K Kuznetsov v V Gazibar and Victoria’s Method Ltd: 6017392/2024
EMPLOYMENT TRIBUNALS
Case No 6017392/2024
Between
Kirill KuznetsovClaimantVictoria Gazibar (1) Victoria’s Method Ltd (2) RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge MurdinMr Betchley (instructed by Counsel) for claimantMr Wilson (instructed by Counsel) for respondentDate 26 August 2025
JUDGMENT
[1]At all material times, the Claimant was neither an employee for the purposes of s230(1) of the Employment Rights Act 1996, nor a worker for the purposes of s230(3) of the Employment Rights Act 1996.[2]Consequently, the claims for arrears of pay, unpaid wages and commission do not enjoy reasonable prospects of success for the purposes of Rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024.[3]Given they are the only remaining heads of claim being brought by the Claimant, the claim is hereby struck out. PHCM Order 1 of 14 September 2023
REASONS
[4]The Claimant claims that he was engaged by the Respondents as a Managing Partner/Business Manager from 1st September 2022. He says that engagement was terminated on 15th August 2024. Early conciliation started on 23rd August 2024 and ended on 4th October 2024. The claim form was presented on 4th November 2024.[5]The Claim is for arrears of pay, unpaid wages and commission against both the 1st Respondent, who was the sole director of the 2nd Respondent, and the 2nd Respondent itself, which operated as a medical and beauty salon.[6]The matter was considered by EJ Klimov on 6th January 2025, when the Respondents’ application to strike out the claim was refused on paper. EJ Klimov gave the following reasons: “1) The claimant contends that it was in an employment relationship with the first or the second respondent. It appears from the claimant's ET1 that the identity of the claimant's employer is unclear. Therefore, until this issue is determined by the Tribunal it is not appropriate to strike out the claim against the first respondent. 2) The respondents' Grounds of Resistance does not disclose valid reasons to strike out the claim against both respondents on other grounds under rule 37(1). The parties must cooperate to prepare the claim for the final hearing.”[7]On 9th January 2025, EJ Nicolle directed that the parties be written to, and informed that the full merits hearing listed for 14th November 2025 be converted to a 2-hours CVP case management hearing.[8]The matter was then considered on 4th March 2025 by EJ Lewis who conducted a public preliminary hearing to determine whether the claimant was a worker PHCM Order 2 of 14 September 2023 and/or employee employed by the first or second respondent, and if necessary, whether to strike out any of the claims [or parts thereof] as having no reasonable prospect of success.[9]Unfortunately, that hearing was given insufficient time, and consequently had to be adjourned. EJ Lewis did however order that the Claimant provide some further information as set out at paragraph 15 of the Order.[10]Following that Order, the Claimant provided further information, which included withdrawing his previous claim for an unpaid loan.[11]The matter was then relisted for this 2-day preliminary hearing to determine the following:(i) whether the claimant was a worker or employee employed by the first or second respondent, and if necessary,(ii) whether to strike out any of the claims [or parts thereof] as having no reasonable prospect of success. The parties’ positions[12]I have heard evidence from both parties and read the documents within the extensive bundle. Their respective positions can be summarised as follows:[13]The Claimant, within his Claim Form, witness statement and accompanying documentation alleges that he was employed as a Managing Partner/Business Manager with his work involving the following: client relations, social media, business marketing, business strategy, administration work, business maintenance, and business sales.[14]He claims that he asked on several occasions for a written contract but was never provided with one. He says that it was agreed that he would be paid a managerial wage, although the rate was never agreed, and it was further agreed that the business would pay for his monthly travel card and a gym membership. PHCM Order 3 of 14 September 2023[15]Mr Kuznetov further denies being in a relationship with Ms Gazibar, and says that he was a permanent, full-time employee. He relies on a verbal contract, which he says was formed in mid-August 2022 with the discussions taking place over a period of time.[16]Within the Grounds of Resistance dated 12th September 2024, the Respondents aver that the Claimant was never employed by either Respondent. Rather, it is alleged that he was in a relationship with the 1st Respondent. They rely on the total lack of any supporting documentation, averring that the Claimant simply helped out in the 1st Respondent’s business in his role as boyfriend. They deny ever agreeing to pay the Claimant any wages and/or commission.
The Evidence
[17]In addition to the written evidence, I heard oral evidence from the following witnesses:(i) Mr Kuznetsov, the Claimant;(ii) Mr Anton Barker;(iii) Mr James Eytle;(iv) Ms Victoria Gazibar, the 1st Respondent;(v) Ms Alina Gazibar, the 1st Respondent’s daughter. Given the length of the statements, the volume of the documentary evidence, and the number of witnesses, I do not propose to rehearse their evidence. The following is no more than a brief summary, together with my observations.[18]Mr Kuznetsov gave evidence in accordance with his statement. He maintained that he was a permanent employee of both Respondents, and was not involved in a relationship with Ms Gazibar, although they had had sex on 3 occasions.[19]He was unable to provide details of the conversations that he said occurred in relation to the formation of the contract of employment, simply saying they were held in person. He was also unable to adequately explain the delay in asking for PHCM Order 4 of 14 September 2023 payment and agreed that the documentation shows that there were no complaints in respect of a lack of pay prior to 31st July 2024. He said that accurately reflected the position.[20]When asked about that delay, he blamed his lawyers, and to my mind, was unable to credibly explain that lack of complaint. Furthermore, when questioned as to how he was managing without any income, he was evasive, simply relying on the fact that he continued to live at home, without being able to provide any further details as to how he subsisted from month-to-month.[21]Although he repeated the general outline of his professional duties for the 1st and 2nd Respondents, he was unable to specify the day-to-day tasks that were involved.[22]The evidence of both Mr Anton Barker and Mr James Eytle was of little assistance in reaching my determination on the disputed issues. In respect of the central issues that I have to decide, they were only able to give hearsay evidence, which clearly affects the weight that their evidence should be given.[23]Ms Gazibar gave evidence in accordance with her statement. She was a credible and consistent witness. She averred that the Claimant had no specific tasks, and simply helped out initially as they were in a relationship together. He began by helping with the Ms Gazibar’s English, before gradually assisting in other aspects, such as filming, editing and taking bookings.[24]It was Ms Gazibar’s evidence that the Claimant lived with her, and helped out as any boyfriend would. She accepted giving him money, but added that she was simply supporting him, and denied that money constituted wages.[25]Ms Alina Gazibar confirmed that the Claimant was indeed the boyfriend of her mother and lived with them for some time. Whilst she said that he was not an employee, she conceded that he frequently assisted within the business. PHCM Order 5 of 14 September 2023 Submissions[26]On behalf of the Respondents, it was submitted that I had to determine whether the Claimant was involved in anything that could be classed as work pursuant to an obligation to work. I was helpfully reminded that an obligation to work involved a degree of control and regularity of work.[27]It was further averred that the documentary exchanges between the parties demonstrated an intimacy not ordinarily present in an employer-employee relationship. There is little or no evidence to set out the nature of the Claimant’s tasks and/or professional obligations, and there is no evidence of any control or direction.[28]The Respondents relied upon the existence of other contracts, and the lack of any credible explanation as to why there existed no contract as between the Claimant and Respondents.[29]It was said by the Respondents that the only time that the Claimant complained about being owed money coincided with the end of the relationship.[30]In response, the Claimant submitted that the claims brought by the Claimant only require the status of a worker not an employee. I am entitled to look at the conduct of the parties to imply the existence of a contract, and there is no doubt that the Claimant was undertaking tasks on behalf of the Respondents and was paid for those tasks.[31]It was further said that the existence of any personal relationship is a red herring, and it was clarified that the Claimant was advancing his case on the basis that he was a ‘worker’.[32]In response, it was accepted by the Respondent, that were the Claimant to be found to be a ‘worker’ that would be sufficient for the claims to continue. PHCM Order 6 of 14 September 2023
Consideration
[33]Section 230(1) of the ERA states: “employee means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contact of employment”. A contract of employment is defined at s.230(2) as “a contract of service or apprenticeship, whether express or implied (and if it is express) whether oral or in writing”.[34]A worker is defined in s.230(3) as: ... an individual who has entered into or works under …(a) a contract of employment, or(b) any other contract, whether express or implied (and if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.[35]According to those definitions, all employees are workers, but not all workers are employees (see Stack v Ajar-Tec Ltd [2012] EWCA Civ 543). Therefore, the employee will enjoy all the rights and protections that a worker has, but will have additional rights and protections that the worker does not have.[36]Whilst the distinction between a worker and an employee has been the regular subject of disputes between parties in Employment Tribunals, it is common ground that, in respect of this claim, the Claimant only has to satisfy the test for a worker in order for his claims to continue. However, the Claimant has brought his claim as an employee, and advances his claim on that basis. I will therefore consider firstly, whether Mr Kuznetsov was an employee of either Respondent. Was the Claimant an employee?[37]A number of different tests have been applied by courts and tribunals over the years in order to determine whether an individual is/was an employee. Those tests now form factors to be taken into account and include: PHCM Order 7 of 14 September 2023a. The degree of control exercised by the employer (Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 Q.B. 497).b. Whether mutuality of obligation exists between the parties; namely, whether the employer is obliged to provide work and the individual is obliged to accept it (Carmichael v National Power Plc [1999] 1 W.L.R. 2042);c. Whether the individual is required to perform the contract personally, or whether a right of substitution exists, allowing the individual to send someone else in their place. In Pimlico Plumbers Ltd v Smith [2018] UKSC 29; [2018] 4 All E.R. 641 the Supreme Court concluded that a limited right of substitution was not inconsistent with an obligation of personal performance as, on the facts of that case, personal performance remained the dominant feature of the contract.d. The extent to which the individual is integrated into the employer’s organisation, including the nature and length of their engagement and whether it is permanent or for the duration of a specific task (Lee Ting Sang v Chung Chi-Keung [1990] 2 A.C. 374).e. Whether the individual is in business on their own account (often referred to as the “economic reality” test). The courts will consider whether the individual is free to work for others and how independent they are of the employer’s business (Lee Ting Sang v Chung Chi-Keung).f. Whether the individual shares the profit or risks loss, and whether the rates of pay are set by the employer or by the individual.g. Whether tax and national insurance is deducted by the employer or whether the individual is paid gross and expected to account for their own tax. PHCM Order 8 of 14 September 2023h. How the parties view the relationship - although that factor is not decisive.[38]Factors (a) to (c) above have been referred to as the “irreducible minimum of obligation” for an employment contract to exist (Nethermere (St Neots) Ltd v Gardiner [1984] I.C.R. 612).[39]A number of leading and helpful decisions are also of guidance: In Philip v Working Partners Ltd [2024] EAT 43 an employment judge had not erred in dismissing a discrimination claim on the basis that the claimant did not have the requisite worker or employee status under the Employment Rights Act 1996 s.230(3)(b) or the Equality Act 2010 s.83(2)(a). The weight to be accorded to various factors in assessing the claimant’s status was pre-eminently a matter for the judge as the fact-finder, and on a fair reading of his decision as a whole, it was clear that he had correctly identified and applied the relevant law.[40]In Al Taweel v Stichting Female Journalists Network [2023] EAT 159 an employment judge had erred in determining the employment status of a worker who had set up her own company as a vehicle through which she provided her services to the respondent. The judge had decided that the worker was an employee of her own company and therefore could not also be the respondent’s employee. However, she had made that decision without objectively analysing the position between the worker and her company in accordance with the criteria in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 Q.B. 497, [1967] 12 WLUK 33 and the realities on the ground.[41]In Anglian Windows Ltd (t/a Anglian Home Improvements) v Webb [2023] EAT 138 in an unfair dismissal case, an employment tribunal had erred in finding that the claimant was not precluded from having employee status by the fact that he provided and received payment for his services to the respondent through a genuine partnership agreement. The case was on all fours with Firthglow Ltd (t/a Protectacoat) v Descombes [2004] 1 WLUK 270, which had decided that PHCM Order 9 of 14 September 2023 such a situation could not give rise to individual contracts of employment between each partner and the respondent.[42]In MXX v A Secondary School [2023] EWCA Civ 996 where a 13-year-old schoolgirl had been sexually assaulted by a former pupil who had undertaken a work experience placement (WEP) at her school, the school was not vicariously liable for the assaults and batteries inflicted on her because they had taken place after the WEP was concluded and there was an insufficiently close connection between the wrongful conduct and the tortfeasor’s relationship with the school. However, contrary to the trial judge’s findings, the claimant succeeded in proving that grooming behaviour had taken place during the WEP, that the conduct and mental elements of the tort of intentional infliction of injury were made out, and that the relationship between the school and the tortfeasor was akin to employment.[43]It remains clear however, that the question of status where the enquiry goes beyond simply the meaning of contractual terms, remains one of fact.[44]In this claim, it is my judgment that the Claimant was not an employee of either Respondent. There exists very little evidence of any control exercised by the 1st Respondent, and certainly the control that was operated was insufficient to meet the requirements of the test in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 Q.B. 497.[45]Furthermore, there was no evidence at all that either party was obliged to either provide or to accept work. In those circumstances, there clearly was no mutuality of obligation.[46]In addition, there was a wholesale lack of any evidence that the Claimant was under an obligation to perform any of the services personally.[47]Whilst the Claimant expresses his claim to be that of an employee, he has brought no evidence that might seek to satisfy the above criteria, particularly in respect of mutuality of obligation and/or personal performance. Given the facts PHCM Order 10 of 14 September 2023 in this case, and the nature of the business operated by the 1st Respondent, those factors were always likely to be key determinants of this issue.[48]Furthermore, and where there was a conflict as between the witnesses, I prefer the evidence of Ms Victoria Gazibar and Ms Alina Gazibar. Both were credible and consistent, and Ms Victoria Gazibar in particular, made concessions which did not assist her case. In contrast, Mr Kuznetsov was evasive and gave partial, incredible explanations when challenged. In particular, he was unable to explain what his precise daily and/or weekly duties entailed, how he had gone for so long without any pay and why he did not complain about the situation prior to 31st July 2024.[49]In addition, I agree with the Respondents that the documentary exchanges between the parties demonstrate an intimacy not ordinarily present in an employer-employee relationship, and to the extent that it is relevant, I find that the Claimant and 1st Respondent were indeed in a relationship as described by Ms Victoria Gazibar.[50]That finding is certainly relevant in respect of the parties’ credibility, and I reject Mr Kuznetsov’s account of the parties’ relationship. Furthermore, and to my mind, the nature of that relationship is also of relevance in contextualising their working relationship. Whilst there is no evidence of any employer-employee relationship, there is ample evidence contained within the contemporary documentation of a personal relationship as described by Ms Victoria Gazibar.[51]Consequently, and for a combination of all of the above reasons, I reach the conclusion that, at no material time, was the Claimant an employee of either Respondent. Was the Claimant a worker?[52]Many of the factors identified above are also applied when determining whether the Claimant is a worker, and therefore potentially entitled to the remedies sought. In particular: PHCM Order 11 of 14 September 2023(i) It is clear from the definition in s.230(3) ERA 1996 that workers, like employees, are expected to perform personally the work required under the contract. Accordingly, rights of substitution are relevant to the test of whether an individual is a worker.(ii) The s.230(3) definition states that the other party to the contract must not be “a client or customer” of any business carried on by the individual. Accordingly, relevant factors include: who sets the rate of pay or the duration of the contract; the degree of control exercised by the employer; and the degree of integration into the employer’s business (Uber BV v Aslam [2017] 11 WLUK 238 as approved by the Court of Appeal in Uber BV v Aslam [2018] EWCA Civ 2748 and the Supreme Court in Uber BV v Aslam [2021] UKSC 5).(iii) Mutuality of obligation is also required (Windle v Secretary of State for Justice [2016] EWCA Civ 459; [2017] 3 All E.R. 568).[53]Case law again gives useful guidance: In Groom v Maritime and Coastguard Agency [2024] EAT 71 a volunteer for the Coastguard Rescue Service who was entitled to remuneration when they attended an activity was a “worker” for the purposes of the Employment Rights Act 1996 s.230(3)(b) and the Employment Relations Act 1999 s.13(1)(a). It was irrelevant that remuneration was not automatic and that not all volunteers made a claim for it.[54]In Green v Lichfield Diocesan Board of Finance Employment Tribunal [2023] 7 WLUK 625 the tribunal determined as a preliminary issue that a trainee curate could pursue a whistleblowing claim because he met the extended definition of “worker” as outlined in Gilham v Ministry of Justice [2019] UKSC 44, [2019] 1 W.L.R. 5905, [2019] 10 WLUK 193. Regarding his discrimination claims, the tribunal found that he could pursue them under the Equality Act 2010 s.49 as an office holder.[55]In applying the definition and guidance to the facts of this case, many of the same factors as set out above at paragraphs 44 - 51 also apply to this consideration. PHCM Order 12 of 14 September 2023[56]In particular, I repeat my earlier observations that there was no evidence at all that either party was obliged to either provide or to accept work. In those circumstances, there clearly was no mutuality of obligation.[57]In addition, and whilst the Claimant may have chosen to perform the services personally there was a wholesale lack of any evidence that he was under any obligation so to do.[58]I also repeat my earlier observations and findings at paragraphs 48 - 50 as to the respective credibility of the parties. Where there is a conflict of evidence, I prefer the evidence of the Respondents for the reasons set out above.[59]To my mind, it is clear that at no point did any professional contractual relationship exist as between the Claimant and the 1st Respondent. I find that the 1st Respondent’s description of the parties’ relationship accurately reflects the reality of the relationship, and in those circumstances, it is not surprising that one of the parties should, from time to time, assist the other with their business. At no point, in my judgment, did the business relationship go beyond that.[60]Consequently, and for all of the above reasons, I conclude that the Claimant did not at any material time, satisfy the test for “worker” as set out at s230(3) of the Employment Rights Act 1996.
Conclusion
[61]In this instance, and on balance, I conclude that the Claimant was neither an employee for the purposes of s230(1) of the Employment Rights Act 1996, nor a worker for the purposes of s230(3) of the Employment Rights Act 1996.[62]Consequently, the claims for arrears of pay, unpaid wages and commission do not enjoy reasonable prospects of success for the purposes of Rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024. PHCM Order 13 of 14 September 2023[63]Given they are the only remaining heads of claims being brought by the Claimant, the claim is hereby struck out. EJ Murdin 26th August 202518 September 2025 ……………………………. ……...…………………….. PHCM Order 14 of 14 September 2023