Ms J Godfrey v Kinship Care Midlothian SCIO: 4103350/2022

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4103350/2022

Venue Edinburgh

Hearing 18 to 20 April 2023

Between

Ms J GodfreyClaimant

Kinship Care Midlothian SCIORespondent

Before

Employment Judge R Mackay

Mr G Bathgate, Solicitor for respondent

Date 13 December 2023

JUDGMENT

The judgment of the Employment T ribunal is as follows:

[1]The claimant did not at any time have the status of “employee" within the meaning of Section 230(1) of the Employment Rights Act 1996 (“ERA").

[2]In the period from 8 July 2021 to 17 February 2022, the claimant had the status of “worker” within the meaning of Section 230(3) of ERA.

REASONS

1 . The claimant has brought a range of claims, some of which require the status of employee; some the status of worker.

[2]This preliminary hearing was fixed to determine whether the claimant had the status of employee. The note fixing the hearing did not address the question of worker status. It was agreed by the parties, however, that this tribunal would determine that as well.

[3]The claimant’s position was that she was at all relevant times an employee, failing which a worker. The respondent’s position was that the claimant was a self-employed contractor or casual worker who did not have either employee or worker status.

[4]The preliminary hearing was also intended to deal with a time bar issue as it related to certain of the claims brought by the claimant. The relevant claims were withdrawn by her such that it was not necessary to deal with that aspect.

[5]The tribunal heard evidence from the claimant herself as well as her mother, Ms Jennifer Godfrey, who was the chairperson of the respondent during the period of the claimant’s engagement, and Mr Ian Edwards, a family friend who accompanied the claimant to a meeting with trustees of the respondent.

[6]For the respondent, evidence was led from Mrs Lynda Maguire. At the material times, she was engaged as an unpaid volunteer for the respondent and acted as a trustee.

[7]The respondent’s solicitor produced a bundle of documents running to almost 400 pages. The bundle was neither paginated nor tabulated. This led to an avoidable and unacceptable delay in commencing the hearing. Findings in Fact

[8]The respondent is a small charity based in Midlothian. It is involved in the support of kinship care children. These are people under the age of 26 who cannot be cared for by their own parents. It is governed by a board of trustees. At the time of the claimant’s engagement, it operated without employees. The administration of the charity was carried out by Mrs Maguire who acted as an unpaid volunteer.

[9]Following discussions between Mrs Maguire and the claimant’s mother Mrs Jennifer Godfrey (who were close friends as well as fellow trustees), the possibility of engaging the claimant in the charity was discussed. Her previous employment had recently come to an end.

[10]At a board meeting on 30 April 2021 chaired by Mrs Godfrey, there was agreement to take steps to employ a member of staff. Mrs Godfrey is noted as having suggested an additional requirement to recruit a part-time fundraiser. 1 1 . The claimant met with Mrs Maguire on 5 May 2021 . A potential role for the claimant was discussed. It was explained to the claimant that the role would involve making funding applications with a view to achieving funding to support the employment of an individual. The respondent was not in a position to engage an employee without such funding in place. The charity was looking to expand into East Lothian. The intention was that the claimant might be trained up to run the Midlothian branch with Mrs Maguire becoming responsible for the new East Lothian branch.

[12]A further meeting took place on 21 June 2021 . At that meeting, it was agreed that the claimant would perform the role as outlined and be paid through administrative funds held by the respondent. It was agreed that she would be paid £15 per hour and would require to invoice the charity for her services as she could not be paid as an employee. The time commitment agreed at this stage was 20 hours per week.

[13]The claimant was not provided with any written contract or other documentation relating to her position. ACTIVE: 1] 4750460v 1

[14]By email of 24 June 2021, the claimant emailed Mrs Maguire asking when she could start. She commenced the engagement on 8 July 2021. She worked from home at that time. Her initial tasks were upskilling on software platforms and progressing funding applications. She was provided with a laptop computer and given a respondent email address. 1 5. She worked largely independently. She was not given instructions as to what she should do or when she should do it. She was free to manage her own time. Communications between the claimant and Mrs McGuire were limited. The first contact between them after the claimant commenced the engagement was on 1 5 July 2021 .

[16]The main priority for the claimant was to secure funding so as to allow the respondent to engage an employee. In one of the funding applications prepared by the claimant, the claimant is described as “imminently anticipated first employee of the [respondent}' . In an email of 28 July 2021 to a voluntary organisation, the claimant sought advice on certain matters to do with having “a first employee” in the context of an application for related funding.

[17]On email correspondence the claimant was referred to as a “volunteer”. On the basis that she was remunerated, she did not in fact hold that status.

[18]In mid-August 2021, questions were raised by the respondent’s treasurer about the claimant’s position. Mrs Maguire described her as working “freelance”. The treasurer questioned the extent of the work and the unaffordability of the role for the charity. After some further discussions, Mrs Maguire was instructed to cease the arrangement with the claimant on 17 August 2021 in order that funding for the position could be formalised. It became clear that the board had not approved the appointment.

[19]By email of 17 August 2021 from Mrs Maguire to the claimant, Mrs Maguire explained that the charity could not employ someone until there was a budget and funding available. Mrs Maguire did not have the time to bid for funding herself and no other person was qualified to bid. ACTIVE: 114750460vl

[20]The claimant ceased providing any work or service on 1 7 August. There was no agreement at that point as to when the claimant would come back to the respondent, but there was an expectation that that would happen once the board had considered the position. 21 . A board meeting took place on 14 September 2021 . It was resolved at that meeting that the respondent should engage a suitably qualified person in business administration to eventually lead, administer and manage the respondent’s Midlothian branch. It was also resolved in a section head “A Short-Term Solution”, that there be the engagement of an identified “key worked to work in a reduced capacity of 10 hours per week to assist with the charity’s office and its administrative functions. The note goes on to state that when and if, funding permits the possibility of extending the hours of the key worker, she should be considered and with mutual consent, to be formally contracted to lead and develop the Midlothian operation. The key worker referred to is the claimant.

[22]The claimant next became engaged by the respondent on 8 November 2021 . In the intervening period, she did not provide any work or perform any services at all.

[23]With effect from 8 November 2021 , the claimant’s role and the way in which she performed it remained the same as had been before. The priority was still to make funding applications. She worked flexibly. At that time, she based herself either at home or in the respondent’s office where she was given a desk. Very limited contact took place between the claimant and Mrs Maguire.

[24]Around 2 December 2021, the claimant became unwell. In an email to Mrs Maguire on that date, she stated that she had been struggling with her mental health. She went on to state “If I was in a regular job I would have sought a doctor’s note or self-certified myself unwell. Obviously there is no point in doing that with [the respondent] as I don’t get sick pay.” ACTIVE: 11 4750460 vl

[25]From 3 December 2021 to 1 7 January 2022, the claimant did not perform any work or services to the respondent. Around this time, the claimant suffered a bereavement and took time to focus on dealing with that.

[26]On 13 January 2022, Mrs Maguire spoke to the claimant’s mother and enquired after the claimant. She had phoned the claimant three times but had not received a reply. There had been no response to emails since 3 December 2021 .

[27]The claimant emailed Mrs Maguire the following day and returned to the respondent on 18 January 2022. Her role and the way in which she performed it remained very much as they had been before.

[28]In an email exchange between the claimant and Mrs Maguire on 24 January 22, Mrs Maguire stated that the claimant was not employed by the respondent but was doing “voluntary work' and being remunerated through budget accrued for administering different projects. Being employed she said was dependent on the respondent raising funds for an employee project. In response the claimant replied that she saw her current work as “akin to freelance working" even if the role is sometimes called volunteer and sometimes called community development worker or other. She stated *7 fully understand I am not a contracted employee".

[29]By email of 17 February 2022, the claimant wrote to the trustees of the respondent. In that email she asserted employee status and set out what she considered to be her statutory entitlements. Her engagement with the respondent ceased with effect from the following day. The claimant responded to the effect that she saw being asked to step down as a suspension and that she expected to be paid. By email of 25 February 2022, the respondent’s treasurer responded to the effect that the claimant was not under suspension, that she should not do any work for the respondent and should not be incurring any expenses pending a board meeting. ACTIVE: 1 14750460v 1

[30]A meeting of the board took place on Friday 4 March 2022. The claimant was invited to attend and was accompanied by Mr Ian Edwards. 31 . By letter dated 1 1 April 2022, the treasurer emailed the claimant disputing her allegation of employment status. The claimant is described as having been a “volunteer with the remit of applying for external funding to enable the respondent to employ a member of staff. She was told that the relationship was at an end with effect from 18 February 2022.

[32]During the period of her engagement with the respondent, the claimant did not work or provide services to anyone else. Observations on the Evidence

[33]Leaving aside the legal question as to the status of the claimant, much of the evidence in the case was not in dispute. The claimant herself was clearly very well prepared and had a detailed knowledge of the documentation. On occasion, however, when being asked to explain points which did not necessarily support her position, she had a tendency to be somewhat evasive and to avoid giving direct answers. That said, the tribunal was satisfied that in all material respects, she was a reliable witness.

[34]The evidence of Mrs Godfrey was of little direct relevance to the subject matter of the hearing. It is clear, however, that she too had a tendency not to accept clear points from the documentation which were unsupportive of the claimant’s position. An example is her seeking to maintain the position that she thought the claimant was already an employee of the respondent in circumstances where she as chair of the board signed minutes referring only to the potential of a first employee being recruited in the future.

[35]The evidence of Mrs Maguire was credible and reliable. She had pulled together a detailed chronology of the relevant steps which aided the fluency of her evidence. The only criticism of Mrs Maguire’s evidence was her tendency to seek to apply labels to the claimant’s role which were either incorrect (volunteer) or clearly devised after the event (self-employed contractor). That said, these are matters for the tribunal to determine looking at the evidence as a whole.

[36]The evidence of Mr Edwards was peripheral and whilst the tribunal was grateful to him for his attendance, nothing of substance flows from the involvement he had. Relevant Law & Submissions

[37]An employee is defined as: "an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment" (section 230(1), ERA).

[38]A contract of employment means: "a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing" (section 230(2), ERA).

[39]A worker is defined as: “an individual who has entered into or works under (or, where the employment has ceased, worked under) either of the following:• A contract of employment.

• 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. ” ACTIVE: Il 4750460v 1 (Section 230(3), ERA).

[40]To establish protection under any of the two categories, an individual must establish that they have a contract with an organisation. 41 . A contract is formed by offer and acceptance. The offer is a proposal from one party which is: sufficiently definite in its terms to form a contract, capable of acceptance and made with the intention of being bound by acceptance. Acceptance is a statement (in writing or verbal) or conduct by an offeree indicating assent to the offer. The assent must be unqualified.

[42]To form a contract there must be: agreement on essential terms, intention to create legal relations and certainty of terms. In general, the essential terms are: the parties to the agreement, the subject-matter of the contract, and the price or the mechanism for pricing arrangements. There must be an intention by the parties to create a legally binding arrangement. Where no such intention can be attributed to the parties, there is no contract.

[43]Where there is a dispute as to status, case law has developed a number of tests which may be applied. The leading authority in this context remains the case of Ready Mixed Concrete (South East) Ltd v The Minister of Pensions & National Insurance

[1968] 2 QB 497

. The core elements of a contract of employment include:(1) an agreement to provide the individual’s own work or skill in the performance of service for the employer in return for a wage or remuneration;

(2) in the performance of that service, the employer has a sufficient degree of control over the employee; and

(3) the other provisions are consistent with a contract of employment.

[44]Commonly referred to as "the irreducible minimum”, an employment contract must have personal service. There must be sufficient control and there must be mutuality of obligation. Other factors include the provision of equipment, the degree of financial risk adopted, the degree of integration into the business, whether a person is paid when absent due to sickness and whether the person is paid a fixed wage or salary.

[45]Also relevant are the parties’ intentions and how they describe themselves (unless this is not reflective of the reality of the situation) (Young & Woods Ltd v West

[1980] IRLR 201

[46]In considering the question of worker status, the primary focus should be on the relevant statutory wording (Uber & Others v Aslam & Others

[2021] UKSC 5

[47]Mr Bathgate produced a skeleton argument and given that the claimant was unrepresented, he agreed to make his submissions first. Applying the facts to the relevant statutory tests, he invited the tribunal to find that there was no mutuality of obligation and insufficient control to amount to employee status. He referred also to the parties’ clear understanding and the clear intention as evidenced from the documentation before the tribunal.

[48]In relation to worker status, Mr Bathgate’s alternative position in the skeleton argument was that the claimant was a “casual worker” albeit still on independent contractor basis.

[49]The claimant made submissions on her own behalf and referred to the tests in Ready Mixed Concrete. She invited the tribunal to find that the irreducible minimum was satisfied and that other factors such as the degree of integration and the provision of equipment pointed to an employment relationship. She did not bear any financial risk and was not offering services as part of a business undertaking carried out by her. She did not do any work for any other parties.

[50]If not an employee, the claimant submitted she was a worker.

[52]The subsequent actings of the parties demonstrated that the contract was flexible in that it permitted the respondent to cease to offer work or services where it wished to do so. Equally, the claimant was able to remove herself from providing work or services when she did not feel able to do so or had other matters to attend to.

[53]The parties also, by their conduct, demonstrated that the contract was one where the level of hours (and thus remuneration) might vary.

[54]The tribunal went on to consider whether the contract was one of employment. Considering first of all the question of personal service, it is clear that the contract required the personal service of the claimant. Only she was able to provide the service. There was no question of any substitution rights or delegation. The first element of the test is, therefore, established.

[55]So far as control is concerned, the tribunal considered who had the power of deciding the things to be done, the way in which they should be done and the means to be employed in doing them, as well as the time and the place where they should be done.

[56]In this context, the tribunal was not satisfied that the respondent exercised control sufficient to satisfy the legal test.

[57]As set out above, having been given key tasks to perform (and these revolved principally around funding applications), the claimant was left largely to her own devices in order to progress them. Other than an odd occasion where she was asked to meet with Mrs Maguire, she decided how she did the work and the means to be employed in doing it. She determined where and when to do the work. ACTIVE: Il 4750460v 1

[58]The tribunal recognises that senior employees will often work without direct supervision in this way. It was mindful, however, that this was a relatively junior position in a very small organisation with no other employees. There was not the capacity, even if there had been the intention, for the claimant to be operating under the level of control that might be anticipated of an employee at her level. Moreover, there was no contractual right of control over the claimant in the work that she performed. She was not subject to any rules or policies.

[59]The tribunal also considered the question of mutuality of obligation. There must be an obligation on the respondent to provide work and pay a wage to the claimant, and the claimant must be obliged to accept and perform that work.

[60]For the reasons outlined above, the tribunal was not satisfied that the necessary mutuality of obligation existed in the contract between the parties. As is evident, both parties operated the arrangement on the basis that the respondent could cease to offer work and the claimant could cease to accept work if either wished to do so. It is noteworthy that during the period of the claimant’s engagement, she was only actively engaged for approximately a quarter of the time.

[61]The absence of mutuality can mean that there is no contract at all. The tribunal was, however, satisfied that a contract remained in place despite the pauses in work. On each occasion, the pause was intended to be temporary with a view to the claimant resuming at a later date. There was no deliberate separation between the different periods of work. The tribunal was, therefore, satisfied that a contract existed throughout albeit that it was as the claimant herself described "akin to freelance work' or as Mr Bathgate submitted “casual work”.

[62]With two of the essential elements missing in assessing employment status, the tribunal concluded that the claimant was not an employee for the purposes of ERA. It was not, therefore, strictly necessary to look at other factors. One particularly pertinent factor, however, is the description applied by the parties themselves and their intentions. As set out in the Findings in Fact, it was very clear that there was no intention that the claimant be an employee. The respondent was not in a position to engage an employee without funding and funding was not in place. The whole purpose of the claimant’s engagement was to obtain funding such that an employee could be engaged. It is illogical, therefore, to suggest that it was intended that the claimant be an employee from the outset of the engagement. That is reinforced by the various descriptions applied by the parties in the documentation. It is illogical to suggest that the claimant was already an employee when producing documentation seeking approval for the respondent to engage its “first’ employee.

[63]The tribunal then considered whether the claimant had the requisite worker status. For the reasons outlined above, she operated under an unwritten contract and she undertook to perform work personally.

[64]The key question, therefore, applying the statutory language was whether the relationship between the parties was one of client of a profession or business undertaking carried on by the claimant.

[65]The tribunal had no hesitation in finding that the relationship between the parties was not one of a client of a business undertaking. The claimant did not operate any business. She did not work for anyone else. She did not seek to provide services to any other parties. The claimant was provided with equipment and an office space within the respondent’s premises. She did not assume any level of risk in undertaking the work. She was given an email address and was held out as representing the organisation in funding applications. These factors do not point to a relationship of a true selfemployed contractor operating independently in the running of a business or profession. ACTIVE: 114750460v 1

[66]For those reasons, the tribunal was satisfied that the claimant had the status of worker under ERA. Further Procedure

[67]In light of these findings, the tribunal will list the case for a final hearing to determine those claims brought by the claimant which require only worker status.

[1]December 2023. The claimant appeared on her own behalf, the respondent charity was represented by Mr G Bathgate, Solicitor, instructed by Ms L Maguire.

[2]In compliance with the Tribunal’s earlier Orders parties lodged a Joint Bundle of documents in which certain colour copies were substituted, of consent of parties, at the outset of the Hearing.

[3]The Final Hearing followed upon the Judgment of Employment Judge R Mackay, as to the claimant’s employment status, issued to parties on the 7th of August 2023 following the Open Preliminary Hearing which proceeded before him on the 2nd of June and in which he determined as follows:- “(i) The claimant did not at any time have the status of “employee” within the meaning of section 230(1) of the Employment Rights Act 1996 (“ERA"). In the period from 8th July 2021 to 17th February 2022, the (ii) claimant had the status of “worker" within the meaning of section 230(3) of the ERA.” At paragraph 67 of the Note of Reasons attached to his Judgment, the Employment Judge directed: “67. In light of these findings, the Tribunal will list the case for a Final Hearing to determine those claims brought by the claimant which require only worker status.”

[4]In the Note issued by Employment Judge Macleod following the Closed Preliminary Hearing which proceeded before him on the 24th August 2023 and the claimant having, at that stage continued to insist upon her claim for statutory sick pay, Judge Macleod, at paragraphs 27 to 36, recorded the issues which were remitted to today’s evidential Hearing, viz:- “27. Unlawful Deduction from Wages: Statutory Sick Pay: (03/12/21 to 17/1/22) 28. Unlawful Deduction from Wages: Arrears of Pay for 60 hours worked in February; 33. Unlawful Deduction of Wages: Statutory Holiday Pay (proportionate to the period 08/07/21 - 17/02/22)35. Failure to Provide a Written Statement of Particulars of Employment; and

36. Failure to Provide a Written Itemised Pay Statement”

[5]Complaints of Unlawful Deduction of Wages (Statutory Sick Pay), and of Failure to Provide a Written Itemised Pay Statement were subject to the respondent’s challenge, on a Proof Before Answer basis, as to Jurisdiction standing the Tribunal’s Determination of the claimant’s employment status. By letter dated 27th of November 2023 the respondent’s representative wrote 6. to the Tribunal, and to the claimant, making certain concessions which had the effect of narrowing the issues in dispute between the parties requiring Determination at the Hearing.

[7]In the course of Case Management Discussion conducted at the outset of the Hearing, and following a short adjournment thereafter to allow parties to liaise, the following matters were confirmed by parties as agreed and recorded as binding upon the Tribunal for the purposes of the Hearing:-(a) That there was due and resting owing to the claimant, as at the Effective Date of Termination of her contractual relationship with the respondent as a “worker”, an accrued but untaken 3.4 weeks of entitlement to paid annual leave, in respect of which the claimant is entitled to be compensated in the sum of £826.74.

(b) That the claimant’s agreed hourly rate of pay was £15 per hour.

(d) That the respondent concedes liability in respect of the complaint of failure to provide written terms (of working) (section 1(1) of the Employment Rights Act 1996, and contends that the remedy under section 38 of the Employment Act 2002 should be restricted to the minimum award of two weeks pay at £240.56 per week, whereas, the claimant contends that the 10 remedy should be fixed at the maximum amount of four weeks pay x £240.56 per week, in the amount of £962.24.

[8]Otherwise, the respondents confirmed that they maintained their positions;-(a) That standing the Tribunal’s earlier Determination of the claimant’s “non employment” status, the claimant had no right or entitlement to claim and the Tribunal had no Jurisdiction to Consider her claim for statutory sick pay; and

(b) That while accepting that the claimant had carried out some work for the respondents in the month of February 2022 they did not accept that she carried out 60 hours of work and put the claimant to her proof in that regard.

The Issues

[9]Thus, the issues which remained in dispute between the parties as requiring investigation and determination by the Tribunal at the Hearing were:- (First) Had the claimant entitlement in law to receive, and had the Tribunal Jurisdiction to Consider her complaint of Unauthorised Deduction from Wages in so far as constituted by the non payment of (Second) Let it be assumed that the claimant had such Title and the Tribunal had such Jurisdiction, which is denied by the respondent, did the claimant, in any event, comply with the notification requirements under the Statutory Sick Pay (General) Regulations 1982/84 such as to trigger an entitlement to law to receive statutory sick pay in the period 3rd 12th 21 to 17th January 2022. (Third) Let it be further assumed that the claimant did so establish and trigger her entitlement to receive statutory sick pay, in what amount was she entitled to so receive statutory sick pay and accordingly, in what amount had the respondent made an unauthorised deduction from her wages in not making payment of statutory sick pay to her. (Fourth) How many hours of work did the claimant carry out for the respondent in the month of February 2022 (for which work she is entitled to be remunerated at the rate of £15 per hour), and accordingly, by not so remunerating her, in what amount did the respondent make an unauthorised deduction from the claimant’s wages contrary to the provisions of section 13 of the Employment Rights Act 1996. (Fifth) What is the value of the award to which the claimant is entitled in terms of section 38 of the Employment Act 2002, standing the respondent’s admitted breach of their obligations under section 1(1) of the Employment Rights Act 1996.

[10]The claimant gave evidence on affirmation, on her own behalf. For the respondent the Tribunal heard evidence from Ms Maguire, now Chair of the respondent but at the time of the claimant’s engagement the volunteer who, on the respondent’s behalf, had entered into a contractual arrangement with the claimant.

[11]Following the conclusion of evidence, parties each addressed the Tribunal in submission.

[12]As already noted, parties lodged a Joint Bundle of documents to some of which reference was made in the course of evidence and submission. Findings in Fact

[13]On the documentary and oral evidence presented, the Tribunal made the following essential Findings in Fact and Findings in Fact and in Law, restricted to those relevant and necessary to the Determination of the Issues. Claim for Statutory Sick Pay

The Applicable Law

[14]Entitlement to (Eligibility to receive) Statutory Sick Pay is regulated by the terms of the Social Security Contributions and Benefits Act 1992 which prescribes that “employees" (which for this restricted purpose includes all those whose earnings are liable to Class 1 National Insurance Contributions (NICs) have eligibility to receive statutory sick pay; and Regulation 16 of the Statutory Sick Pay Regulations 1982 (which defines employee with reference to earnings). On the evidence presented, the claimant does not fall within the definition of employee as set out in section 151(1) and Regulation 16 of the SSP Regulations.

[15]The Employment Tribunal has no Jurisdiction to Consider the claimant’s complaint of Unauthorised Deduction from Wages in so far as it is founded upon an alleged failure on the part of the respondent to pay statutory sick pay.

[16]Separately and in any event, let it be assumed that the claimant had eligibility and the Tribunal Jurisdiction, which matters the Tribunal has determined in the negative, the claimant did not comply with the requirements of Regulation 7(1)(b) of the SSP Regulations 1982 in respect of notification of sickness absence such as to trigger any obligation on the part of the respondent to pay

[17]The agreed arrangement which operated between the claimant and the respondent prior to dispute arising between them as to the number of hours worked by the claimant in the month of February 2022, was that the claimant would maintain a contemporaneous timesheet record of the number of 15 minute units worked by her in the course of a month and would thereafter invoice the respondent for the number of recorded units (hours) against which invoice it was the respondent’s practice to pay without requiring further vouching.

[18]The claimant so maintained a contemporaneous record of the hours which she worked for the respondent in the month of February 2022.

[19]That timesheet record is produced at page 226 of the Joint Bundle and records that between the 1st of February and the 17th of February 2022, (the latter being the date of termination of parties’ contractual relationship), the claimant recorded a total of 232 15 minute units which is equivalent to 58 hours.

[20]In the period 1st to 17th February 2022 inclusive the claimant carried out 58 hours of work for the respondent for which she is entitled to be remunerated at the agreed rate of £15 per hour, in the sum of £870.

[21]The respondents retrospectively and exceptionally asked the claimant for additional documentary vouching of the work which she carried out in February of 2022. In response to that request the claimant constructed from her own record the more detailed Schedule and Specification of the work carried out by her in the month of February 22 which is supported by elements of documentary vouching and which appear at pages 141 to 197 of the Bundle. The claimant accepted in cross examination that she compiled that more detailed Schedule after the event, in response to the respondent’s request that she vouch the hours returned on her timesheets and partly in contemplation of the current litigation.

[22]The respondent failed to provide the claimant, in her capacity as a worker, with any written terms of “employment” (of working) at any point in the course of the parties’ contractual relationship.

[23]In the same period the respondent variously referred to the claimant, in communications with the claimant and with others subsequently shared with the claimant, by various descriptive and at times contradictory terms including, amongst others, a beneficiary of the Trust, a volunteer, a volunteer worker, a key employee, an independent contractor. That changing spectrum of descriptors caused the claimant to be confused and concerned as to her status. It contributed to her belief that she was an employee and thus enjoyed the full ambit of “employment rights”. It informed, in part, her decision to raise proceedings before the Employment Tribunal.

[24]The respondent is a charity whose Board, at the time of their entering into a contractual relationship with the claimant was composed entirely of volunteers who failed to give consideration to the terms of their potential obligations arising under the Employment Rights Act 1996 and had, at that time, no employees. They did not engage with their obligations under section 1(1) of the ERA 96 until, at the earliest, they received a request from the claimant, on or about 17th of February 2022, that they provide her with written terms of employment.

[25]The respondent’s utilisation of varying descriptors of the claimant’s status aggravated their failure in their section 1(1) ERA 96 duty.

[26]In the circumstances including the balancing of the respondent’s aggravation of their failure in their ERA section 1(1) obligation by the applying to the claimant of numerous varying descriptors, on the one hand, with their charitable and at the material time entirely voluntary status on the other, it is just and equitable that the claimant receive an award of three weeks pay, in terms of section 38 of the Employment Act 2002, in compensation for the respondent’s admitted failure in their ERA 1996 section 1(1) duty.

[27]The agreed arrangement between the parties being that the claimant would invoice the respondent in respect of the hours worked by her at the agreed hourly rate on a monthly basis and that the respondent, for its part, would make payment to the claimant against such invoices, no duty arose on the part of the respondent, to otherwise provide the claimant with “written pay statements”. Parties’ Submissions

[28]The claimant, for her part, urged the Tribunal to make the maximum award of four weeks pay in terms of section 38 of the Employment Act. In doing so she founded upon the aggravation caused by the confusing, and at times contradictory, descriptors of her status applied by the respondent in communications with her, and with others shared with her, and notwithstanding the respondent’s voluntary and charitable status.

[29]In relation to statutory sick pay the claimant, upon consideration of extracts from the relevant Government website which appeared to indicate the same and which were provided to her by the respondent’s representative, appeared to reluctantly accept that standing the Tribunal’s earlier Determination of her “non employment” status that she did not have entitlement to receive

[30]By way of explanation, the claimant stated that she had conceived of and presented her complaint in respect of statutory sick pay in the context of her believing that she was an employee which she was now constrained to accept, standing Judge Mackay’s Determination, she was not.

[31]In relation to hours worked, while maintaining her claim for 60 hours the claimant accepted that the contemporaneous timesheets, upon which she primarily founded, recorded 232 units or 58 hours of work. She accepted that in quantifying her claim as one for 60 hours retrospectively, she did so on the basis that she felt she had worked more than 232 units, that is to say that she had carried out work which she had not recorded in her contemporaneous timesheet. She accepted that the more detailed particularisation of the work which was partly supported by documentary vouching upon which she also relied, was one compiled by her on her own laptop from records retained by her after the event and in response to the respondent’s request that she provide her further vouching.

[32]For the respondent Mr Bathgate reiterated his opening submission that the claimant fell outwith the definition of “employee” as contained in section 151(1) of the Social Security Contributions and Benefits Act 1992 and Regulation 16 of the Statutory Sick Pay (General) Regulations 1982/84, and that the claimant accordingly lacked Title, and the Tribunal Jurisdiction, to respectively present and consider the claim in respect of statutory sick pay. He urged the Tribunal to dismiss that claim for want of Jurisdiction.

[33]He submitted in the alternative and in any event that the claimant had not complied with notification of sickness absence requirements set out in the SSP Regulations such as to trigger obligation on the part of the respondent to pay statutory sick pay, let it be assumed that she fell within the employee category who enjoyed entitlement to it, which was denied by the respondent. In relation to the section 38 Employment Act Remedy, Mr Bathgate urged upon the Tribunal, in light of the respondent’s charitable and, at the material time entirely volunteer, status to view the remedy to be accorded to the claimant in light of the respondent’s admitted breach of their section 1(1) ERA duties, as appropriately quantified in the minimum award of two weeks’ pay.

[34]In respect of the claim for arrears of pay in the month of February Mr Bathgate submitted that while the respondent accepted that the claimant had carried out some work for the respondent in the month of February 2022 they did not accept, and continued to put the claimant to her Proof in respect of, the number of hours claimed. In the respondent’s estimate, he submitted, that the claimant might have worked for around 20 hours. He accepted that the respondent had an obligation to pay the claimant, for the hours which the Tribunal determined the claimant had worked, at the agreed hourly rate. Discussion and Disposal

[35]As the Tribunal has found in fact and in law the claimant’s circumstances, at the material time for the purposes of her claim, did not place her within the relevant statutory definition of “employee” for the purposes of being entitled to receipt of statutory sick pay. Thus the claimant lacks Title to Present and the Tribunal lacks Jurisdiction to Consider that complaint which falls to be dismissed on those grounds.

[36]Separately, and in any event, let it be assumed that the claimant had an entitlement, the Tribunal has found in fact that she failed to notify her employer in compliance with the requirements of the Statutory Sick Pay Regulations such as to trigger an entitlement to receive statutory sick pay.

[37]The claimant confirmed in evidence that for the purposes of notification she relied entirely and solely upon the email sent by her to the respondent’s Ms Maguire on the 2nd of December 2021 which is copied and produced at page 89 of the Joint Bundle. The terms of that email, objectively construed, and according to the words used their normal English language meaning, do not amount to a notification (in terms of Regulation 7(1 )(b) of the SSP Regulations 1982) that she was unfit to work, and of a sickness absence. Although the claimant explained in the course of her oral evidence her reasons for composing and sending the email in the terms in which she did and that in effect it was a communication designed to mask the real situation namely that she felt unfit to work, that retrospective explanation does not result in the email constituting a notification. Further, and in any event, the claimant sent further emails, subsequent to that of the 2nd December which again, objectively construed, bear to communicate that she was feeling better. She sent no email to the respondent, other than that of the 2nd December, in which she gave notification of unfitness to work.

[38]By way of explanation in evidence the claimant stated that she had somehow become aware of the Government announcement, copied and produced at page 100 of the Joint Bundle which gave notice of a temporary “Covid suspension” in the requirement for those who were off work for more than seven days and whose sickness absence started between the 10th of December 2021 and the 26th of January 2022, to obtain and submit a Fit Note from their doctor until their absence exceeded 28 days. She explained that she had retrospectively misinterpreted that announcement as applying to her, albeit that she accepted that on her own evidence the first day of her asserted absence occurred on the 2nd of December and thus placing her outside, as meaning that she did not require to obtain or submit to the respondents, a doctor’s Fit Note even though her absence, again in her assertion had exceeded seven days (as at the 9th of December 2021). I was not persuaded by that explanation standing the fact that the extract announcement upon which she relies was unequivocal in its terms and on her own evidence the claimant did not become aware of it until after the 9th of December, that being the date upon which, let it be assumed, she had been self-certifying sick absence for seven days, from 02 December 2021 her obligation to obtain and submit a doctor’s Fit Note was triggered.

[39]In relation to her obligation to give notification, a matter upon which the public announcement was silent and was not concerned with, the claimant submitted that an “employer’s” obligation to enquire after the state of health of an employee who is on sick leave wholly absolved her of any obligation under the SSP Regulations to notify the respondent that she was or continued to be self-certifying sickness absence. That is a proposition which has no basis in law and which the Tribunal rejects Remedy under section 38 of the Employment Act 2002

[40]Upon the balancing of parties’ submissions each of which I found to be relevant their being on the one hand an element of aggravation and on the other hand an element of mitigation, I have concluded that it is just and equitable in the circumstances that the claimant’s remedy in terms of section 38 of the Employment Act be quantified in the amount of three weeks pay, that is 3 x £240.56 in the sum of £721.68; and the Tribunal Orders the respondent to make payment to the claimant in that amount. Arrears of Pay in February 2022

[41]I accepted as both credible and reliable, the claimant’s evidence that she contemporaneously recorded in the timesheets set out at page 226 of the Bundle the number of 15 minute units spent by her carrying out work for the respondent in the move of February 2022. That was evidence which the respondent had no factual basis to contest and thus, put the claimant to her Proof.

[42]While the respondent challenged the validity and circumstances in which the fuller specification of work carried out (which is partially supported by documentary vouching) was created by the claimant, the requirement that the claimant produce such further particularisation and documentary vouching was one which the respondent sought to impose retrospectively and after the work in question had been carried out.

[43]Prior to the respondent so doing, the accepted practice operated by the parties was that the claimant would contemporaneously record her hours worked on the timesheet document and would invoice the respondent based on that timesheet, without a requirement for any further particularisation or vouching, and that the respondent would thereafter pay the claimant against that invoice and timesheet without a requirement for further vouching or particularisation. The only reason advanced by the respondent’s Ms Maguire, in respect of the respondent’s departure from that practice and the retrospective was that whereas she had previously trusted the claimant, in respect of the February work invoiced she no longer trusted the claimant. The respondent had paid against all of the claimant’s previous invoices which were supported only by her contemporaneously completed timesheet.

[44]I accepted the claimant’s evidence that she had contemporaneously recorded the units of time worked by her and set out in the timesheet at page 226 and I accordingly hold that the claimant has established, on the balance of probabilities, that she did work those recorded hours which total, however, only some 58 hours and not the 60 hours claimed. It was a matter of agreement between the parties that the respondent was liable to make payment to the claimant at the rate of £15 per hour for the number of hours which the Tribunal ultimately held she had worked. I accordingly determine that the respondent is due and resting owing to the claimant in the sum of £870 in respect of the 58 hours worked by her, at the agreed hourly rate, in the month of February 2022. In so withholding payment the respondent made an unauthorised deduction from the claimant’s wages contrary to the provisions of section 13 of the Employment Rights Act 1996 and is ordered to make payment to the claimant in the sum equivalent to that deduction.

[45]The fourth issue noted by Judge Macleod in his Case Management Note as being remitted to Final Hearing namely “failure to provide a written itemised pay statement” was one which was not focused by parties at the Hearing and which, in any event, given the agreement as to invoicing by the claimant and payment against invoice by the respondent can be seen to have fallen away.