Ms L Simanaviciene v Providing Care Ltd and Moving Up Care Ltd: 6012163/2024

EMPLOYMENT TRIBUNALS

Case No 6012163/2024

Between

Ms L SimanavicieneClaimant

Providing Care Ltd and Moving Up Care LtdRespondent

Before

Employment Judge Barker

Ms Hickin (instructed by counsel) for claimant

Mr Macaulay Ferguson (instructed by solicitor) for respondent

Date 5 November 2025

JUDGMENT

[1]The claimant was a worker of the first respondent in accordance with s230(3)(b) Employment Rights Act 1996. She was not employed by the first respondent.

[2]The claimant was neither an employee nor a worker of the second respondent. She therefore has no remedy against the second respondent, and they are hereby dismissed from the proceedings.

[3]Her claim of automatic unfair dismissal (s103A Employment Rights Act 1996) cannot proceed, as she was not an employee. It is hereby dismissed.

[4]Her claim of detriment by reason of having made protected disclosures (s47B Employment Rights Act 1996) continues against the first respondent only.

REASONS

Preliminary matters and issues for the Tribunal to decide

[1]The claimant was engaged via a contract with the first respondent from 15 November 2023 until 16 May 2024, as an “Outreach Support Worker”. The dispute between the parties includes complaints about the claimant’s dismissal. She alleges that her dismissal was automatically unfair because of protected disclosures she made; the respondents say her dismissal was due to substantiated allegations against her following an investigation and report by the LADO (“Local Authority Designated Officer”). She also complains of detriments because of having made protected disclosures.

[2]The first respondent is described as a “management company” that provides staff to the second respondent. The second respondent is an OFSTED and statutory regulated company that provides support to care leavers aged 16-18 years old, via contracts with Local Authorities. These contracts usually take the form of care packages for each young person and are therefore highly variable, as they are tailored to the individual needs of each young person. The performance of duties under those contracts is heavily regulated because of the vulnerable status of the young people.

[3]The claimant’s case is that although she signed a zero-hours casual worker contract with the first respondent, she was in fact employed as an employee by the second respondent. The claimant’s answers in cross-examination suggested that she considered she was possibly employed by both respondents. This was not the case advanced by her counsel, which was that she was employed by the second respondent only. The respondent’s case is that she was engaged as a worker by the first respondent, as per the contractual documentation.

[4]There were a number of administrative issues that arose at the start of the hearing to do with the exchange of witness statements and whether certain documents in the bundle needed to be redacted. These issues arose in part because the parties’ solicitors had agreed between themselves to vary the terms of the Tribunal’s case management orders that were made at the previous case management hearing and had produced witness statements and a bundle for the final hearing, as opposed to for this preliminary hearing and for the preliminary issues alone. The parties were reminded that this did not assist the Tribunal and any departures from case management orders were only to be done with the permission of the Tribunal in future.

[5]The respondents’ solicitor applied to have the claimant’s witness statement struck out because the claimant’s witness statement had been served on 12 August and not 7 August. The respondents had served their statements on 7 August, but had not waited for confirmation that the claimant was ready to serve hers that day. The case management orders made in relation to statements were not for simultaneous exchange. Therefore, although the claimant’s statement had been served 5 days after the respondents’, she had not breached an order for simultaneous exchange as none had been made.

[6]The respondents argued that the claimant had been put at a considerable advantage by having had their statements for five more days, and so the statement from her should be struck out. I refused that application; it was not in the interests of justice to deny the claimant the ability to present her evidence to the Tribunal, as the Tribunal had an inquisitorial and factfinding role in determining the issues between the parties and the Tribunal would not have been assisted by not hearing evidence from the claimant. In any event, the respondents had been in possession of the claimant’s statement for almost two months and had the opportunity to challenge her evidence by way of cross-examination, for which they had ample time to prepare.

[7]The respondents’ solicitor also raised that the claimant had disclosed confidential information in the bundle which ought not to have been in the bundle unless redacted. The claimant’s counsel noted that these documents had been disclosed and put in the bundle 5 months earlier and therefore had the respondents wished to redact or anonymise them, there had been ample opportunity to do so before today.

[8]I decided that the documents could remain in the bundle and in the event that it was necessary for the Tribunal to refer to them in evidence or in this judgment, discussion could be had with the parties as to how to put any necessary safeguards in place to protect vulnerable service users. In the end such safeguards have not been necessary, as it has not proven necessary to refer to those documents in this judgment and reasons. The parties are reminded that discussions about redactions and confidentiality in relation to documents for the final hearing should take place before the bundle has been sent to the Tribunal if at all possible.

[9]The Tribunal heard evidence from the claimant, from Mr Lais (who had been the registered service manager for the first respondent) and Ms Hayes who was HR and Recruitment Manager for the first respondent. The respondents told the Tribunal that the second respondent does not engage staff; there is a board of directors for statutory compliance and regulatory purposes but all staff who provide services to the second respondent are engaged by the first respondent.

Findings of Fact

[10]The claimant was told in an email dated 18 September 2023 that she was being made a “conditional offer of employment”. This phrase was repeated several times in the email and again in an attached letter which was from Ms Hayes. For example, the letter from Ms Hayes said ““This is a conditional offer of employment”. She was told that her DBS fee was “refunded once you have completed 3 months employment with us” and the letter also refers to “all our pre-employment checks”.

[11]The claimant does not dispute that she was aware of the terms of the agreement between her and the first respondent dated 15 November 2023, before me in evidence, that is said at clause 1.1 of that agreement “This contract governs your engagement from time to time by the Company as an Outreach Support Worker. This is not an employment contract and does not confer any employment rights on you (other than those to which workers are entitled). In particular, it does not create any obligation on the Company to provide work to you and you will work on a flexible “as required” basis.” The claimant accepted in crossexamination that this contract was a “casual worker” contract, but she disputed that this was how the relationship between her and the respondents operated in practice.

[12]It is the respondents’ case that the use of the words “employed” and “employment” by them in relation to the claimant’s engagement was not intended to confer any legal rights on her and was used in error.

[13]The claimant was clearly told that the terms were for a “zero hours” contract, but in an email from Ms Hayes dated 19 September 2023 she was told “Although it’s a 0 hours contract the hours are pretty guaranteed plus more if you’d like them.” The claimant said that this was a positive feature of the offer, as she told me that she had given up a permanent full-time position to work with the respondents.

[14]There is a dispute between the parties about the extent to which the claimant was able to refuse shifts, and the extent to which the respondent was obliged to provide them.

[15]In practice, I find that there was as much work available to the claimant as she was able to take, because the respondents were always in need of workers such as the claimant. Mr Lais’ evidence was that at times they were “very stretched” for staff. Therefore, the claimant’s evidence on this issue (other than the issue of changing the location of her shifts, which I will deal with separately below) was theoretical, because the claimant told me that she wanted to work full-time and made this clear from the start of her engagement with the respondents. They were very busy and so the evidence before me was that she was always offered work if she made herself available. She therefore had no personal experience, on the evidence before me, of having refused a shift that had been offered to her, and what the consequences might be.

[16]When asked why she believed that she was not able to refuse shifts, her evidence was that she “was sanctioned to a disciplinary” if she refused. She then clarified this later in her oral evidence to say that she had in fact been told informally by another worker called “Darren” that he had been “penalised” for refusing a shift, and that if a shift was refused workers would not get another one for a few weeks, but that in fact this had never happened to her as she had not refused a shift.

[17]The respondent’s evidence was that workers were offered shifts each week for the following week and were able to reject them within a certain window of time, but once they had accepted them (or failed to reject them within the window of time, said to be about 24 hours), they were expected to turn up to work.

[18]It was the evidence of Mr Lais that staff regularly refused shifts, and this was why there was a regular need for emergency cover. His evidence, which I accept, was that the respondents never disciplined anyone for refusing shifts that were offered to them. However, I find that it is made expressly clear in the New Starter General Information Pack that was given to the claimant and others that if you have not rejected a shift when it is offered to you that you were then obliged to work it. I accept that the nature of the work done by outreach support workers with vulnerable young people meant inevitably that once a shift was accepted, there would be adverse consequences for the respondents and the young person if the worker failed to attend, and the respondents were entitled to manage this via their policies and procedures.

[19]I find that the terms of engagement of outreach support workers, as per the general information pack and the worker contract given to the claimant, would appear to be as follows:a. The first respondent provided no work to the claimant. They offered her services to the second respondent who provided shifts to her in advance when required. However, as the second respondent was always in need of staff, the claimant and those in her position were almost always guaranteed to be offered work;

b. Each worker was required to commit for a full week, if they agreed to work that week. This meant five days out of seven, with a maximum of three sleep-in shifts if required. Workers could not specify which shifts they would not work unless booked as annual leave. The respondents’ evidence was that this rule was in place to prevent weekend staff shortages, as staff would have otherwise requested weekends off;

c. The claimant could have refused to work a week’s shift and there would have been no disciplinary penalty on her for doing so. She would simply not have been paid for the period when she was not working;

d. If any days off were required during a working week, they needed to be prebooked as annual leave 6 weeks in advance;

e. No annual leave can be taken between 22 December and 6 January;

f. Neither party was obliged to give the other notice of the ending of the contractual relationship;

g. The first respondent was responsible for dismissing the claimant

h. The second respondent had the regulatory obligations to the local authority, OFSTED etc

i. The claimant was not able to choose the location where shifts were offered to her. Her choice was to accept the shifts in the locations offered to her or not accept the shifts at all. If she declined the shifts, she was not paid.

[20]The respondents were asked why the claimant was disciplined and dismissed if she was a casual worker, given that the second respondent could have not given her any more shifts, and the first respondent could have terminated her engagement with no notice. The answer of Ms Hayes was that they were obliged to do so because of the involvement of the LADO, and for any future reference requests for the claimant, and for their own records, as the matter had involved issues of safeguarding.

[21]I find that the claimant was expected to provide personal service to the respondents. Given the requirement for vetting and DBS checks and the need for a placement to be appropriately staffed by matching personnel to the relevant young person, I accept that the claimant did not have the right to substitute herself for another worker.

[22]Once the claimant had accepted a shift or shifts, I find that the second respondent had control over her work in that she had to abide by its policies and processes, including keeping a daily log of her interactions with young people (service users) and complying with the statutory obligations of the second respondent in relation to the service users in their care.

The Law

[23]In Patel v Specsavers Optical Group Ltd EAT 0286/18, the EAT held that ‘it is a wellestablished principle of employment law that in general terms one employee cannot simultaneously have two employers’.

[24]A worker is defined by S.230(3) Employment Rights Act 1996 as an individual who has entered into or works under:• a contract of employment (defined as a ‘contract of service or apprenticeship’) — S.230(3)(a), or

• any other contract, whether express or implied, and (if 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 — S.230(3)(b).

[25]To come within the scope of s230(3)(b) as a worker, a claimant must show:• the existence of a contract;

• that he or she undertakes to personally perform work or services for another party, and has only a limited right to subcontract

• that the other party is not a client or customer of a profession or business undertaking carried on by the individual. It does not cover those who are genuinely carrying out a business activity on their own account.

[26]Relevant issues to determining worker status were said by the Supreme Court in Uber BV and others v Aslam and others

[2021] UKSC 5

to include:• Questions of the levels of pay and who fixed these levels;

• Who drafted and imposed the contractual terms;

• Whether the individuals were obliged to provide services and was the company obliged to offer work;

• Could suitably qualified substitutes be provided to carry out the work on their behalf?

[27]The cases of Uber BV and others v Aslam and others

[2021] UKSC 5

and Autoclenz v Belcher

[2012] UKSC 41

confirmed that Tribunals can look behind the contractual documentation to the reality of the relationship between the parties. This was to prevent, amongst other issues, an attempt to use the contracts to deny the true status of the parties. Uber [paragraphs 85 and 86] noted that ‘the written terms should not be ignored, and the conduct of the parties and any other evidence may show that the written terms were understood and agreed to be a record…of the parties rights and obligations towards each other.’

[28]The issue of personal service and whether an individual is able to send a substitute has been found to be a key issue in determining worker (as opposed to self-employed) status. In Cotswold Developments Construction Ltd v Williams

[2006] IRLR 181

, EAT where there was insufficient mutuality of obligation to indicate a contract of employment, the issue was then whether the claimant was obliged to do a minimum, or reasonable, amount of work personally to qualify as a “worker”.

[29]An employee is defined in s230 Employment Rights Act 1996 as:(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.

[30]As a result of the development of case law over time (Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance 1968 2 QB 497, QBD, Carmichael and anor v National Power plc

1999 ICR 1226

, HL, Express and Echo Publications Ltd v Tanton

1999 ICR 693

, CA; and Hewlett Packard Ltd v O’Murphy

2002 IRLR 4

, EAT) it is clear that four factors must be present for a contract of employment to exist. There must be:• a contract (between the worker and the alleged employer)

• an obligation on the worker to provide work personally

• mutuality of obligation, and

• an element of control over the work by the employer

[31]Hafal Ltd v Lane-Angell EAT 0107/17. In this case, it was held that no umbrella contract existed between the claimant and respondent to cover the claimant’s work as a bank worker. The claimant needed only to submit availability if she was so available, and a rota was prepared on the basis of this. The EAT held that an expectation that an individual will provide work is not the same as an obligation to do so.

[32]James v Greenwich London Borough Council

2008 ICR 545

, CA), the Court of Appeal held that a tribunal will be entitled to imply an employment contract between an agency worker and an end user only where it is necessary to do so to give business reality to the situation. In the Court’s view, there will be no such necessity where agency arrangements are genuine and accurately represent the relationship between the parties. Application of the law to the facts found

[33]On the facts of the case, I find that the claimant was a “worker” engaged via a contract with the first respondent. Although the elements of control and personal service were present in her relationship with the first respondent as found above, the element of mutuality of obligation was not. As one of the requirements of employee status was missing, (as per Ready Mixed Concrete) she was not an employee of the first respondent.

[34]As was held in Hafal Ltd v Lane-Angell EAT 0107/17 an expectation that an individual will be available to work is not the same as an obligation that they be so. The second respondent was busy and expected that the claimant would offer herself as available to work. This was reinforced by the claimant expressing her wish to work full-time for the respondents, having left a full-time job to do so. The claimant knew that the respondent was very busy, and expected to be offered work regularly, and she was. The claimant accepted these offers of work regularly and only took issue (on the evidence before me) with the offers insofar as the location of that work did not always suit her, which she was frustrated that she had no control over. She asked to be located elsewhere but was told that it was not possible. She took issue with this explanation. She submits to this hearing that the fact that she could not specify where she worked meant that the respondents had control over her such that she was an employee and could not be a worker.

[35]However, the issue of location is relevant in a different way to the question of her employment status than that set out by the claimant. There was no work offered to the claimant in the location she preferred, because there was no obligation on the respondents to offer her work there. There was work offered in a location that did not suit her, but the respondents did not take her complaint about this seriously, because the respondent did not have to offer her work in her preferred location and the claimant was under no obligation to accept work in a location that did not suit her.

[36]Also, I accept that there was no evidence (other than the claimant’s inconsistent account of the same) that there was any obligation, punishable via a sanction of some sort, to make herself available to work if she did not want to do so. Of course, the loss of pay may have felt like a sanction, but it was part of the terms of her engagement with the respondents.

[37]There was, on the evidence before me, insufficient evidence to show mutuality of obligation on the claimant and the respondents, and therefore the terms of the claimant’s engagement were a worker contract with the first respondent and not a contract of employment. This is also consistent with the terms of the claimant’s engagement, as recorded in the agreement of 15 November 2023.

[38]I accept that the fact that several of the policy documents and the initial offer refer to “employment” is insufficient to mean that an employment relationship exists with either respondent in these circumstances. The intention of the respondents was that no such employment relationship existed, as was made clear in the terms of engagement dated 15 November 2023. The claimant understood this to be the case. The use of inaccurate terminology is regrettable but makes no difference to the nature of the parties’ relationships.

[39]As per James v Greenwich London Borough Council, there is no need to imply an employment contract between the claimant and the second respondent. Although the claimant had to abide by the statutory obligations placed on the second respondent’s workers in supporting its service users, this did not extend so far as to mean that the reality of the situation was one of an employment relationship with the second respondent. The terms of her engagement were with the first respondent. The second respondent does not employ any staff itself but obtains workers from the first respondent on an as required basis. It is not necessary to go behind this arrangement to give business reality to the situation.

[40]The claimant’s evidence was that the first respondent and the second respondent were effectively the same organisation, and that all the same people worked for both companies. Given that the first respondent is the agency providing workers to the second respondent, this is to be expected. It does not alter the contractual relationship between the claimant and the respondents, which is that she was engaged by the first respondent and then provided as an agency worker to the second respondent, which was the end user. Final hearing and further case management orders

[41]As a result of the findings on employment status, the claims cannot continue against the second respondent, and it is hereby dismissed from the proceedings. For the same reason, the claim of unfair dismissal also cannot continue, as the claimant had no status as an employee of the first respondent.

[42]The claim that continues to the final hearing is one of whistleblowing detriment against the first respondent only. The final hearing is listed for 26-29 May 2026. Case management orders will be sent to the parties separately, to assist them with preparation for that final hearing. Approved by