Mr C Jervis v Blair Ecosse Management Ltd: 8000520/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000520/2025

Between

Mr C JervisClaimant

Blair Ecosse Management LtdRespondent

Before

Employment Judge A Strain

Mr G Bathgate (instructed by Solicitor) for claimant

Ms A MacDonald for respondent

Managing Director for respondent

Date 26 September 2025

JUDGMENT

The Judgment of the Employment Tribunal is that:(1) in the period from 15 July 2024 until 1 October 2024, the employment status of the Claimant was “worker” within the meaning of section 230(3)(b) of the Employment Rights Act 1996 (ERA).

(2) the Claimant’s claim for unpaid wages is successful.

(3) the Respondent is ordered to pay the Claimant the sum of £2,187.25 (Gross) in respect of unpaid wages. Background

[1]The Claimant was represented by his solicitor, Mr Gordon Bathgate. He asserted a claim in respect of a failure to pay him for hours worked during the course of his work with the Respondent.

[2]The Claimant sought payment for 168.25 hours worked during September/October 2024.

[3]The issues for determination were:a. Whether the Claimant was an employee, worker or self-employed;

b. Whether the Claimant worked for the Respondent for the hours claimed as unpaid;

c. What sums, if any, were due to the Claimant for any unpaid work.

[4]The Respondent was represented by its Managing Director, Ms A MacDonald.

[5]The Respondent maintained that at all times the Claimant was self employed and that in September/October 2024 he had worked only 20 hours per week on average.

[6]The Parties had each lodged a bundle of documents with the tribunal in advance of the Hearing. Additional documents were produced following conclusion of the hearing. These were email exchanges of 12 and 18 August 2025 from the Parties enclosing What’s App messages with rotas and detailing the Parties respective submissions on the content of the What’s App messages.

[7]The Claimant lodged a written statement in advance of the hearing.

[8]Parties agreed for the purposes of the hearing that the Claimant was paid a gross hourly rate of £13.

[9]The Tribunal heard evidence from the Claimant, Ms Anne MacDonald (AM) (Managing Director) and Scott Davies (SD) (Executive Chef/Senior Manager) for the Respondent. The Respondent lodged written statements from various members of staff in their productions. This included statements from AM and SD.

[10]Both Parties made oral submissions to the Tribunal. Findings in Fact

[11]Having heard the evidence and considered the documentary evidence before it the Tribunal made the following findings in fact:

[12]The Respondent operates a hotel in Highland Perthshire in Scotland called the Old Manse of Blair.

[13]The Claimant was engaged by the Respondent initially as a Kitchen Porter from 15 July 2024. He was engaged by the Respondent’s then Manager, Ms Amy Snell (AS). Ms Snell was the Claimant’s partner at the time.

[14]The Claimant also had another job working at Pizza Express.

[15]The Claimant was never given a written contract of employment or terms of engagement for his work with the Respondent.

[16]The Claimant was provided with a weekly rota by AS and worked the hours specified in the rota. The hours he worked were determined by the Respondent in order to fulfil operational needs. He submitted signed weekly time sheets and invoices to AS and was paid £13 per hour gross for the hours worked.

[17]After 3 weeks working as a kitchen porter the Claimant was asked to do more general assistant duties (by AS) which included housekeeping, cleaning and front of house.

[18]The Claimant was paid for the work he undertook personally. He could not send a substitute to undertake his hours.

[19]The Claimant was paid through BACS by the Respondent for hours worked in July and August 2024.No deductions were made for tax and national insurance.

[20]The Claimant was provided with Respondent branded clothing to wear at work.

[21]In the period 3 to 7 September 2024 the Claimant worked 53.5 hours as detailed in his signed timesheet dated 7 September 2024. He has not been paid for these hours.

[22]In the period 10 to 14 September 2024 the Claimant worked 57.25 hours as detailed in his signed timesheet dated 14 September 2024. He has not been paid for these hours.

[23]In the period 16 September to 1 October 2024 the Claimant worked 57.5 hours as detailed in his signed timesheet dated 1 October 2024. He has not been paid for these hours. The Relevant Law

[24]Section 230 ERA (Employees, workers etc) provides, so far as relevant, 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 the 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; and any reference to a worker’s contract shall be construed accordingly.

(4) In this Act “employer”, in relation to an employee or worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Act “employment” – (a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and (b) in relation to a worker, means employment under his contract and “employed” shall be construed accordingly ….

[25]There is a considerable volume of case law on the issue of employment status. The appropriate place to start was Clyde & Co LLP and another v Bates van Winkelhof

2014 ICR 730

where (at paragraph 39) Baroness Hale said this – “I agree with Maurice Kay LJ that there is not “a single key to unlock the words of the statute in every case”. There can be no substitute for applying the words of the statute to the fact of the individual case. There will be cases where that is not easy to do. But in my view they are not solved by adding some mystery ingredient of “subordination” to the concept of employee and worker. The experienced employment judges who have considered this problem have all recognised that there is no magic test other than the words of the statute themselves.”

[26]In Sejpal v Rodericks Dental Ltd

[2022] EAT 91

, after quoting this passage from Baroness Hale and setting out section 230(3) ERA, Tayler HHJ said this “10. Accordingly, for an individual(a) (A) to be a worker for another

(b) (B) pursuant to section 230(3)(b) ERA:

a. A must have entered into or work under a contract …. with B; and 5

b. A must have agreed to personally perform some work or services for B. 11. However, A is excluded from being a worker if: a. A carries on a profession or business undertaking; and b. B is a client or customer of A’s by virtue of the contract.” Submissions For the Claimant

[27]Mr Bathgate made oral submissions on the Claimant’s behalf.

[28]He conceded that on the basis of the evidence the Claimant could not be an employee. He submitted that the Claimant was either a worker or selfemployed. He referred to the wording of section 230(3)(b) ERA. The Parties had entered into a contract for the Claimant to perform work personally for the Respondent. The Claimant worked under the instruction of AS who provided him with rotas detailing the hours he was to work. It was not possible for him to send a substitute to perform the work as there was an element of delectus personae.

[29]In so far as the hours worked were concerned there was a dispute on the evidence. He submitted that the Respondent’s position was a moveable feast. In the ET3 the Respondent’s position had been that he had worked 20 hours for the period claimed. Then this moved during the course of the hearing from 20 hours per week to 60 hours in total. He invited the Tribunal to prefer and accept the evidence of the Claimant.

[30]SD’s evidence was that the Claimant was a hard worker. AM disputed the number of hours worked by the Claimant and made allegations that he was often seen outside smoking rather than working.

[31]The Respondent’s did not dispute the Claimant was there on the days claimed.

[32]The Claimant’s evidence was consistent with the Respondent’s evidence of occupancy rates at the hotel and their concession that he would have worked 20 hours per week. For the Respondent

[33]AM made oral submissions for the Respondent.

[34]She submitted that the evidence showed the Claimant was selfemployed. He had agreed to be engaged on that basis, had invoiced and been paid gross without deduction for tax and national insurance.

[35]The hours he claimed to work had been fabricated. The evidence of SD was significant in this regard as it contradicted the Claimant’s evidence. Reference was made to 30 September 2024 where SD stated that the Claimant had shown up at work, requested food and gone to the caravan (accomodation). He had not been working.

[36]Anyone else could have done the work the Claimant performed. Other staff were engaged on a self employed basis and could have covered his shifts.

[37]The Claimant’s timesheets had not been signed off by an authorised manager.

[38]It was asseted that the Claimant had manipulated evidence with the assistance of AS. Observations on the Evidence The Claimant

[39]The Tribunal found the Claimant to be a credible and reliable witness. His evidence regarding the work he undertook, the terms on which he was engaged, the rotas and shifts were consistent with the documentary evidence produced and relied upon by both Parties and also to an extent by the evidence of the Respondent’s witnesses at the hearing.

[40]The Parties evidence clearly established that there was no dispute the Claimant had been engaged by AS, what the duties were that he performed and how his shifts were communicated to him. Equally there was no dispute as to the rate he was paid for work, that he submitted timesheets and invoices, that he was paid in full for hours worked in July and August and that he was due some payment for the work claimed for.

[41]What was essentially in dispute (aside form status) were the number of hours worked. The Respondent AM

[42]The Tribunal did not find AM’s evidence to be credible or reliable.

[43]She was firmly of the view that the Claimant was self-employed and was claiming excessive hours. Her position was that it had been agreed with the Claimant that he would be self-employed, he invoiced and was paid gross and that was determinative of the matter. AM did not directly recruit the Claimant. He was recruited by AS. There was no written contract.

[44]By her own admission she was either not present when the Claimant was working or did not see him. She was not checking on him. This underlines the issue with her position that he did not work the hours claimed. She had no direct evidence of this. She also speculated that he had fabricated his hours with assistance from AS but had no direct evidence of this either. SD

[45]The Tribunal found SD’s evidence to be of little assistance to determining the issues before it. He had only been employed with the Respondent from 26 August 2024 so could only speak to matters from that date. He considered the Claimant to be a hard worker although he claimed to have observed the Claimant on his mobile phone and smoking on his working days which contradicted his evidence to some extent.

[46]SD stated that in or around beginning of October 2024 AS left the Respondent and SD became responsible for signing off the Claimant’s time sheets. He became suspicious of the time sheets as the Claimant did not appear to be taking any breaks. He did not believe the hours were genuine because of that but had no direct evidence that the hours were not genuine. He explained how flexible all of the staff were. He accepted that he (SD) did not work 7 days per week and was not there every time the Claimant was on shift.

[47]SD asserted that on 30 September 2024 AM, SD and AS were on duty. They had more than enough staff and he wanted the Claimant to be given the day off. There were only 3 covers that day. AS informed him that he (the Claimant) had already bought his train ticket and was on his way to work. SD said that the Claimant reported for work at 6pm and commenced his shift then.

[48]The Tribunal note that the Claimant claims to have worked from 5pm that date. On that basis it appears SD’s evidence to a material extent corroborates the Claimant’s position.

[49]SD also spoke to the fact that he was told the Claimant was a selfemployed contractor.

[50]It did appear to the Tribunal that the Respondent’s evidence was highly speculative and without foundation. Discussion and Decision Employment Status

[51]The Tribunal reminded itself of what Tayler HHJ also said in Sejpal before quoting Baroness Hale (as above) – “Determining worker status is not very difficult in the majority of cases, provided a structured approach is adopted, and robust common sense applied. The starting point, and constant focus, must be the words of the statutes. Concepts such as “mutuality of obligation”, irreducible minimum”, “umbrella contracts”, substitution”, predominant purpose”, “subordination”, “control” and “integration” are tools that can sometimes help in applying the statutory test, but they are not themselves tests. Some of the concepts will be irrelevant in particular cases, or relevant only to a component of the statutory test. It is not a question of assessing all the concepts, putting the result in a pot, and hoping that the answer will emerge; the statutory test must be applied, according to its purpose.”

[52]The Tribunal approached matters by looking at the language of section 230(3)(b) ERA and considering how that should be applied to the particular facts and circusmatnces of this case.

[53]The Claimant had been engaged by AS on the Respondent’s behalf. There was no written contract. The terms of the agreement were not in dispute. The Claimant worked the hours directed on his rota and was paid at the rate of £13 per hour. He was paid gross and without deduction for PAYE or national insurance.

[54]The existence of the agreement was sufficient to satisfy the requirement in section 230(3)(b) ERA that the Claimant should have entered into a contract.

[55]Much was made of the Respondent’s assertion that the Parties had agreed the Claimant was to be self-employed. Parties agreement to employment status is not determinative of status. Consistent Group Ltd v Kalwak and others

2007 IRLR 560

“…. the concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work, in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship.” “…. the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part.” The terms of the agreement entered into between the Parties were not determinative of the nature of the relationship

[56]The Tribunal consider the description of the Claimant’s employment status simply to be one of the elements to be taken into account in determining, but was not conclusive of, that status.

[57]The Tribunal then considered the second limb of section 230(3)(b) – did the Claimant undertake to personally perform some work or services for the Respondent? The answer to this was clearly in the affirmative. The Claimant agreed to work the hours he was rostered on and fulfill the duties directed by AS. He had no right to substitution. Yes, it was correct to say that if he did not work his shift then another staff member could have covered his shift but that would have been a member of existing staff identified and agreed by the Respondent to perform the shift. This was not a right of substitution.

[58]Turning to the third limb of section 230(3)(b), the Tribunal considered whether the Claimant was carrying on a profession or business undertaking, and whether the Respondent was a client or customer of the Claimant.

[59]Applying “robust common sense”, the Tribunal decided that the Respondent, by engaging the Claimant to work on the rotas provided to him, did not thereby become his client or customer. The phrase “profession or business undertaking” connotes some form of enterprise. Standing back and looking at the situation of the Claimant working as a kitchen porter, front of house, housekeeper or cleaner, it did not have the appearance of the Claimant conducting a business. It did not entail the Claimant taking any commercial risk. It would be a distortion of the reality of the situation to describe the Respondent as the Claimant’s client or customer. Accordingly, the Tribunal found that during the Claimant’s status was that of worker. All elements of the section 230(3)(b) definition were satisfied. Hours Worked

[60]The Tribunal prefered and accepted the Claimant’s evidence on the hours he worked. There was no credible or reliable evidence to the contrary. If anything the Respondent’s evidence to a material extent corroborated the evidence of the Claimant.

[61]The Tribunal found that the Claimant had worked the hours claimed in his timesheets which amounted to 168.25 hours. The Tribunal noted that in his written statement he stated he was due 165.25 hours. The Tribunl assume this was an error on his part as the total hours on the time sheet were 168.25.

[62]The Claimant is entitled to payment in respect of these hours at the rate of £13 per hour. The Tribunal accordingly order the Respondent to pay the Claimant the sum of £2,187.25 (Gross).