Miss A Towers and Miss P Milton v Care Match UK Elite Staffing Ltd (in creditors voluntary liquidation) and The Secretary of State for Business and Trade: 2306512/2024 and Others Miss A Towers and Miss P Milton v Care Match UK Elite Staffing Ltd (in creditors voluntary liquidation) and The Secretary of State for Business and Trade: 2306512/2024 and Others

EMPLOYMENT TRIBUNALS

Case No 2306512/2024, 2306597/2024, 6008350/2024

Between

Miss A Towers (C1) Miss P Milton (C2) ANDClaimant

Care Match UK Elite Staffing Ltd (in creditors voluntary liquidation) (R1) The Secretary of State for Business and Trade (R2)Respondent

Before

Employment Judge Da Costa

Date 2 March 2025

JUDGMENT

The judgment of the Tribunal is as follows: Employer’s Payment (redundancy payment) (s166 ERA 1996) and debts owed on insolvency of employer (s182 ERA 1996)

[1]The claimants were employees of Care Match UK Elite Staffing Ltd (now in Creditors Voluntary Liquidation) (R1) within the meaning of s230 of the Employment Rights Act 1996.

[2]Miss Towers’ (C1) claim that the Secretary of State for Business and Trade (R2) is liable to make payments to her pursuant to s166 and s182 of the Employment Rights Act 1996 is well founded.

[3]Pursuant to the reference under s170(1)(b) of the Employment Rights Act 1996 the amount payable by the Secretary of State for Business and Trade (R2) in respect of Miss Towers’ (C1) claim pursuant to s166 is determined to be a gross amount of £942 (namely 2 weeks pay calculated in accordance with s168(1)(a) and s162(1) and (2)(b) of the Employment Rights Act 1996).

[4]Miss Milton’s (C2) claim that the Secretary of State for Business and Trade (R2) is liable to make a payment to her pursuant to s182 of the Employment Rights Act 1996 is well founded.

[5]Pursuant to s188(3)(a) and (b) of the Employment Rights Act 1996 it is declared that the Secretary of State for Business and Trade (R2) ought to make payments pursuant to s182 of the same Act, and that the amounts of such payments are:(a) a gross figure of £864.24 (calculated as £471 in respect of one week’s notice pay plus £393.24 in respect of 5.4 days holiday pay) in respect of Ms Towers’ (C1) claim; and

(b) a gross figure of £1,713.73 in respect of Ms Milton’s (C2) claim (equivalent to holiday pay of 149.72 hours or 4.16 weeks at 36 hours per week). Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated

REASONS

[1]By these claims the claimants bring claims against Care Match UK Elite Staffing (R1). Miss Towers (C1) brings a claim for a statutory redundancy payment, notice pay, and unpaid holiday pay. Miss Milton (C2) first brought a claim for the same. However, at a preliminary hearing on 8 January 2025 C2 withdrew her claim for a redundancy payment because she accepted that she did not have two years’ continuous service. The case management order of that date stated that C2’s remaining claim was for holiday pay. Accordingly, by a judgment made at that preliminary hearing on 8 January 2025 C2’s claim for redundancy payment was dismissed upon withdrawal. At the hearing of 10 February C2 confirmed that the claim in her ET1 form for notice pay was not being pursued because her period of continuous employment with R1 had been less than 2 years.

[2]Both C1 and C2 assert that they were employees of R1. R1 has not entered any response and has not participated in this hearing. The Secretary of State for Business and Trade (R2) entered a response in relation to C2.

[3]R1 is in creditors voluntary liquidation and accordingly has no funds to meet any judgment. The only purpose of any judgment being entered against it would be to obtain payments from R2, to whom the claimants have made claims which have been refused.

[4]C1 also pursues a claim against R2 for payments from the National Insurance Fund pursuant to s166 and s182 of the Employment Rights Act 1996.

[5]C2 also pursues a claim against R2 for a payment from the National Insurance Fund pursuant to s182 of the Employment Rights Act 1996.

[6]R2 accepts that R1 is insolvent within the meaning of sections 166 and 182 of the Employment Rights Act 1996 but disputes liability on the basis that it asserts that the claimants were not employees of R1. Issues:

[7]It is common ground as between all parties that R1 is insolvent within the meaning of sections 166 and 182 of the Employment Rights Act 1996. Therefore, the sole Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated issue in dispute is whether C1 and C2 were both employees of R1 within the meaning of s230 of that Act. Facts:

[8]C1 started working for R1 on 21 February 2022. She produced a document bearing her signature and the manager’s (K Marney) signature dated 9/3/23 that set out the “terms and conditions for employment with” R1. Insofar as material to the issue in this case, it also stated as follows that (bracketed clause numbers refer to clause numbers of that document):• (clause 1) “Alexandria Towers began working with Elite Staffing on 21.02.2022 as an “Agency Support Worker”;

• (clause 2) “this position is a 0 hour contract and will not have a set shift pattern”;

• (clause 3) “as an agency support worker, you will be required to attend different clients [sic] home’s [sic] that are agreed prior to your assignment”;

• (clause 3) “you will be required to work a minimum of 24 hours a month unless you have informed us that you are not available for work”;

• (clause 3) “you will be required to work at least 24 hours over the weekend periods unless it has been agreed prior to your start date by management”;

• (clause 4) “your 30 hour contract of employment with Elite Staffing is subject to evidence of your right to work in the UK being supplied to the company and substantiated as necessary”;

• (clause 6) “Working Time Regulations 1998 state that you are entitled to regular breaks in the working day and regular rest periods between working days”;

• (clause 7) in relation to “attendance and timekeeping”, “please refer to Care Match Elite staffing Absence and Lateness policy[;] [s]hould you have any queries please contact your line manager”;

• (clause 8) “you are entitled to choose if you want to subscribe for a discount card (Bluelight Card) after your probationary period of 13 weeks”;

• (clause 8) “you will have the opportunity to be chosen as Employee of the Month following criteria such as hours worked, reliability with attendance/absences and timekeeping, positive feedback from clients”;

• (clause 8) “Care Match Elite Staffing also has a referral scheme which will earn you up to £100.00 if you and your referral passed probation with us”;

• (clause 9) in relation to “absence”, “if you are absent from work for any reason, you must inform Care Match Elite Staffing office or the out of hours mobile within two hours of your shift start time”;

• (clause 10) in relation to “notice period”, “if you are looking to leave Care Match Elite Staffing you should inform your line manager in writing of your Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated intention to leave. Please be aware that the amount of notice required depends on the amount of time that you have been employed by Care Match Elite Staffing, therefore if you have worked with Care Match Elite Staffing for three months or less, the minimum amount of notice required is one week, followed by two weeks notice of continuous employment between three and twelve months, thereafter the minimum amount of notice required is 4 weeks”;

• (clause 11) “you are required to wear uniforms as provided by Care Match Elite Staffing”;

• (clause 12) “you will be paid your holiday entitlement weekly, you will be able to view your holiday allowance on your weekly pay slip, any queries should be directed to your line manager who will contact the finance department on your behalf”.

[9]C1 also provided a payslip in her name for the pay period 06/05/2024 to 12/05/2024 (Tax Month 2) from R1 which she indicated was her final payslip. That document indicated “employment details” including a tax code and an “employee ID”. It also indicated as follows:• pay of “regular hours” of “23.0000 hours” at a rate of £11.75 corresponding to £270.25 gross;

• pay of “regular hours” of “12.0000 hours” at a rate of £15.75 corresponding to £189.00 gross;

• holiday pay accrued and paid to the value of £354.96;

• PAYE deduction of £114.40;

• Employee National Insurance Contribution – A of £45.78;

• NEST (RAS) deduction of £27.77;

• Holiday Leave hours accrued of 2.15 hours, of which “0.00” used and a YTD balance of 32.36.

[10]In oral evidence C1 stated that her contract was not a zero hours contract, that originally she was contracted to work 24 hours per week which was then increased to 36 hours, that the shifts were rolling 12 hour shifts, and that she was given at least 3 such shifts per week. She said, and I accept and find as a fact, that her final shift was on the day on which R1 became insolvent which was 10 May 2024 and that employees had received an email informing of the insolvency a week before that on 03 May 2024. She said that she had had shifts booked up until the middle of May 2024 but those disappeared upon redundancy and she was not paid for those.

[11]C1 stated that she was at all times paid via PAYE weekly in arrears by R1. That evidence, which I accept, is confirmed by the payslip provided. She also stated that R1 would have been the entity that would have been responsible for disciplining her (if that were necessary which did not occur) in relation to absence and timekeeping, and that the manager responsible would have been Sarah Ward Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated or another of R1’s Directors. This is consistent with the terms of the contract provided and I accept C1’s evidence as to it.

[12]C1’s recollection, which aligned with her ET1 form and aligns with the payslip provided, was that she was given one week’s notice for which she worked and was paid, but that she was entitled to two weeks’ notice. Clause 10 of the terms and conditions as quoted above makes provision for the contractual notice that C1 was required to give to R1 on requesting to leave employment with R1; but makes no provision for the amount of notice that R1 was required to give on termination of the contract. For the purposes of section 184(1) of the Employment Rights Act 1996, however, the relevant debt is the statutory minimum notice which pursuant to section 86 of the 1996 Act is 2 weeks notice in the case of C1. I therefore find as a fact that R1 paid C1 for one week of the two weeks notice to which she was entitled, and that the remaining debt is therefore one week’s pay.

[13]C1 stated in evidence that her weekly pay was on average £396 gross or £326 net. However, I accept on the basis of her oral evidence as to the number of hours she worked per week (see paragraph 10 above) and the payslip provided taken together, that her average weekly pay as at the date of her cessation of employment was £471 gross (£270.25 + £189 as above + £11.75 to make up the regular 12 hour shifts to 24 plus 12) corresponding to weekly shifts totalling 36 hours. I am unable to calculate from the payslip provided the net figure because I am not in possession of information as to how the PAYE and National Insurance deductions split between the regular hours’ pay and the holiday pay as shown on the payslip provided.

[14]C1 stated in evidence that she was owed 5.4 days’ holiday pay accrued but untaken, calculated by the insolvency practitioner as £393.24. In the absence of documentary evidence to the contrary, I accept that and find it as a fact. The evidence of C2 (see paragraph 19 below) that holiday pay marked as “paid” on the final payslip was not in fact paid due to R1 becoming insolvent applies equally to C1.

[15]C2 confirmed that, as per the information in her ET1 form, she started working for Care Match on 10 October 2022 and that the final day of her employment was 10 May 2024.

[16]C2 was not able to produce her contract of employment but said that it was in the same terms as that of C1. On the basis of the fact that their employment was contemporaneous, I accept that evidence. She stated that she was contracted to work 36 hours per week but could ask for more hours if she wanted to, and that R1 always gave her extra hours if she needed them, because they always had them available. Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated

[17]In relation to pay owed for holiday accrued but untaken, C2 stated that she had not taken any holiday at all during the period of her employment, and that she was entitled to a total of £1,713.73 as per the calculation on her final payslip.

[18]C2 provided a final payslip, in her name, for the pay period 06/05/2024 to 12/05/2024 (Tax Month 2) from R1. That document indicated “employment details” including a tax code and an “employee ID”. It also indicated as follows:• pay of “regular hours” of “14.0000 hours” at a rate of £14 corresponding to £196.00 gross;

• holiday pay accrued and paid to the value of £1,713.73;

• PAYE deduction of £333.60;

• Employee National Insurance Contribution – A of £76.85;

• NEST (RAS) deduction of £33.88;

• Holiday Leave hours accrued of 3.88 hours, of which “0.00” used and a YTD balance of 149.72.

[19]On my enquiry as to why the payslip she had provided showed the amount of holiday pay as having been “paid” via electronic transfer, C2 stated that whilst the amount of £1,713.73 had been calculated on a pay slip, it had not in fact been paid. On inspection, the above payslip that C1 provided, had attached to it an email from R1 saying “Hi Paege – unfortunately we have been instructed by the insolvency practitioner that we are unable to pay outstanding accrued holiday pay at this time[. They] have frozen the account and would be dealing with any loss of earnings[. This] is why your payslip has been changed as we cannot pay holiday at this time[. We] will pass you the practitioner contact details once we have been advised what the process is.” C1 then provided a second payslip for the same pay period 06/05/2024 to 12/05/2024 (Tax Month 2) in her name from R1 showing pay of “14.0000 hours” at the rate of £14 corresponding to a gross amount of £196 but showing no entry or amount for “holiday pay accrued and paid”. On the basis of that documentary evidence, I accept and find as a fact that C2 accrued holiday to the value of £1,713.73 over the total period of her employment which was not paid. The payslip showed that amount as representing a balance of 149.72 hours accrued in the year to date. Based on a weekly working hour rate of 36 hours per week, this equates to 4.16 weeks worth of holiday entitlement (149.72/36 = 4.16).

[20]C2 stated that she was at all times paid via PAYE weekly in arrears by R1. This evidence is confirmed by the payslips provided, and I accept it. She also stated that R1 would have been the entity that would have been responsible for disciplining her (if that were necessary which did not occur) in relation to absence and timekeeping, and that this would have been done by her line manager who would have been first Kelly Marney then Ricky Bessent who were shift managers employed by R1. This is consistent with the terms of the contract provided by C1, and I accept C2’s oral evidence as to it. Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated

[21]C2’s evidence in relation to the amount of notice worked and paid was the same as C1’s evidence on the point. She accepted that she was not entitled to more than one week’s notice because she had not been employed by R1 for more than two years, and that was the reason she gave for not pursuing her original claim for notice pay. On her evidence, which I accept, I find as a fact that she worked and was paid for that one week’s notice. Secretary of State’s Liability:

[22]The liability of the Secretary of State to make any payment derives from the Employment Rights Act 1996 as set out below.

[23]Section 166 of the Employment Rights Act 1996 provides as follows: s166 Applications for payments.(1) Where an employee claims that his employer is liable to pay to him an employer’s payment and either— (a) that the employee has taken all reasonable steps, other than legal proceedings, to recover the payment from the employer and the employer has refused or failed to pay it, or has paid part of it and has refused or failed to pay the balance, or (b) that the employer is insolvent and the whole or part of the payment remains unpaid, the employee may apply to the Secretary of State for a payment under this section.

(2) In this Part “employer’s payment”, in relation to an employee, means— (a) a redundancy payment which his employer is liable to pay to him under this Part, (aa) a payment which his employer is liable to make to him under an agreement to refrain from instituting or continuing proceedings for a contravention or alleged contravention of section 135 which has effect by virtue of section 203(2)(e) or (f), or (b) a payment which his employer is, under an agreement in respect of which an order is in force under section 157, liable to make to him on the termination of his contract of employment.

[24]Section 182 of the Employment Rights Act 1996 provides as follows: 182 Employee’s rights on insolvency of employer. Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated If, on an application made to him in writing by an employee, the Secretary of State is satisfied that—(a) the employee’s employer has become insolvent,

(b) the employee’s employment has been terminated, and

(c) on the appropriate date the employee was entitled to be paid the whole or part of any debt to which this Part applies, the Secretary of State shall, subject to section 186, pay the employee out of the National Insurance Fund the amount to which, in the opinion of the Secretary of State, the employee is entitled in respect of the debt.

[25]Section 184 of the Employment Rights Act 1996 applies section 182 to arrears of pay; accrued holiday pay and statutory notice pay (but subject to maximum amounts).

[26]For the Secretary of State to be liable the Claimant must be an employee.

[27]Section 230 of the Employment Rights Act 1996 provides as follows: 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.

(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. Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Act “employment”— (a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and (b) in relation to a worker, means employment under his contract; and “employed” shall be construed accordingly.” Employment Status - General

[28]The s230 definition distinguishes between “employed” individuals on the one hand, and self-employed individuals, or independent contractors, on the other; that is between those working under a “contract of service” and those working under a “contract for services”. However, the statute does not set down the circumstances in which an individual may be said to work under a contract of employment.

[29]In the absence of any comprehensive definition of a contract of employment, courts and tribunals have developed a number of tests over the years aimed at helping them identify such a contract. It is now accepted that no single factor will be determinative of employee status and a number of factors must be looked at.

[30]There are three essential elements which must be present in every contract of employment. They are frequently referred to as the ‘irreducible core’ without which a contract cannot be regarded as a contract of service, taken from MacKenna’s judgment in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 1 All ER 433

, QBD. They are:(a) an obligation for the Claimant to have provided the work personally;

(b) mutuality of obligation;

[31]With regard to the first element, even if the contract contained a limited power to delegate, there may still have been the obligation present for the employee to have provided work personally, but where there was a clear express contractual term which did not impose personal obligations, that would ordinarily militate against an Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated employment relationship unless it was a sham or had been varied (Staffordshire Sentinel-v-Potter

[2004] IRLR 752

). Mutuality of obligation:

[32]With regard to the second element, an employer and an employee must have been under legal obligations to one another during the entire contractual period under focus. Ordinarily, the obligations will have been upon the employee to undertake work when required/asked and upon the employer to have paid for it. Casual workers ordinarily fall outside of the ambit of this principle (Carmichael-vNational Power

[2000] IRLR 43

). Further, where the express terms of a contract made it clear that such obligations did not exist, there cannot have been an employment relationship. Gaps between assignments were just as relevant as the assignments themselves when considering all of the circumstances (Sec of State for Justice-v-Windle

[2016] EWCA Civ 459

). Control:

[33]Finally, the employer must have had a sufficient degree of control, in terms of the general sense of authority exercised over an employee, for such a relationship to have existed. ‘Control’ in this sense was not to have been equated to the undertaking of work under close supervision.

[34]If the three essential elements were present, the relationship can have been one of employment, but it was also necessary to consider all of the other surrounding circumstances to finally determine its true nature. Those circumstances can include the degree of personal financial risk, the extent to which the individual provided his/her own equipment, whether the claimant was paid holiday and/or sick pay and whether he/she paid their own tax and national insurance or whether that was achieved through PAYE. There are many different factors that could be relevant. Submissions of C1 and C2:

[35]C1 and C2 stated at the hearing that in their opinion they were employees of R1. They stated that they were at all times paid via PAYE by R1, and that they were care assistants placed by R1 with clients of R1 when care workers of those clients were absent. Submissions of R1:

[36]Upon receiving notice of the date of the hearing of this claim, R1 wrote by email to McAlister & Co (the insolvency practitioner with conduct of the insolvency proceedings for R1) on 17 September 2024 noting that C1 and C2 had been told that they were not employees of R1. In that email Nigel Ward, director of R1 stated “I can confirm that they both were indeed employees of CMES”. On 17 September 2024 McAlister & Co confirmed to R1 that they had included C1 and C2 on their Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated list of employees provided to the Redundancy Payments Service (RPS) and that they had subsequently confirmed by email to the RPS that C1 and C2 were employees and that the term “Agency worker” (included on the claim forms of C1 and C2) related to their job title, not to their employment status. Upon receiving from RPS the submission relating to employment status for the purposes of these claims, McAlister & Co made R1 aware by email on 3 February 2025 of RPS’s position. R1 responded by email on 4 February 2025 confirming their view that “[C1 and C2] were employed and contracted to Care Match Elite Staffing[. The] confusion has come from the terminology of their titles[. Their] role was to provide care support when a care establishment required support from a care agency.” Submissions of R2:

[37]By way of an attachment to its ET3 response that R2 requested be accepted as the Secretary of State’s written submissions in respect of the hearing, the Secretary of State made submissions in relation to C2 as follows: “It is not admitted that the claimant is an employee of Care Match Elite Staffing Limited within the meaning of Section 230 (1) of the 1996 Act. That provision describes an employee as "an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment. In section 230(2) of the Act a "contract of employment" is explained as "a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. [paragraph 6 of the attachment to the ET3] The claimant has not been able to provide a written contract of employment. The Insolvency Practitioners (IP) have confirmed that the company is an agency which supplies workers to other employers, the nature of business is confirmed as Supply of agency staff to healthcare sector. In addition, on her application (RP1 form) submitted on 4 June 2024, the claimant confirmed she was an Agency Worker. [paragraph 7 of the attachment to the ET3] Miss Milton’s claim was rejected by the Secretary of State previously because the Redundancy Payment Service (RPS) believes the claims would not be payable as the claimant is not a direct employee, but she was in fact employed as an agency worker. In Addition, the claimant is not entitled to redundancy pay because we believe Miss Milton had not been continuously employed for a period of at least two years as required by section 155 of the Act. [paragraph 8 of the attachment to the ET3]”

Conclusions:

[38]C2’s claim for redundancy pay was withdrawn by consent and dismissed on the basis that she did not have 2 years’ continuous service and she did not pursue her claim for notice pay. R2’s submissions on that point are therefore moot. Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated

[39]R1 does not dispute that C1 and C2 were employees and the insolvency practitioner accepted the same. However, R2 disputed the point in its written submissions attached to its ET3 and did not withdraw its position. The question as to employment status therefore remained to be determined by the Tribunal.

[40]The written terms and conditions of C1’s engagement with R1, which I have found as a fact above also would have applied to C2, repeatedly refer to “employment” and “employed” and in the “other benefits” section and the signature block refer to “employee”. However, terminology in a contract does not in and of itself definitively determine employee status. In addition, the irreducible minimum of a contract of service or employment contract must be present in the features and arrangements of the working relationship.

[41]As set out above, the irreducible minimum of a contract of service or contract of employment are personal service, mutuality of obligation, and control.

[42]The contract for C1 stated on its face that it was a “30 hours contract” and that (my emphasis) “you will be required to work a minimum of 24 hours a month unless you have informed us that you are not available for work”. The evidence of C1 and C2 was that they were employed on agreed weekly shift patterns. The same contract (my emphasis) “required [C1] to attend different clients [sic] home’s [sic]”, “required” notice on termination, and stipulated obligatory notice of absence. Whilst C1 and C2’s role was described as “agency support worker”, it is clear to me that they were contracted directly by R1 to provide services directly to R1’s clients on behalf of R1. The arrangements did not allow for any delegation of employer’s requirements or responsibilities from R1 to R1’s clients and C1/C2 were under no obligation to supply services to R1’s clients without prior assignment by R1. On that basis I reject the Secretary of State’s submission that the nature of R1 was to “suppl[y] workers to other employers” and that C2 was not a “direct employee” of R1. Accordingly, in my judgment it is clear that:(a) the contract between R1 and C1/C2 was not a zero hours contract, and

(b) the contracts under which C1 and C2 were employed required personal service, in the sense that under those contracts C1 and C2 were obliged to supply their personal services to R1’s clients on behalf of R1.

[43]It is clear to me that with regard to mutuality of obligation, C1/C1 and R1 were under mutual legal obligations to each other during the entire contractual period, namely for C1 and C2 to undertake work as per assignments assigned by R1 and for R1 to pay them for it. Therefore, in my judgment the feature of mutuality of obligation as between C1/C2 and R1 was present. The same mutuality of obligation was not present as between C1/C2 and R1’s clients.

[44]In relation to control, the following features were present in the employment arrangements between C1/C2 and R1, and were not present or applicable as between C1/C2 and R1’s clients with whom R1 placed them under assignment: Case Number: 2306512/2024 & 2306597/2024 (claims 6008350/2024 and 2306597/2024 consolidated(a) R1 paid C1 and C2’s tax and national insurance via PAYE;

(b) R1 provided C1 and C2 with uniforms;

(d) R1 offered benefits over and above pay, namely subscription to the Bluelight Card, a referral reward scheme, and an “employee of the month” designation;

(e) R1 paid pension contributions in respect of C1 and C2;

(f) C1 and C2 did not take any personal financial risk in relation to their assignments and activities for R1;

(g) there was a line management relationship between C1/C2 and R1;

(h) C1 and C2 were subject to R1’s absence and lateness policies and were required to report absences to R1;

(i) any disciplinary processes would have been conducted by R1.

[45]On that basis, in my judgment R1 exercised significant control over C1/C2, and R1’s clients did not exercise any control over C1/C2 independently of direction by R1. In my judgment, the factors in paragraph 44 above are indicators of an employer/employee relationship.

[46]It follows that C1 and C2 were employees of R1 and that C1 and C2 have established in principle that the Secretary of State is liable to make the payments sought, therefore their claims are well founded.