Mrs S R Albieri v Mr J Brewer and Ms S Halder: 6029844/2025
EMPLOYMENT TRIBUNALS
Case No 6029844/2025
Between
Mrs S R AlbieriClaimant(1) Mr James BrewerRespondent
Before
Employment Judge Fredericks-BowyerIn person for claimantDate 30 January 2026
JUDGMENT
[1]The claimant was not an employee or worker of the respondents.[2]Her holiday pay claim is dismissed because she has no standing to bring it in this Tribunal.
REASONS
[1]This case concerns the working engagement between the claimant, a nanny, and the respondents, parents. In this judgment, I refer to the respondent’s child only as their ‘child’ and not by name or identifiable by gender. In my view, this is appropriate to avoid their child being named in a public judgment, or otherwise identifiable in their 1 of 10 own right in the expectation the respondents would prefer as much privacy as possible.[2]Although this is a policy I adopt with the respondents and their child in mind, I also apologise if this seems cold or impersonal to the respondents. Issues to be decided[3]The claim is for accrued and unpaid holiday pay. The issues in the case, as discussed at the outset of the hearing, are:- 3.1. Whether the claimant is entitled to holiday pay because she is, as she claims, a worker of the respondents; 3.2. Whether the worker has no holiday entitlement because she is self-employed; and 3.3. If the claimant was a worker, then how much holiday pay (if any) is she owed?
Findings of fact
[4]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. The beginning of the engagement[5]The parties met through the Koru Kids app. They decided to work together, but the respondents felt the Koru Kids platform was too expensive. The parties therefore agreed to contract directly with each other. Mr Brewer told the claimant he would simply tell Koru Kids they were looking for a new nanny despite, in fact, hiring the nanny Koru Kids had connected him with.[6]There was no written contract. The parties agreed that the claimant would work two fixed days per week at £17 per hour. In practice, the respondents gave the claimant £330 in cash each week. The claimant was understood by both parties to be ‘self employed’. The claimant described herself as such in writing at the start and towards the end of the relationship. The claimant was also registered as self employed at HMRC and declared the income received as self employed receipts. The respondents, on that understanding, paid her cash and thought nothing else of it. The days the claimant worked[7]Neither party provided me with a schedule of days or times worked by the claimant. This is plainly crucial evidence to assist with understanding the nature of the working relationship. Mr Brewer repeatedly stated or implied that the claimant was required to provide this evidence base for the claim to even get off the ground. I find that Mr Brewer provided the evidence required for me to work out, on the balance of probabilities, when the claimant worked. He provided the entire whatsapp conversation within the group containing the claimant and the respondents. On the basis of those messages, I find the claimant worked on the days of:- 2 of 10 7.1. Weds 10 & Thurs 11 April 2024; 7.2. Weds 17 & Thurs 18 April 2024; 7.3. Weds 24 & Thurs 25 April 2024; 7.4. Weds 1 & Thurs 2 May 2024; 7.5. Weds 8 & Thurs 9 May 2024; 7.6. Weds 15 & Thurs 16 May 2024; 7.7. Weds 22 May 2024; 7.8. Weds 29 & Thurs 30 May 2024; 7.9. Sat 1 June 2024 (additionally); 7.10. Weds 5 & Thurs 6 June 2024; 7.11. Weds 12 & Thurs 13 June 2024; 7.12. Weds 19 & Thurs 20 June 2024; 7.13. Weds 26 & Thurs 27 June 2024; 7.14. Weds 3 & Thurs 4 July 2024; 7.15. Saturday 6 July 2024 (additionally); 7.16. Weds 10 & Thurs 11 July 2024; 7.17. Weds 24 & Thurs 25 July 2024; 7.18. Sat 27 July 2024 (additionally in the evening) 7.19. Weds 31 July 2024; 7.20. Thurs 1 August 2024; 7.21. Weds 7 & Thurs 8 August 2024; 7.22. Weds 14 & Thurs 15 August 2024; 7.23. Weds 21 & Thurs 22 August 2024; 7.24. Tues 3 & Thurs 5 September 2024; 7.25. Thurs 12 September 2024; 7.26. Weds 18 & Thurs 19 September 2024; 7.27. Weds 25 & Thurs 26 September 2024; 7.28. Weds 2 & Thurs 4 October 2024; 7.29. Weds 23 & Thurs 24 October 2024; 7.30. Mon 28 (additionally), Weds 30 & Thurs 31 October 2024; 7.31. Weds 6 & Thurs 7 November 2024; 7.32. Weds 13 & Thurs 14 November 2024; 7.33. Weds 20 November 2024 7.34. Weds 27 & Thurs 28 November 2024; 7.35. Sat 30 November 2024 (additionally); 7.36. Weds 4 & Thurs 5 December 2024; 7.37. Weds 11 & Thurs 12 December 2024; 7.38. Monday 16 & Tues 17 December 2024; 7.39. Weds 8 & Thurs 9 January 2025; 7.40. Weds 15 & Thurs 16 January 2025; 7.41. Weds 22 & Thurs 23 January 2025; 3 of 10 7.42. Tues 28 January 2025; 7.43. Tues 4 & Thurs 6 February 2025; 7.44. Mon 10 & Tues 11 February 2025; 7.45. Weds 19 & Thurs 20 February 2025; 7.46. Weds 26 & Thurs 27 February 2025; 7.47. Weds 5 & Thurs 6 March 2025; 7.48. Mon 10 & Weds 12 March 2025; 7.49. Weds 19 & Thurs 20 March 2025; 7.50. Thurs 27 & Fri 28 March 2025; 7.51. Thurs 3 & Fri 4 April 2025; 7.52. Thurs 10 & Fri 11 April 2025; 7.53. Thurs 17 & Fri 18 April 2025; 7.54. Thurs 24 April 2025; 7.55. Weds 30 April 2025; 7.56. Thurs 1 May 2025; and 7.57. Weds 7 & Thurs 8 May 2025. Requested changes to the schedule[8]The claimant told the respondents she was available for additional work on Friday 3 May 2024, Monday 6 May 2024, Tuesday 7 May 2024 and Friday 10 May 2024.[9]On Tuesday 25 June 2024, the claimant asked if she could swap the Thursday of that week (27th) for the Friday of that same week (28th). Ms Halder said she would check. She then advised that they could not do the swap because of the childminder’s lack of flexibility. The claimant apologised for the confusion and said that “the other family” had asked her to move days around.[10]On 13 July 2024, when being asked about working additionally on 16 August 2024, the claimant said she would need to “check with my other family”. There were no messages exchanged on that day and so I find she did not work.[11]On 31 August 2024, the claimant told the respondents her “other family” “went travelling” so she would be free on Monday 2 September, Tuesday 3 September and Friday 6 September 2024.[12]On 2 September 2024, the claimant asked if she could work on Tuesday 3 September 2024 and have Wednesday 4 September off. Ms Halder agreed after their childminder also agreed to swap.[13]On 4 November 2024, Ms Halder asked the claimant if her regular days could change from March 2025 to Thursday and Friday. The claimant said she would need to ask her other family, but that she believes that it would work out. On 9 November 2024, the claimant confirmed she could do the day swap starting from 23 March 2025. 4 of 10[14]On 24 November 2024, the claimant asked if she could change her working days of 18 & 19 December 2024 to 16 &17 December. Ms Halder confirmed she could after securing a swap with the childminder.[15]In January 2025, the claimant requested a series of date changes to January and February 2025 which the respondents accommodated as best as they could with other childcare. Absences and holidays[16]The claimant was described as ‘absent’ from her engagement with the respondents on Thursday 23 May 2024. On 24 May 2024, Mr Brewer asked the claimant when she planned to be away in August and the claimant said she would let him know when she bought tickets.[17]It appears from the whatsapp messages that the claimant did not work as she usually would on Weds 17 and Thurs 18 July 2024. There were no messages on that day, and on 23 July 2024, the claimant says she is “missing” the respondents’ child.[18]On 31 July 2024, the claimant told the respondents that her vacation would cover Weds 28 and Thurs 29 August 2024. She did not work on those days.[19]In September 2024, the claimant had a traffic accident and suffered a leg injury. That injury is discussed. On 10 September 2024. There are no messages on Wednesday 11 September 2024, with the claimant then confirming attendance at the respondents on 12 September 2024. I find on the balance of probabilities that the claimant did not work on 11 September 2024.[20]In October 2024, the respondents were away with their child Weds 9, Thurs 10, Weds 16 and Thurs 17. They paid the claimant for those days they were away even though the claimant was not working. When discussing the holiday on 23 September 2024, Mr Brewer asked if they could “pay the holiday pay half before and half after”.[21]There are no messages exchanged on 21 November 2024 when the client would otherwise work. On the basis the messages are the only evidence of the days worked I have, I find on the balance of probabilities that she did not work.[22]Although there was some confusion about it, the claimant did not work on 1 or 2 January 2025. The claimant thought she was not required on 1 January. Ms Halder recalled that she asked the claimant to but the claimant said it was a holiday. The parties agreed for the claimant to start working again from 8 January 2025. Other features of the relationship[23]The claimant generally decided what food she would cook for the respondent’s child. She asked for certain ingredients to be bought for her days working, and the respondents obliged.[24]On occasion, Ms Halder arranged trips or found activities for the claimant and their child to do together outside of the home. The claimant did as instructed and attended those activities.. 5 of 10[25]Equally, on 28 October 2024, the claimant decided to take the child out to a Halloween party and told the respondents that their child would need a Halloween costume. Ms Halder obliged. The claimant also decided to take the child to soft play spontaneously on 20 November 2024. Relationship breakdown[26]It is clear to me that the parties were getting on well until the respondents wished the claimant to work on Thursdays and Fridays instead of Wednesdays and Thursdays. This meant the claimant needed to move other work around, and also, I find, lose the potential to do other well paid work on Fridays from time to time.[27]In February 2025, Ms Halder accuses the claimant of making their child unwell by transferring an illness, and the claimant takes exception to it.[28]There is then a flurry of swapped days at the claimant’s instigation in February and March 2025, which appear to have tested the respondents’ patience (although they accommodated them). The claimant then asks for release for a Friday and notes that working with the respondents on Fridays cause difficulties.[29]The respondents then propose the claimant works with them only on Thursdays. The claimant is unhappy about this. The respondents, through Mr Brewer, then serve notice to end the relationship.[30]Just prior to the end, on 2 May 2025, the claimant asks for holiday pay to be paid at the end of the engagement. The parties then slide into this llitigation. The claimant’s other work[31]The parties agree that the claimant was engaged by the respondents for two fixed days per week. I find the claimant was also working for another family. The claimant told me there was another family in 2024 and that she did other babysitting work. Given the dates the claimant said she was additionally available in May 2024 and September 2024, I find the claimant was engaged on a fixed day basis for another family on Mondays, Tuesdays and Fridays each week at least between May 2024 and November 2024.[32]The claimant was ordered to disclose her tax returns going back five years but neglected to do so. She only disclosed a return in respect of the work she did for the respondents. I consider the claimant was evasive about the reasons for this. Mr Brewer invited me to conclude that the self employed self-assessed tax returns, if fully disclosed as ordered, would show the claimant doing work over those years for multiple other families. I consider it appropriate to draw that inference, particularly when the claimant was open about doing nanny or babysitting work for other families. I find the claimant did engage with others to provide the same services as she provided to the respondents during the same period of time, and that she had a history of doing so with families prior to engaging with the respondents. Relevant law 6 of 10
Relevant law
[33]The starting point in relation to considering the employment status of an individual is to consider the wording of the relevant statute. Section 230(1) to Section 230(3) Employment Rights Act 1996 provides: “230 - Employees, workers etc. (1)In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2)In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. (3)In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a)a contract of employment, or (b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;”[34]There is no single set of guidance provided by case law about how to determine a person’s employment status. Each case falls to be determined on its own particular facts and often there are factors pointing in each direction which complicate the determination. The usual approach requires all aspects of the relationship to be considered and then I should ask the question whether the claimant was carrying on a business on their own account (O’Kelly v Trusthouse Forte plc [1983] IRLR 369 CA).[35]Naturally, this means that the wording in any document and the assumptions made by the parties will only be part of the matters to be considered when making a determination. The test is not ‘what was the claimant called’ or ‘what do the documents label the parties’ or ‘what did the claimant think they were’. I may be required to look behind the contractual documentation to consider how the relationship operated in reality to determine the employment status of the claimant (Autoclenz Ltd v Belcher [2011] UKSC 41; Uber BV v Aslam & others [2019] UKSC 29).[36]In relation to whether someone is an ‘employee’ for the purposes of s230(1)(a), case law has found that a person will not be an employee without the mutual contractual obligation for the employer to provide work and the employee to do that work which is provided (Carmichael v National Power Plc [1999] IRLR 43, HL). This is often referred to in cases as the ‘irreducible minimum of obligation’. Employees who have a contract of employment containing the irreducible minimum of obligation will also 7 of 10 be ‘workers’ by operation of s230(3)(a). Such workers are often referred to in cases as ‘limb (a) workers’.[37]A person might however be a ‘worker’ even in the absence of such an irreducible minimum of obligation – the obligations on each party is just part of the discussion about whether someone might be a ‘worker’ (National Midwifery Council v Somerville [2022] EWCA Civ 229). These workers may be caught by the definition outlined in s230(3)(b), and are often known in cases as ‘limb (b) workers’. Where I find that a person is not an employee, it is possible that they could be a ‘limb (b) worker’ if they meet the relevant requirements.[38]Those requirements are set out in the legislation itself:(1) there is a contract between the individual and the employer;(2) the individual must be required to work personally for the employer; and(3) the individual must not be working for someone who is in reality their customer or client. This last part is important because it is common for people to provide services under a contract to customers or clients without them benefitting from the protections offered by a ‘worker’ status. If all three elements are present, then it does not matter if the person is operating their own business (Hospital Medical Group Ltd v Westwood [2012] IRLR 834 CA).[39]Part(1) of the legislation is self-explanatory. In the usual way, the contract may be written or may be found to have been agreed orally with terms found through the conduct of the parties. Part(2) requires the contract to not allow the person claiming to be a worker the ability to substitute with someone else who would complete the work. An employer-worker relationship is a personal one. If there is a right of substitution, then it tends towards the person not being a limb (b) worker. If that right of substitution is in reality forbidden or excessively curtailed in some way, then it is possible that the person might still be found to be a worker (Pimlico Plumbers and another v Smith [2018] UKSC 29).[40]Part (3) of the legislation is one of central issue in this case and it is often determinative of the question whether a person is a worker or not. The determination of whether or not a person offers services to a client or customer includes consideration of other sources of income (Johnson v Transcopo UK Ltd [2022] ICR 691 EAT). The level of integration is also important. Where a person is held out externally as belonging to an organisation, it is more likely that they will be considered a ‘worker’ and not someone providing services to a client (Hospital Medical Group Limited v Westwood [2013] ICR 415 CA).[41]Where a person is unable to market their services independently of the proposed ‘employer’, then it is more likely that they are a ‘worker’ and, conversely, if they can market independently and secure the same work elsewhere under the same name, then they are more likely to be someone providing services to a client or customer (per Lady Hale in Clyde & Co LLP and another v Bates van Winkelhof [2014] UKSC 32). In Bates van Winkelhof, the purpose of the arrangement is also relevant. Where a person is specifically ‘recruited’ to perform some central function of the ‘employer’, then they may be a limb (b) worker, but not where they remain largely free to market to do the same service elsewhere (Cotswold Developments Construction Ltd v Williams [2006] IRLR 181). Discussion and conclusions 8 of 10
Discussion and conclusions
[42]The claimant was registered as self employed and the parties described her as self employed. In my view, this was their intention. That is not, as is explained above, what the law requires when the issue is actually determined.[43]The claimant does not claim to be an employee of the respondents. She says she was a worker. For completeness, I do not consider there was that irreducible minimum of obligation in the relationship. The parties felt able to discuss and amend the amount of work done. Where work was done, I consider it was paid for. But there was no minimum requirement. Ultimately, the claimant was able to say she would not work. When the respondents unilaterally reduced the claimant’s days, the claimant’s complaint was only that there was not much time to adapt. She did not assert that the respondents were contractually unable to make that reduction.[44]There are features in any case involving a nanny which points towards the person being a worker. Families will not be happy if someone else appears to care for their child other than the particular nanny they have chosen to hire. I consider that is the case here. There is no suggestion the claimant had a right of substitution. I consider there was none. This was a contract for a personal service.[45]The place of work was fixed. The principal place was the respondents’ home. This is to be expected given the nature of the task. Despite that, I consider the claimant had a great degree of control over how the services were provided. She was able to take the child out. She decided what the child should be fed. She expressed her view about how things should be done. In my judgment, this was not a relationship where the respondents were instructing the claimant how the tasks should be done in a way similar to a servant and master. The claimant was, in her own right, a professional providing a service.[46]For me, this case must turn on the question as to whether the respondents were a customer or client of the claimant’s business. There is no doubt the claimant is in business as a nanny. In my judgment, the claimant’s submissions before me that the respondents were her only fixed family are not accurate. The messages show there was another long term family for whom the claimant worked three days per week. The claimant had worked for other families previously, I consider likely on the same or similar terms, and as I understand it she continues to do so now with families other than the respondent.[47]Although I accept it is possible to be a worker with more than one job, I do not consider that that is the correct way to interpret this relationship. In all of the discussion about the services and the days upon which they were to be provided (or where adjustments were made), the claimant takes part as an equal. She leads requesting alterations in order to either(1) accommodate the requests of her other family, or(2) maximise her earnings on days where there is a premium for her services.[48]In my judgment, this is a case where the facts and nature of the relationship point firmly towards the respondents being clients of the claimant’s nanny services, which she provided at the time to at least two families, and more on an ad-hoc basis when she was able to. 9 of 10[49]Given the nature of the work, there are naturally no other factors to consider such as the level of integration into a business or how the arrangement may look to the outside world. Nothing in those usual factors assists the claimant.[50]Having stood back and considered the relationship as a whole, and considered what I find the claimant was doing with others in the pursuit of her business, I am secure in my conclusion that the claimant was engaged in the way described by both parties and voluntarily declared by the claimant to HMRC. She was, throughout the relationship, self-employed. She was not an employee or worker of the respondents.
Disposal
[51]Having found that the claimant was neither an employee or a worker, the claimant’s claim falls to be dismissed because the tribunal has no jurisdiction to hear it. If the claimant considers that holiday pay was part of the contract between her self employed business and the respondents, it is now up to her to pursue the respondents in the County Court instead.[52]I have deliberately made no findings of fact about the precise terms of the engagement so as not to bind or embarrass the County Court. As soon as I determined I have no jurisdiction over this claim, I decided not to find facts which I am not required to make.[53]Mr Brewer seemed keen to show less patience and courtesy in the hearing than is usual in Court or Tribunal proceedings. I hope he now understands that those qualities are needed to ensure that everything is heard and examined properly in a case.[54]I, in turn, understand how important it is to have trust in those caring for your children, and so I acknowledge his deep frustration at being brought to proceedings despite a previously common understanding that the claimant was described as selfemployed.[55]I maintain the view, expressed in the hearing, that this entire dispute could have been avoided if the parties had written down some basic terms of their engagement which set out the hours to be worked, the pay for that, the basis of the engagement, and whether the respondents would cover holiday pay.