Mrs W Graham v Denburn Funeral Service Ltd: 4108024/2020

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4108024/2020

Between

Mrs W GrahamClaimant

Denburn Funeral Service LtdRespondent

Before

Employment Judge J G d’Inverno

Date 16 November 2021

REASONS

[1]The open preliminary hearing, in this case originally, set down for one day only on 13 May 2021, proceeded in the event, across four days, in consequence of:(a) initial single day allocated being inadequate to allow parties to be heard on the three preliminary issues and on the contested application to amend which had additionally set down for consideration on that same day;

(b) the cessation of trading by the respondent and the concurrently intimated resignation of law agents on 18 June 2021 but with confirmation that the claim remained defended on the basis outlined by the respondent’s representative at the first day of the OPH; and,

(c) the hearing of parties for and in opposition to and the determination, on 23 June 2021 of the respondent’s director’s opposed application for postponement of the continued days of hearing, for the purposes to attempt to put in place alternative legal representation, which failing to prepare to personally conduct the defence on the respondent’s behalf.

The issues

[2]Following the Tribunal’s partial determination of the issues following the first day of the hearing, in terms of its Interlocutory Orders of 13 May a written copy of which was sent to parties on 20 May, 2021, there remained before the Tribunal at Open Preliminary Hearing (“OPH”), for determination at this juncture of proceedings, the residual preliminary issues of; the claimant’s employment status in the period 13 August to 2 October 2020 the latter being the date upon which her asserted “employment” with the respondent ended, and the collateral issue of jurisdiction (time-bar).

[3]It was a matter of concession on the part of the respondent and agreement between the parties, binding upon the Tribunal for the purposes of the open preliminary hearing, that in the period from the commencement of her working with the respondent, in the claimant’s assertion the 21 November 2019 and in the respondent’s from 6 January 2020, up to and including the 13 August 2020, the claimant was an employee of the respondent in terms of section 230 of the Employment Rights Act 1996 (“ERA”).

[4]The position of the respondent was that, by communications, part text and part verbal between the claimant and the respondent’s director Mr Dennis McKenzie in the period 12 and 13 August 2020, parties expressly agreed that with the effect from that latter date (13 August 2020), the claimant would provide services to the respondent on a strictly self-employed basis, to be remunerated by way of an invoiced gross fee of £250 per funeral. The position of the claimant was that although there were discussions which took place on or around 12 and 13 August 2020, both by text and verbally, in which the respondent’s director offered her the option of changing her employment status to that of self-employed, those discussions did not end in an agreement which she would do so and the she, for her part, did not ever so agree. Oral and documentary evidence

[5]Across the four days of hearing the Tribunal heard evidence from five witnesses being:- for the Claimant;• the Claimant,

• Mr Baxter, a funeral service cellibrant who worked with the claimant;

• Ms Smith, a funeral director with whom the claimant had previously worked and who helped the respondent in setting up his business in which the claimant was employed;

• Miss Porter, the claimant’s daughter who from time to time assisted the claimant in the preparation of deceased bodies and, for the Respondent:-

• Mr McKenzie, director of the respondent company. All witnesses gave evidence on oath or on affirmation and answered questions put in cross-examination. Findings in fact

[6]On the oral and documentary evidence presented the Tribunal made the following essential findings in fact, restricted to those relevant and necessary to the determination of the preliminary issue status.

[7]It was a matter of concession on the part of the respondent, and of agreement between the parties binding upon the Tribunal for the purposes of the open preliminary hearing, that in the period from the commencement of her working with the respondent, in the claimant’s assertion from the 21 November 2019 and in the respondent’s from 6 January 2020, up to and including the 13 August 2020, the claimant was an employee of the respondent in terms of section 230 of the ERA.

[8]The respondent asserted in evidence that, by communications, part text and part verbal between the respondent’s director Mr Dennis McKenzie, in the period 12 and 13 August 2020, parties expressly agreed that with effect from that latter date, 13 August 2020, the claimant would provide services to the respondent on a self-employed basis for which her remuneration would be fixed in a gross amount of £250 per funeral and paid against invoices rendered by the claimant.

[9]The claimant asserted in evidence, that although the respondent’s director raised with her, in the course of the communications of 12/13 August 2020, whether she wished to opt to become self-employed, those communications did not result in any agreement that she would do so. The claimant for her part asserted that she did not do so and that no consensual change to her employment status occurred on 13 August 2020 or at any other time prior to her asserted dismissal on 2 October 2020.

[10]The claimant’s employment with the respondent commenced, at the latest, if not earlier, on the 6 January 2020. The claimant’s contractual relationship with the respondent terminated on 02 October 2020. The respondent ceased trading as at 18 June 2021.

[11]Prior to her commencing employment with the respondent the claimant and the respondent’s director discussed the potential for salary in respect of the claimant to be variable and dependant upon the amount of work which was available to be done in what was a new start-up business, and on the profit which could be generated on that work.

[12]The claimant worked variable hours and had contractual right to receive variable pay.

[13]Shortly after commencing employment with the respondent, and due to the uncertainty going forward of the level of variable wages which she might expect to receive, the claimant, with the respondent’s knowledge and agreement, sought other work to be carried on by her concurrently with her employment with the respondent, on a part-time basis.

[14]The respondent received a request for a reference, in respect of the claimant, from Aberness Care Ltd, a care provider, on or about 20 February 2020.

[15]The claimant commenced concurrent employment with Aberness Care Ltd, as a support worker, on or around 12 March 2020.

[16]Both in the period during which it is agreed between the parties that the claimant was an employee of the respondent, and after the alleged change of employment status, 13 August 2020, the claimant concurrently worked for Aberness Care Ltd as a support worker.

[17]At the commencement of her doing so, the claimant worked only a few hours per week with Aberness Care Ltd. The claimant increased her hours with Aberness Care Ltd, again with the knowledge and consent of the respondent, both in the period prior to and post 13 August 2020.

[18]The claimant did so to secure a regular and predictable income stream, in circumstances where the unpredictable volume of work coming into the respondent’s business and resultant cash flow issues, meant that the frequency with which she received salary payments from the respondent was variable as was also the amount from time to time received, due to the level of profit being generated and cash flow difficulties within the respondent’s business.

[19]Latterly, prior to the cessation of her relationship with the respondent on 2 October 2020, the claimant worked three booked shifts with Aberness Care Ltd and organised the execution of her duties in relation to the respondent’s business, where she was able to agree the same with customers of the respondent’s business, around those pre-booked shifts, in order to deconflict the two.

[20]“In their initial discussions, conducted during the set up phase of the respondent’s business and before it opened for business, the claimant and the respondent’s director discussed the potential for the claimant to earn up to and possibly in excess of around £20,000 per annum gross in return for her working a 37.5 hour per week subject to business in the new start up building up to a level and generating sufficient profit to sustain such earnings. At that time it was the mutually shared aspiration of the parties that the business would develop in a way that would allow that potential to be realised. It is positively averred by the respondent at paragraph 11.5 of the paper apart to form ET3 (R-34) that “On 30 July 2020, the claimant was paid her agreed salary of £1,700 less deductions”. Neither the claimant nor the respondent’s director explored or confirmed in evidence what precisely was meant by the phrase “her normal salary” including, in particular whether it was meant to be read as an offer to prove that, as at 30 July 2020 the salary of the claimant had been agreed between the parties in the sum of £1700 less deductions for a recurring cut unspecified pay period; or alternatively, was to be read as an offer to prove that in so far as salary was due and resting owing to the claimant as at 30 July 2020 the parties agreed that the amount so owing, at that particular time was £1700 less deductions”.

[21]In the period April to July 2020 the respondent conducted funerals, in which the claimant carried out work, as follows:-• In April 2020, three funeral services (10, 14, 22 April);

• In May 2020, two funeral services (15, and 22 May);

• In June 2020, three funeral services (9, 16 and 23 June);

• In July 2020, one funeral service (27 July)

[22]In the period 31 January 2020 to 2 October 2020 the claimant only received from the respondent the five payslips copied and produced at C88 to C92, that is payslips for; a) the pay period 6/01/20 to 5/02/20 in the net amount of £666.67; b) for the pay period 6/02/2020 to 5/03/2020 in the net amount of £666.67; c) for the pay period 6/03/2020 to 5/04/2020 in the net amount of £667.67; d) for the pay period 6/04/2020 to 5/06/2020 the claimant received no payslip; e) for the period 6/06/2020 to 5/07/2020 the claimant received no payslip; f) for the period 6/07/2020 to 5/08/2020 a payslip showing a net pay due of £1,334.11, from which the respondent showed deductions made totalling £133.58. g) the claimant received no other payslips from the respondents.

[23]On 26 August 2020, the claimant was paid a further sum of £2,450 before deductions which the respondent asserts was agreed by the claimant in that amount and not questioned by her.

[24]On 18 August 2020 the respondent conducted one funeral service.

[25]The respondent’s non-issuing of payslips to the claimant in the period after the alleged change of status, 13 August 2020, is not unequivocably indicative of such a change of status having occurred, as the respondent also failed to issue payslips to the claimant for three of the months during which it is a matter of concession the claimant was the respondent’s employee, namely the months of April, May, and June 2020.

[26]The last day upon which, in the claimant’s assertion she worked for the respondent as an employee and, in the respondent’s assertion provided services to the respondent in a self-employed capacity, was 1 October 2020.

[27]The claimant first presented her initiating application form ET1 to the Employment Tribunal on 29 December 2020.

[28]In the terms of the boxes ticked at section 8.1 of the ET1 the claimant gives notice, in the form as first presented, of a complaint of:-• Unfair dismissal (including constructive dismissal) and of claims for:-

• Notice pay;

• Holiday pay; and

• Arrears of pay.

[29]In the narrative box at the foot of section 8.1 although not ticking the box at the commencement of 8.1 to indicate a claim of discrimination on the grounds of sex, the claimant expressly gives notice, in the narrative box, of a claim of “harassment related to sex” and, in the paper apart attached to the form ET1, of express reliance upon section 26 of the Equality Act 2010.

[30]The respondent produced at pages R56, 57 and 58 respectively, a copy of an online generated P45, parts 1A, part 2 and part 3. The copy P45 part 1A bears to be dated on behalf of the respondent 26/08/2020 and, at section 4 bears an inserted leaving date of 31/08/2020.

[31]No receipted copy of the P45 or other acknowledgement of receipt by the claimant is produced. No other documentation going to show whether and if so on what date a P45 was given by the respondent to the claimant or otherwise brought to the claimant’s notice by the respondent, is produced.

[32]The claimant’s position in evidence on oath was that she did not receive any P45 from the respondent, and in particular, had not seen or had any knowledge of the document produced at R56-58, before seeing it in the course of the current litigation.

[33]At R-87 the respondent produces a summary of text exchanges passing between the claimant and the respondent’s director on 12 and 13 August 2020 and relating to the possibility, focussed by the respondent’s director Mr McKenzie on 11 August 2020, that the claimant considers opt to cease to be an employee of the respondent and commence the provision of services to the respondent, going forward, in the capacity of self-employed independent contractor.

[34]The potentially relevant extracts from the text exchange are:-• 12/08/2020, 12:14pm – [from] Denburn Limited: “Give me a call when you are finished at 1.30”, and [sent after an intervening telephone conversation];

• 12/08/2020, 7.13pm – [from] Wendy Graham: “still through your [sic books] or going self-employed?”;

• 12/08/2020, 6pm – [from] Denburn Limited: “self-employed means you get the total amount paid directly to your self and claim your own expenses”;

• 12/08/2020, 7.37pm – [from] Wendy Graham: “Yeah I understand that….sorry I meant to say do you want me to stay on your books or go self-employed?”;

• 12/08/2020, 7.30pm – [from] Denburn Limited: “Your choice”;

• 12/08/2020, 8.42pm – [from] Wendy Graham: “Ok I’ll let you know Tmr I haven’t really thought about it before.”

[35]The above exchange of texts does not disclose an agreement between the parties to change the claimant’s status from employee to self-employed contractor.

[36]Both prior to and after the alleged date of change of status (13/08/2020). The claimant was the only “funeral director” working in the respondent’s business, by which was meant not that she was a director of the company in terms of the company’s acts, but rather, that she was the person responsible for and who dealt with all aspects of funeral arrangements.

[37]Both prior to and after the alleged date of change of status (13/08/2020) the claimant’s duties were and remain unchanged and included:-(a) answering e-mails and updating social media entries for the respondent;

(b) taking telephone calls and instructions from the respondent’s director Mr McKenzie;

(c) taking telephone calls from customers and potential customers, both directly and via the 24/7 emergency contact line which was redirected to her own phone when the claimant was not in the office premises or was working with Denburn Care, to either her personal phone or the work mobile phone provided to her by the respondents;

(d) meeting with customer families;

(e) agreeing arrangements with customer families;

(f) contacting and making arrangements for involvement of a celebrant where required;

(g) uplifting/receiving the body;

(h) preparing the body for burial/cremation;

(i) confirming arrangements;

(j) arranging for family viewings;

(k) communicating with third parties including for example florists as required;

(l) the delivery and collection of the deceased;

(m) attending at the funeral service and crematorium/cemetery with families;

(n) the delivery of ashes,

(o) the provision of an aftercare service as required; and,

(p) generally dealing with all aspects of the arrangement and execution of funerals.

[38]The respondent’s non-issuing of payslips to the claimant in the period after the alleged change of status date, is not an equivocally referable to or indicative of such an alleged change of status as the respondent also failed to issue payslips to the claimant for three of the months in which it is a matter of concession by the respondent and agreement between the parties that the claimant was an employee of the respondent namely in the months of April, May and June 2020 in the circumstances the non-issuing of payslips to the claimant is a neutral factor.

[39]The respondent issued to the claimant in respect of tax year to 5 April 2020, a P60 which is copied and produced at C-110.

[40]The claimant’s signing block on e-mails relating to the respondent’s work, both in the period prior to and after the date of the alleged change in employment status was, and with the knowledge of the respondent remained:- Wendy Graham, Denburn Funeral Services, Managing Director Funerals In-House Funeral Planning Specialist Stewart House 38 Ellon Road Bridge of Don Aberdeen Http://www.denburn.co.uk

[41]Prior to the onset of the Covid lockdown in March 2020 the claimant carried out the majority of her duties on the claimant’s business premises attending there as required at times deconflicted with her Aberness Care duties

[42]Following the onset of the Covid lockdown, in or about March 2020, the respondent’s director, Mr McKenzie instructed the claimant to work substantially from home coming into the office only to deal with matters which had been dealt with on the premises. That instruction remained in place unchanged both before and after the date alleged change of status (13/08/2020).

[43]When working from home and attending at the respondent’s premises only when necessary, the claimant continued to discharge the full range of duties set out at paragraph 40 above.

[44]There was no change to the claimant’s working pattern or scope of duties as between the period when it is conceded by the respondent and agreed between the parties that the claimant was an employee of the respondent and the period after the date of the alleged change of status all be it that the amount of time spent by the claimant working respectively for the respondent and for Aberness Care varied in both periods.

[45]Although the claimant was issued by the respondent with a work mobile phone, she conducted the respondent’s work business substantially on her own mobile phone.

[46]The claimant used her own mobile phone for the respondent’s work and business from the outset of her employment with the respondent, both during the period in which it is agreed the claimant was an employee of the respondent and, without change in the period after the date of the alleged change in status.

[47]The claimant had a link on her linkedin/page to “Denburn Funeral Directors” which she maintained in place both before and after the date of the alleged change in status, removing it only at the time of the cessation of her relationship with the respondent, that is after 2 October 2020.

[48]During the period of setting up of the respondent’s business, which was a new starter the claimant and a former work colleague in her previous employment, Ms Smith who was assisting the respondent’s director in the set up including, along with the claimant setting up the necessary systems, accompanied the respondent’s director Mr McKenzie on a number of shopping trips where the respondent’s director purchased items with which to furnish the business premises.

[49]The claimant and Ms Smith also brought into the premises, for use by them in the premises some personal items which they already possessed and thus could be provided without cost. They did so on a loan basis with the permission and consent of the respondent’s director. The items so provided and used by the claimant:-• vases (kept under the sink);

• hair straighteners;

• a make-up bag;

[50]Ms Smith, when bringing to an end her relationship with the respondent at a time earlier than the claimant, advised the claimant that, for her part, she was content to leave those items in place for use by the claimant as long as she remained in the respondent’s employment but, should she ever leave that employment she, the claimant, should regard those items as donated to her and should remove them at the same time as her own personal belongings.

[51]The personal items utilised by the claimant in the respondent’s business were so utilised by her both in the period during which it is agreed that she was an employee of the respondent and that after the date of the alleged change of status.

[52]After the cessation of her relationship with the respondent, on 2 October 2020 the claimant by e-mail dated 23 October 2020, the claimant asked if she could attend at the respondent’s premises to uplift those personal items together with those donated to her by her former work colleague Ms Smith.

[53]In neither the period preceding nor the period following the date of the alleged change in status, did the claimant sub-contract any part of her duties, nor did she provide a substitute to carry out her duties including in particular not subcontracting to or paying her daughter to carry out any of her duties.

[54]As part of the business set up the respondent recruited the claimant and her former colleague Ms Smith to function as “funeral directors” a title describing individuals who, within the respondent’s business, would plan and execute funerals. Both individuals were women.

[55]The claimant and Ms Smith discussed with the respondent’s director the appropriateness of them dressing in a uniform way. The respondent’s director agreed that they should do so.

[56]The claimant and Ms Smith identified and purchased suitable and uniform items of clothing which are shown in the photograph copied and used at C38.

[57]The claimant’s position in evidence was that the respondent had reimbursed her and Ms Smith for the cost of the uniforms. The respondent’s director’s position in evidence was that he did not believe that he had done so. No documentary evidence of reimbursement was produced.

[58]The claimant and Ms Smith dressed in their uniform clothing items when performing the formal aspects of their duties in the respondent’s business. The claimant did so both before and after the date of the alleged change in status without any variation in the practice. The claimant and Ms Smith did so with the knowledge and consent of the respondent’s director.

[59]The claimant did not arrange, or preside at any funerals for any party other than the respondent during the whole period in which she asserts she was an employee of the respondent. She did not wear the uniform items in the discharge of any duties other than those performed for the respondent or on any other occasion.

[60]The claimant’s maiden name was Urquhart. Despite having separated from her husband she continued and continues to use her married name, “Graham”, in relation to formal documents, that being the name which appears on her current passport and which appears on her bank accounts, one of which had previously been a joint bank account.

[61]The claimant considered it appropriate to continue to use her married name in e-mail correspondence conducted on behalf of the respondent and did so and continued to do so both in the period during which it agreed she was an employee of the respondent and the period after the asserted change in employment status. She did so with the knowledge and consent of the respondent.

[62]The claimant’s business cards, used by her in the respondent’s business with the knowledge of the respondent, show on the reverse side the signing block which also appears on the claimant’s e-mails namely; “Managing Director of Funerals” and “In-house Funeral Planning Specialist”, operating from the respondent’s business premises “Stuart House, 38 Ellon Road, Bridge of Don, Aberdeen” together with details of the respondent’s website address.

[63]Neither the business cards nor the signing block contained any address or contact information for the claimant other than that of the respondent.

[64]The claimant’s e-mail signing block and the information appearing on her business cards were in use by the claimant, with the respondent’s knowledge, both during the period when it is agreed that the claimant was an employee of the respondent and in the period after the date of the alleged change in status “in unaltered terms”.

[65]The telephone number, shown on the business cards was the respondent’s office telephone number which, when not manned at first hand, diverted automatically to the business mobile telephone provided by the respondent to the claimant, the same being situation which pertained both in the period before and after the date of the alleged change in status.

[66]The claimant’s contact and interaction with third parties such as crematoria, florists and families was, throughout both periods conducted through the medium of the respondent’s business.

[67]Prior to and during the period when it was agreed that the claimant was an employee of the respondent, the claimant, from time to time engaged in a hobby which involved the creation of “memory bears”. It was the claimant’s practice to make “memory bears” from time to time for use in fund raising exercises by or for charities. It was not the claimant’s normal practice to charge for the creation of such bears.

[68]On one occasion, shortly after the commencement of the claimant’s period of undisputed employment with the respondent, the claimant was asked to create a particular type of memory bear which she agreed to do but which involved her in undertaking an additional training course and in the purchase of certain additional materials not already possessed by her. The cost of the course and of the materials purchased totalled £48. At the request of a friend, for whom the bear was created, the claimant issued an invoice to that individual “Tom WH” dated 20/01/2020 in the amount of £48 for the reimbursement of those additional costs incurred.

[69]The date of that invoice predates the date upon which the respondent offers to prove that the claimant’s employment with the respondent commenced namely it predates that 6 February 2020. The invoice was issued in the period during which the respondent, at paragraph 4.4 and 4.5 of the paper apart to form ET3 offers to prove that by express agreement the claimant was assisting the respondent in the set up of the business prior to her taking up employment and was doing so on a gratuitous and non-remunerated basis.

[70]The claimant issued that invoice under the name “Mindy Memory Bears” which was the same name by which she described the hobby on her facebook page. The invoice dated 20 January 2020 is copied and produced at R-90. At the request and suggestion of the respondent’s director Mr McKenzie, the claimant placed a link to the respondent’s business on her facebook page alongside the information about her hobby.

[71]Following the cessation of the claimant’s relationship with the respondent, on 2 October 2020, the claimant set up and now operates a business known as “Heels on Wheels”. From October 2020 the claimant included on her Linkedin page, reference to her qualifications as a massage therapist and reference to operating as a mobile foot health practitioner from October 2020 going forward.

[72]In October 2020 and following the cessation of her relationship with the respondent’s business the claimant simultaneously removed reference to her working for “Denburn Funeral Directors”, from her Linkedin page.

[73]The claimant’s Linkedin page made erroneous reference to her being a funeral director with Dignity Memorial Funeral Homes in the period May 17 to August 2020. The claimant had in fact ceased employment with and doing any work for or on behalf of Dignity Memorial Funeral Homes in the Autumn of 2019 when she left that company’s employment with a view to assisting in the set up of and ultimately taking up employment in the respondent’s startup business.

[74]The exchange of e-mails between the parties did not constitute an agreement to alter the claimant’s employed status.

[75]The claimant asserted in evidence that following the inconclusive exchange of text messages between the parties on 12 August, the claimant had a faceto-face meeting with the respondent’s director Mr McKenzie on 13 August 2020. The claimant asserted in evidence that at that meeting she told the respondent’s director that having considered the matter she wished to remain employed. She stated in evidence expressly that she had not and did not agree to the proposed change in her status.

[76]The respondent’s director while accepting that the exchange of e-mails did not result in any agreement per se, asserted in evidence at the face-to-face meeting which he had with the claimant on 13 August 2020, the claimant had subsequently agreed to a change in her status from that of employed to selfemployed. The respondent’s director was unable to provide any specification of the detail of the face-to-face exchange in terms of which he asserted the claimant’s agreement was communicated. He stated rather than the change of status was the whole point of the conversation and that for his part he was not in any doubt that the claimant had so agreed to change her status despite being unable to recall any part of the detail of that conversation.

[77]On 13 August 2020 the respondent’s director had also focussed with the claimant the cashflow difficulties which the business was experiencing and had advised her that there was a need for her to work reduced hours. He stated that he wished the claimant going forward to carry out all of the work for each funeral in not more than ten hours per funeral and he wished to pay her going forward against an invoice which he instructed her to render in respect of each such funeral.

[78]The claimant agreed to that change in the calculation of her remuneration and to the method of payment for work done by her following the 13 August

[79]On 26 August 2020 the claimant was paid a sum of money by the respondent which, at paragraph 11.7 of the paper apart to form ET3 the respondent offers to prove was paid in an amount of £2,450 before deductions. The claimant did not render any invoice to the respondent in respect of that payment.

[80]The respondent’s director and the claimant agreed, in the course of their discussion of their face-to-face meeting of 13 August 2020 an adjustment of the claimant’s remuneration to a unit rate of £250 gross per funeral.

[81]In the period 24 August 2020 to 1 October 2020 the claimant planned and executed six funerals for the respondent.

[82]On 1 October 2020 the claimant rendered an invoice to the respondent in the sum of £1,500 (6 x £250). The claimant rendered that invoice to the respondent’s director on the day before the date which the claimant asserts was the effective date of termination of her employment by the respondent. The invoice is copied and produced at C-73.

[83]The claimant accepted in evidence, the proposition put to her by the respondent’s representative, that absent another explanation, the respondent’s making partial payment to her, on or about 2 October of a sum of money against an invoice which they had asked she rendered to them, and their doing so without deduction in respect of P.A.Y.E or national insurance contributions, was consistent, with the respondent’s intention to treat the claimant as an independent contractor, at least from the date of the rendering of that invoice.

[84]On its face, the invoice of 1 October 2020 (Invoice 001) bears to be for “the provision of funeral director, mortuary and arrangement services”.

[85]The claimant asserted in evidence that although she had agreed the change in the method of calculation of her remuneration, and while she had noted the respondent’s position that he required her to render invoices against which he would make payment of that remuneration she had not rendered any interim invoices and had rendered the invoice of 1 October 2020 at that time only because the respondent’s director required her to do so and had again stated that he would only make payment of the sums due to her against such an invoice.

[86]In the period following the 13 August 2020 the claimant attended at the respondent’s premises only on occasions when either the respondent’s director or the company accountant was also present. In the period following the 13 August 2020 the claimant retained unrestricted access to her work email.

[87]Following the meeting of 13 August 2020 the respondent’s director instructed the company accountant to prepare a P45 in respect of the claimant. That document, which the claimant asserted in evidence was never issued to her, is produced at R56.

[88]On 7 September 2020 HM Revenue and Customs sent to the respondent an “Notice to Employer of Employee’s Tax Code” “Or Amended Code and Previous Pay and Tax”, in respect of the claimant.

[89]The tax code, which the notice instructed the respondent to use for the tax year to 5 April 2021, was “SOT Week 1/Month 1”. On its face the notice of tax code bears to be “PAY AS YOU EARN HM REVENUE AND CUSTOMS BX91A5”.

[90]The HMRC website confirms that the letters “SOT” mean “from all income – there is no personal allowance and may be used when an employee’s Personal Allowance has been used up.”

[91]The HMRC website further states “Changes during the tax year – usually someone’s tax code changes if their tax free income (personal allowance goes up or down, for example they start or stop receiving a tax code benefit like a company car.”

[92]The issuing by HMRC to the respondent of the “Notice To Employer Of Employee’s Tax Code (Or Amended Code) and Previous Pay and Tax”, which is copied and produced at R-60, does not connote or otherwise give rise to a presumption that the claimant’s employment status had changed.

[93]Paragraph 36 In April of 2021 HMRC wrote to the claimant advising that they had set up a self-assessment record for her “because she had contacted them to register for self-assessment or that her circumstances mean that she needed to complete her tax return.” The circumstances which are referred to in the correspondence relate to the setting up by the claimant of a new business, after the asserted end date of her employment with the respondent, that is to say after 2 October 2020. The correspondence from HMRC does not relate to the claimant’s employment by or alleged provision of services to the respondent.

[94]On or about 1 October 2020 the claimant handed an invoice dated 1 October 2020 to the respondent seeking payment in respect of six funerals at the itemised rate of £250 per funeral, in a total amount of £1,500.

[95]The Invoice No. 001 dated 1 October 2020, that is the day before the asserted effective date of termination of the claimant’s employment, is copied and produced at C-73 and bears on it’s face to seek payment “for the provision of funeral director, mortuary and arrangement services”.

[96]The Invoice No. 001 and dated 1 October 2020, was the first and only such invoice rendered by the claimant to the respondent.

[97]The respondent’s director advised the claimant of the terms in which the invoice was to be laid out. The respondent’s director told the claimant that he would only make payment to her in respect of work done in the period 24 August to 1 October against such an invoice.

[98]The claimant whose wages in her consideration were in arrears at that time, rendered the invoice in that form in order to secure what she believed would be the payment of her wages due and resting owing to her.

[99]In the period during which it is agreed the claimant was an employee of the respondent and in the period after the date of the alleged change in status, the claimant took no holiday. She did so because after her former colleague Ms Smith left the respondent’s employment she, the claimant, was the only “funeral director”, that is to say the only person experienced in the arrangement and conduct of funerals working in the respondent’s business.

[100]The respondent’s director did not have personal experience which would, at that time have allowed him to discharge all the duties required to deliver funeral services, absent the claimant.

[101]The claimant’s understanding was that while she was entitled to take holiday she would have to request particular dates and have them approved by the respondent’s director before they were taken.

[102]On 1 October 2020 the claimant asked the respondent’s director to agree to her taking a day’s holiday on 2 October. Restricted findings relating to the circumstances of the termination of the relationship on 2 October 2020

[103]The claimant denied in evidence that she had resigned on 2 October 2020.

[104]Under reference to her letter of resignation from employment with her previous employer, Dignity Caring Funeral Services, which is copied and produced at C-116, she stated that had she resigned from the respondent’s employment she would have done so in the same way, by writing a formal letter of resignation.

[105]The claimant stated in evidence that having provided the respondent’s director with an invoice in terms which he had requested and specified, on 1 October 2020, the respondent’s director contacted her and asked him to meet with him at a garage so that he could pay her.

[106]The rendered invoice was in the sum of £1,500. The respondent’s director gave the claimant only £1,000 and, when she stated that it was not the correct amount, he said to her that he would not be giving her the balance of £500 because she owed him that money and he was making a deduction.

[107]When the claimant asked the respondent’s director why he was making that deduction he stated “That’s all I’m offering you we’ve got many issues. As far as I’m concerned that’s all your getting. Your not getting any more……..Your a woman. There is nothing you can do about it.”

[108]The claimant further asserted in evidence that when she protested again about the under payment and the explanation given, the respondent’s director said to her “You can consider that the fucking door is closed” and that he then drove off.

[109]The claimant considered that in so speaking to her on 2 October 2020, the respondent’s director Mr McKenzie had dismissed her in terms of section 95(1)(a) of the Employment Rights Act 1996, which failing in terms of 95(1)(c) of the Act.

[110]“Both in the period prior to the date of alleged change in status during which it is a matter of concession by the respondent and agreement between the parties binding upon the Tribunal for the purposes of hearing that the claimant worked for the respondent under and in terms of a contract of service (a contract of employment) in terms of section 230(1) of the ERA, and in the period after the alleged date of change in status that is the period 13 August 2020 to 2 October 2020:(a) There existed between the parties an agreement to provide the claimant’s own work and skill in the performance of service for the respondent (“personal service”), in return for a wage or remuneration,

(b) In the performance of that service the respondent had and exercised a sufficient degree of control over the claimant (“control”).

(c) None of the factors which came into existence in the period following the 13 August 2020 which had not existed in the period prior to 13 August 2020, and without prejudice to the generality, including in particular; (i) the respondent’s unilateral change in it’s treatment of the claimant for PAYE and national insurance purposes, (ii) the agreement between the parties of a change in the methodology by which the claimant’s remuneration was to be calculated (an agreed rate per funeral), (iii) the respondent’s direction that the claimant render an invoice in respect of duties performed by her in a form prescribed by the respondent and/or (iv) the respondents insistence that it would only make payment to the claimant of sums due to her by way of remuneration against the submission of such an invoice were in the particular circumstances established in evidence a fundamentally inconsistent with the subsistence of the contract of employment in the period 13 August to 2 October 2020.” The Applicable Law and Discussion

[111]The primary statutory definition of employment under a contracted service, more commonly referred to in modern parlance as a contract of employment, is found in section 230 of the Employment Rights Act 1996 (“the ERA”) where section 230(1) provides as follows:- “(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………”

[112]The above definition has been extensively explored and construed through case law, and in addition to the terms of the statutory definition, it is necessary to consider whether the key factors identified in case law are present. The “irreducible minimum, absent which a contract of employment cannot exist, are:-• personal service,

• control, and,

• mutuality of obligation.

[113]In addition, all other factors which define the relationship must be consistent, or perhaps more accurately, must not be fundamentally inconsistent, in the circumstances, with there being a contract of employment; Determining the terms of the contract

[114]In addition to considering various aspects of the working relationship that might indicate whether an individual is more likely to be an employee, a worker or, an independent contractor, it is necessary to look at the contract as a whole to determine the weight to be placed on the agreed terms written or otherwise In so doing the Tribunal should focus on whether the express contractual provisions, written or otherwise, reflect the actual legal obligations of the parties at the material times.

[115]In considering identified expressed terms, the relative bargaining power of the parties is a relevant factor in deciding whether a term, in truth represented what was agreed; or, whether the existence of an expressed term is to be regarded as giving rise, in the particular circumstances to an inference which indicates for or against the existence of the contract of employment see Autoclenz Limited v. Belcher & Others

[2011] IRLR 820

(SC) where the supreme court expressly approved the comments of Aikens LJ in the Court of Appeal viz;- “Frequently organisations which are offering work or requiring services to be provided by individuals are in a position to dictate the written terms which the other party has to accept. In practice, in this area of law, it may be more common for a court or tribunal to have to investigate allegations that there is a written contract.” [or an express oral term] “does not represent the actual terms agreed and the court or tribunal must be realistic and worldly wise when it does so.”

[116]Lord Clarke in the Supreme Court expressly approved of this “purposive approach”.

[117]In the instant case there is no written contract between the parties. Rather, the starting point is a contract, constituted orally, in which parties expressly agreed that their respective status was that of employer and employee that being an expressed term which parties were further agreed, was binding upon the Tribunal for the purposes of the hearing, as equivocally determinative of the claimant’s status from the commencement of her employment up to and including 13 August 2020. The multiple test

[118]The issue of whether a contract of employment existed between the parties in the period from the commencement of the claimant’s “employment”, whether that be from the date contended for by the claimant or the date contended for by the respondent, up to and including the 13 August 2020 was not a live issue in dispute between the parties for determination by the Tribunal. It was a matter of agreement between the parties, binding upon the Tribunal for the purposes of the hearing, that a contract of employment did exist and, as a matter of fact, did regulate the parties’ relationship implicit in and in that period. That is a matter which the Tribunal has found established in fact. In consequence of that finding it follows, of necessity, that in that period the irreducible minima of:-• personal service provided by the claimant;

• sufficient control by the respondent and

• mutuality of obligation all were in existance.

[119]The starting point in the instant case established in fact as binding upon the Tribunal the existence and mutual performance of parties’ duties under and in terms of a contract of employment in the period up to and including the 13 December 2020.

[120]The onus of proving that there had occurred expressly or impliedly a consensual variation of that position, such as to bring the contract of employment to an end and to substitution for it, a contract for the supply of services, rests with the respondent.

[121]In the instant case, what the respondent offers to prove is an express consensual variation said to have been reached in the course of verbal communings, between the respondent’s director Mr McKenzie and the claimant Mrs Graham, on 13 August 2020. That is the case which the respondent offers to prove and it is upon the discharge or the failure to discharge it’s onus of proof in that regard that the preliminary issue of employment status in the period 13 August to 2 October 2020 falls to be determined, rather than upon a consideration, from first principles as it were, of what are broadly recognised as a number of relevant factors known commonly as the “multiple” or mixed test – Ready Mixed Concrete (South East) Limited v. The Minister of Pensions and National Insurance

[1968] 2QB497

[122]That case determined that the key tests for the existence of a contract of service were that:-• An Agreement exists to provide the servant’s (the employees) own work or skill in the performance of service for the master (the employer) (“personal service”) in return for a wage or remuneration;

• In the performance of that service, the master (the employer) has a sufficient degree of control over the servant (employee) (“control”);

• The other provisions are consistent with a contract of service (are not in the circumstances, fundamentally inconsistent with a contract of service) (“other factors”).

[123]In the circumstances of the instant case and, notwithstanding the agreed starting point and the onus upon the respondent to prove a case of express consensual variation, set out above, it is potentially helpful to consider whether the mixed test could be seen to operate in the instant circumstances such as to preclude the continued existence of the already established contract of employment, in the period 13 August to 2 October 2020.

[124]As is reflected in the Tribunal’s findings in fact, it was satisfied on the evidence, that the irreducible minima of personal service, sufficient control, and mutuality of obligation were in fact present both in the period prior to and in the period following the asserted date of change of status and further that the other factors which, all other things being equal, might normally be seen to indicate the existence of a contract for the provision of services rather than a contract of employment, namely the respondent’s unilateral change in it’s treatment of the claimant for PAYE purposes and the issuing by the claimant of an invoice in a form directed by the respondent and the part payment by the respondent under against that invoice on one occasion were not, in the particular circumstances established in evidence, fundamentally inconsistent with the subsistence of the contract of employment in the period following 13 August and up to and including its determination on 2 October 2020.

[125]The residual issue before the Tribunal for determination at open preliminary hearing was whether;-(a) In the period 13 August to 2 October 2020 the claimant continued to be an employee of the respondent in terms of section 230(1) of the Employment Rights Act 1996 (“the ERA”); or alternatively;

(b) Whether there had occurred an acceptilation of the claimant’s contract of employment by means of agreement between the parties in terms of which the claimant’s agreed to termination of her contract of employment and further to the provision of services to the respondent, beyond 13 August 2020 as a self-employed independent contractor.

[126]There was also focused before the Tribunal, and to the extent that the same was determinable at this juncture in proceedings, the subsidiary preliminary issue of whether the Tribunal had jurisdiction to consider the claimant’s complaints, by reason of asserted time-bar, let it be assumed that it was established that a change in employment status had occurred as at 13 August

[127]Although there existed, after the alleged date of change of employment status (13 August 2020), a number of factors which in other circumstances might indicate a relationship in law of customer and independent contractor, as opposed to employer and employee, all of those factors, with the exception of the change in the basis of calculation of remuneration and the making of payment on the alleged effective date of termination against an invoice rendered on the preceding day, all of those factors were applied equally by and between the parties during the period when it was a matter of concession by the respondent, and of agreement between the parties bounding upon the Tribunal for the purposes of the Open Preliminary Hearing, that the claimant was an employee of the respondent within the meaning of section 230(1) of the Employment Rights Act 1996.

[128]This is not a case therefore in which the Tribunal is asked to determine in the absence of any written agreement whether the facts which it has found established on the evidence presented are sufficient constitute as between the parties, the relationship of employer and employee in terms of section 230(1) of the ERA.

[129]Rather, the agreed starting position, binding upon the Tribunal for the purposes of the hearing, is that in the period prior to and as at the 13 August 2020 the claimant was an employee of the respondent and the respondent was the employer of the claimant in terms of section 230(1) of the 1996 Act; the same in terms of parties’ mutual assertions being unequivocally the position notwithstanding the existence, during that period of unequivocal employment of, a number of factors which absent that mutually asserted and affirmed contract might, in other circumstances, be indicative of the existence of a contract for the supply of services.

[130]The parties already being in a section 230(1) ERA relationship of employer and employee as at 13 August 2020, which the Tribunal has found in fact the onus or proof (burden) sits with the respondent to prove, on the balance of probabilities and on the preponderance of the evidence that there occurred between the parties on the 13 August 2020 a consensual variation of the terms of their relationship being an agreed termination of the contract of employment and the substitution therefore, going forward, of a contract for the supply of services.

[131]As already set out above the majority of factors which the Tribunal has found, on the evidence presented, to be established in fact are, in the particular circumstances of this case neutral and, standing their existence during the period of undisputed subsistence of contract of employment, do not indicate nor give rise by reason of their continuing existence after the alleged date, to any presumption of the occurrence of any such consensual variation.

[132]Separately and in any event, what the respondent offers to prove in terms of his written pleading and what was asserted by the respondent’s director in evidence, is an express agreement (rather than implied) concluded between the parties verbally on 13 August to terminate the contract of employment and substitute in its place going forward a contract for the supply of services.

[133]The claimant accepted in evidence that she had agreed to a change to the basis of calculation of her remuneration to that of £250 per funeral. That agreement of itself however is not incompatible with the subsistence of the contract of employment particularly where in the circumstances of the sporadic nature of the incoming business and the impact of the same upon cash flow and profitability, it represented a more reliable and sustainable approach to remuneration.

[134]While it is the case and as was accepted by the claimant in evidence that the payment of that remuneration gross and without deduction of PAYE and national insurance contribution against a rendered invoice for the provision of “services” will normally be consistent with the existence of a contract for the supply of services, absent another explanation, the claimant provided such an explanation in evidence which, as reflected in its findings in fact the Tribunal accepted as both reliable and credible.

[135]Similarly, the respondent’s director’s instruction to the company account to prepare a P45 for the claimant in August 2020, while indicative of the respondent’s desire and intention to treat the claimant as a self-employed contractor, is not, of itself, conclusive of the issue and, of itself, relating as it does to the actions of only one party, is insufficient to establish an express agreement between the parties to terminate the contract of employment which is what the respondent offers to prove.

[136]I find, on the evidence presented that the respondent has failed to discharge its onus of proof such as to establish, on the balance of probabilities and on the preponderance of the evidence, that by verbal communings on 13 August 2020 the parties expressly agreed to terminate the pre-existing contract of employment and to substitute in its place a contract for the supply of services.

[137]Accordingly I determine the primary issue in the affirmative and hold that in the period 13 August up to and including 2 October 2020 (the latter being the asserted effective date of termination), the claimant continued to be an employee of the respondent in terms of section 230(1) of the Employment Rights Act 1996. The subsiduary issue of jurisdiction (time-bar)

[138]I further hold that the effective date of termination of the claimant’s employment, whether by resignation or otherwise, was the 2 October 2020

[139]The claimant first presented her initiating application ET1 on 29 December 2020 having first engaged with ACAS on the 26 October 2020 with the date of issue by ACAS of the early conciliation certificate being 30 November

[140]The effective date of termination of the claimant’s employment being 2 October 2020 the statutory primary period, as extended by the operation of early conciliation, expired on or about the 6 February 2021. It follows, therefore, that the claimant’s complaints of unfair dismissal (including constructive dismissal) of notice pay, holiday pay and of arrears of pay, either by reason of section 13 ERA unauthorised deduction which failing by reason of breach of contract, arising on termination of employment and subject to the claimant being able to prove entitlement to the payments at first instance), are timeously presented and are claims which the Tribunal has jurisdiction to consider.

[141]I am satisfied that the initiating application ET1 as first presented contained express notice of a complaint of harassment related to sex in terms of section 26 of the Equality Act 2010 and accordingly, that such a complaint in so far as founded upon acts or omissions of the respondent said to have occurred after 30 September 2020 is timeously presented and is a complaint which the Tribunal has jurisdiction to consider. 142. [Notwithstanding the addition by the claimant of further specification of the same by formal vehicle of amendment]

[143]The issue of whether the earlier incidents of alleged harassment of a sexual nature which the claimant gives notice of seeking to found upon were instances of a single act of continuing discrimination the last of which occurred on 2 October and thus were timeously presented through the operation of section 123(3)(a) of the Equality Act 2010, was not a matter on which either party presented evidence or made submission at the open preliminary hearing and the Tribunal accordingly reserves for determination at a final hearing, on a Proof Before Answer basis, that residual issue of jurisdiction (time-bar). Further procedure

[144]While the Tribunal has determined the issue of employment status in favour of the claimant and in consequence is satisfied subject to the reservation at paragraph 143 above, that it is has jurisdiction to consider the claimant’s claims, the claims remain defended on their merits, notwithstanding the respondent’s lack of legal representation, and following it’s cessation of trading on 18 June 2021.

[145]The onus of proving the merits of her claims, sits, at first instance, with the claimant and includes the onus in respect of proving;(a) the hourly rate of pay and guaranteed hours to which she had contractual entitlement during the currency of her employment;

(b) the sums received by her net of tax and national insurance contribution by way of pay (wages) during the currency of her employment for each relevant pay period and thus;

(c) the amount of any arrears of pay/unauthorised deduction from wages said to be outstanding from or made by the respondent;

(d) the same all being matters in respect of which the Tribunal has made no substantive finding in fact at Open Preliminary Hearing.

[146]The proportionality, in terms of prospects of recovery, of pursuing the claims against a limited liability company which has ceased trading, while not a matter for consideration by the Tribunal per se, may be a matter upon which the claimant may wish time to reflect and take advice.

[147]In those circumstances the Tribunal makes no direction as to further procedure at this juncture in proceedings beyond directing that the claimant’s representative write to the Tribunal and to the respondent’s representative (director), within 42 days of the date upon which a copy of this Judgment is for further procedure and, in particular, whether the claimant seeks to have the case listed for a final hearing on its merits. Date of Judgement 16 November 2021