating legal relations (this is assumed where there is a wage-work bargain, and it is for the party asserting otherwise to prove an absence of intention to create legal relations); c) Supported by consideration, that is to say, benefit that flows from each party to the other(s) (such as the benefit of work done by the individual for the employer, and the benefit of payment from the employer to the individual); d) Where the terms of the contract are sufficiently clear and certain for their objective meaning to be discerned. The second question: Pursuant to that contract, was the individual obliged to provide their personal service to the putative employer? (Answer needed for worker status: Yes)[35]An obligation for personal service is ‘what it says on the tin’ – an obligation for the individual to provide their own labour to the employer.[36]Much of the case law on this subject has concerned contracts where the individual is obliged to perform the work personally, but they can, in sometimes wide and sometimes narrow circumstances, provide another person to perform that work in their stead (perhaps in limited circumstances, for example, where the individual is unable to perform the work, or perhaps from a limited pool of people, such as other people engaged under similar terms by the putative employer, or perhaps both in limited circumstances and from a limited pool of substitutes). The third question: Was the individual in business on their own account providing services to the putative employer as their client or customer? (Answer needed for worker status: No)[37]Both elements of this question must be examined: a) Whether the individual was in business on their own account; and b) Whether the putative employer was the individual’s client or customer when receiving those services from the individual (Main v SpaDental Ltd UKEAT/0124/20).[38]The so-called ‘markers of employment’ can assist in answering this third question, such as: a) The degree of control exercised by the putative employer; b) The exclusivity of the arrangement; c) The duration of the arrangement (Windle v Secretary of State for Justice [2016] ICR 721, because an engagement on an assignment-byassignment basis may indicate a degree of independence, or a lack of subordination, in the relationship); d) The method of payment (e.g., are invoices used?); 8 of 12 e) What equipment the individual uses and whether they or the putative employer supplies that; f) The level of financial risk the individual bears in the performance of the work; g) Whether the individual is paid if there are no tasks to be performed; h) Tax treatment of the individual’s work for the putative employer; i) The degree of integration of the individual into the putative employer’s business (Cotswold Developments Construction Ltd v Williams [2006] IRLR 181); j) How the individual is presented by the putative employer to the outside world; k) What is the dominant purpose of the contract? If it is the provision of personal service to the putative employer, that may help answer the third question. By contrast, if the dominant feature is a particular outcome or objective and the provision of personal service is a secondary or incidental objective, that may point towards the contract being a business-tobusiness one (James v Redcats (Brands) Ltd [2007] ICR 1006); and l) Whether there is subordination between the individual and the putative employer (although that is not an essential feature – Bates van Winkelhof v Clyde and Co LLP [2014] ICR 730).[39]Using the ‘markers of employment’ are aids – they are not determinative in themselves. The question of whether an individual is a “worker” for the purposes of the 1998 Regulations or not is one of statutory interpretation (Bates van Winkelhof). Application to the claims here[40]Determining whether the Claimant is entitled to the £877.05 of holiday pay she claims depends on whether her status when engaged by the Respondent should properly be characterized as a “worker” for the purposes of the 1998 Regulations, or whether she was an independent contractor.[41]Taking the relevant questions in turn: The first question: Was there a contract between the individual and the putative employer?[42]There was evidently an unwritten express contract between the Claimant and the Respondent: the Claimant understood that she was to perform work assigned to her by Dr Lall, in accordance with the arrangements they had made, and the Respondent knew it was obliged to pay her for that work – which it did. The fact that the contract was unwritten does not matter. Indeed, the Respondent does 9 of 12 not appear to dispute that there was a contract between them – but it characterises that contract as one of a freelance arrangement. The second question: Pursuant to that contract, was the individual obliged to provide their personal service to the putative employer?[43]Neither party has called this element into question. The evidence before the Tribunal is that the Claimant was required to perform the work assigned to her, and did so. That was personal service. There has been no evidence of any substitution arrangement, whereby the Claimant could send someone else to perform her work in her place. The Tribunal finds that there was an obligation for the Claimant to provide personal service to the Respondent pursuant to the contract between them. The third question: Was the individual in business on their own account providing services to the putative employer as their client or customer?[44]It is abundantly clear to the Tribunal, on the evidence before it, that the Claimant was not in business on her own account. The Respondent was not her client or customer – it was her employer.[45]While the Claimant sent timesheets through to the Respondent, that was necessary because of the erratic nature of the hours worked. It is not necessary, to establish worker status, that the individual has worked fixed or regular hours.[46]There was clearly a relationship of considerable subordination between the Claimant and the Respondent. Correspondence sent to the Tribunal shows the Claimant emailing Dr Lall and asking for outstanding wages to be paid, sometimes months after those sums were earned, with Dr Lall obfuscating.[47]The Claimant was at one time invited to a barbeque on the weekend which clashed with a personal camping trip she had planned, and she was later told by Dr Lall that “You should have come to the Barb q kind of work related”. This degree of control over the Claimant’s time is indicative of subordination and worker status.[48]The Claimant requested, on 29 November 2022, that the hours she was to work should be fixed. Dr Lall replied: “Not possible as I work in NHS 8-6 and 4 hrs journey and we work oncalls and rota changes every week for consultant obstetricians and gynaecologists… Hrs will change week to week when I m free really”. There was no discussion about this – the Claimant asked, the Respondent decided. The Respondent was in such a position of superiority that it could dictate how the Claimant worked.[49]The Claimant has provided photographs of social media posts for the Respondent which include her, presented as an integrated part of the Respondent’s organisation (Cotswold). 10 of 12[50]Evidently, the dominant purpose of the contract between the Claimant and the Respondent was for the Claimant to provide support services to Dr Lall, as the founder and a statutory director of the Respondent (James). There was no business-to-business contract between the Claimant and the Respondent.[51]While the Respondent has questioned the Claimant’s status, it has not questioned the number of hours she worked when engaged by it. Applying 12.07% to those hours, the Claimant is owed £877.05 by way of compensation for accrued but untaken holiday. Conclusions[52]The Claimant withdrew her complaint in respect of unpaid wages, and that complaint is dismissed upon her withdrawal.[53]For all the reasons, set out above, the Claimant was a worker of the Respondent’s for the purposes of the 1998 Regulations.[54]The Respondent is Ordered to pay the Claimant £877.05 gross.