Ms A Moughal v Dr M S Moughal and others: 8001709/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001709/2024

Venue Glasgow

Hearing 6, 7 and 8 August 2025

Between

Ms A MoughalClaimant

Dr M S Moughal and othersRespondent

Before

Employment Judge M Whitcombe

Mr C McDowall for claimant

(Solicitor) for claimant

Mr P Jain for respondent

(Solicitor) for respondent

Mr R Katz for respondent

(Senior Litigation for respondent

Consultant) for respondent

Mr C Reeve for respondent

Date 20 August 2025

JUDGMENT

The reserved judgment of the Tribunal on preliminary issues is as follows.(1) The claimant was an employee within the meaning of section 230(1) and

(2) of the Employment Rights Act 1996, and therefore a worker within the meaning of section 230(3)(a) of the same Act. (2) The claimant was employed by the fourth respondent, and by virtue of section 6 of the Partnership Act 1890 the first and second respondent too.

(3) The claimant was dismissed by her employers on 31 July 2024.

(4) The claim was presented within time such that the Tribunal has jurisdiction to hear it.

REASONS

[1]This preliminary hearing was listed at the direction of EJ Campbell following a case management hearing on 23 April 2025. His order explains more of the background, but for present purposes this summary should be sufficient. The parties

[2]The claimant is a nurse.

[3]The first respondent and the second respondent are both GPs. They were formerly partners in the fourth respondent partnership which operated general practices in Newton Mearns and Pollokshields. However, that partnership has now been dissolved following a dispute between the partners and its affairs are currently managed by judicial factors. A response has been lodged on behalf of the fourth respondent partnership and it defends the claim, but the fourth respondent has not participated in any hearings.

[4]The first respondent is also the claimant’s brother.

[5]The third respondent Health Board is potentially liable for any successful claims following a relevant transfer of the undertaking pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE 2006”) around the beginning of August 2024.

The claim

[6]The claimant alleges that she was formerly employed by the fourth respondent partnership as a Practice Nurse and has brought the following complaints on that basis:a. unlawful deductions from wages after the end of April 2024 contrary to section 13 of the Employment Rights Act 1996 (“ERA 1996”);

b. failing to inform and consult in relation to a relevant transfer, contrary to regulation 13 of TUPE 2006;

c. unfair dismissal, either on standard principles or automatically unfair dismissal for a reason connected to a transfer. Issues for this hearing

[7]The preliminary issues I must decide are as follows:a. Was the claimant an employee as defined by section 230(1) of the ERA 1996, or alternatively a “limb (b)” worker under section 230(3)(b) of the same Act?

b. If so, i. Which legal person or persons engaged the claimant? ii. Was her employment/engagement terminated? iii. If so, on which date and by whom?

c. If the claimant was an employee, does the Tribunal have jurisdiction to hear a complaint of unfair dismissal having regard to the time limit defined by section 111(2) and (2A) of the Employment Rights Act 1996?

[8]By the end of the hearing all parties accepted that the claimant’s engagement had terminated, and the claimant no longer pursued the rather ambitious argument that she was still employed by the partnership.

Evidence

[9]Evidence was heard over the course of 2.5 days and submissions were made on the final afternoon. Witness statements were not used and evidence in chief was given orally. All witnesses gave their evidence on oath or affirmation and were cross-examined by the other parties. The claimant gave her evidence remotely by video, given her home address, the age of her child and her caring responsibilities.

[10]In order, I heard oral evidence from:a. Ms Anika Moughal, the claimant.

b. Ms Sandra Grant, a GP surgery practice manager for the last 23 years and prior to that a medical receptionist. She was the Practice Manager of the fourth respondent until 30 April 2025.

c. Dr Mohammed Moughal, the first respondent.

d. Dr Aroona Arfan, the second respondent.

[11]There was a joint bundle of documentary evidence running to 289 pages. Not all of it was referred to in evidence.

[12]At my suggestion, the hearing was timetabled in a way agreed by the parties. I am grateful to all the representatives for the hard work and skill they demonstrated when adhering to it. It ensured that the evidence and submissions were completed on time. There was insufficient time also to prepare and deliver an oral judgment, so I reserved judgment. Credibility and reliability

[13]The relative credibility of the witnesses and the objective reliability of their evidence were important factors in this case. I will therefore set out my reasoning on those issues at slightly greater length than might be customary. Approach

[14]When assessing the evidence I considered the inherent probabilities, recognising also that improbable things can and do happen. I scrutinised the evidence I heard for signs of inconsistency or contradiction, and I considered possible explanations for any inconsistency or contradiction. I gave due weight to corroboration, where it existed. I considered the consistency of the oral evidence that I heard with the documents generated at the time, although there were relatively few of those in the joint file of documentary evidence. I bore in mind that human memory is not, as many people believe, like a photograph, which may range from the sharp and clear to the blurry and indistinct. Memory is essentially a reconstructive psychological process. Numerous psychological studies have demonstrated just how easy it is for human beings to convince themselves that they saw or heard things that did not happen at all, or to forget striking things that definitely happened. The process of repeating, rehearsing and discussing allegations and evidence in preparation for a hearing can play a part in that. For those reasons, honest witnesses can also very easily be mistaken.

[15]Each party had valid points to make about credibility and reliability. No single piece of evidence was determinative. It was a question of weighing and balancing those competing points and forming a holistic view. I therefore assessed disputed evidence in the context of all the other evidence that I heard and read. Key points on credibility and reliability

[16]In general, I found the claimant’s evidence persuasive. She engaged with the questions and gave straightforward and cogent answers. One potential blemish was when she said initially that she had seen a written contract of employment relating to the relevant period but had not signed it, and that it would be found somewhere in her work emails to which she no longer had access. That contrasted with her eventual position which was that the contract was entirely oral and had not been reduced to writing. That is an important issue on which she contradicted herself. However, I make some allowance for the fact that she was clearly distracted during her video evidence by the needs of her baby and was not always concentrating on the question. I also bear in mind that the claimant’s final position on the contract was corroborated by Sandra Grant’s evidence. Overall, I found the claimant’s evidence to be generally credible.

[17]Sandra Grant gave her evidence with a calm authority that I found persuasive. She too engaged with the questions and gave straightforward and cogent answers. I did not detect any hint of exaggeration or obfuscation. She was quick to make realistic concessions and to admit her own failings. That enhanced her credibility. While it is certainly surprising that she failed to issue the claimant with a written contract for the relevant period of employment or the written statement of terms required by statute, I accept her evidence that it was due to an error on her part. She regarded the situation (wrongly) as a continuation of the claimant’s previous employment following a break of a few months to get married. The Covid-19 pandemic was well underway at the relevant time, and I accept Sandra Grant’s suggestion that the pressures of that period might also be an explanation for the lack of contractual documentation.

[18]I make a similar finding in relation to payments of holiday pay to the claimant. The payslips did not itemise holiday pay because Sandra Grant did not process the payroll in that manner. Neither she nor the claimant used EMIS to record the claimant’s holiday. They could have done, but it was not as important to do so given the claimant’s largely remote role. Reception staff were not booking clinics against the claimant’s name in the EMIS system. I accept Sandra Grant’s evidence that she kept separate records of the claimant’s annual leave and sick leave on a spreadsheet. In those circumstances, the absence of EMIS records of the claimant’s leave is not surprising and it does not undermine the claimant’s case.

[19]There is a striking absence of records on the EMIS system indicating clinical activity by the claimant. However, that must be assessed in the context of a role which, according to the claimant, did not cover the full normal range of duties of a Practice Nurse, even on a part-time basis. The claimant’s evidence was that most of the work she did remotely was based on a spreadsheet prepared by Sandra Grant who extracted the necessary information from EMIS. That spreadsheet was stored on a shared drive to which the claimant had remote access. The claimant then marked up that spreadsheet to record the tasks she carried out. That is certainly a possible explanation for the lack of EMIS activity. Quite simply, the claimant’s evidence was that her work was not done directly from or recorded on EMIS. I did not find the contrast with EMIS activity by receptionists helpful, because their role is very different. I found the claimant’s explanation for the lack of EMIS activity on her part plausible. It was also corroborated by Sandra Grant.

[20]Neither Sandra Grant nor the claimant now have access to the relevant spreadsheets demonstrating work done and leave records. That is not suspicious given that the documents would be held by the practice, which is now managed by judicial factors following the dissolution of the partnership. It has not participated in this hearing.

[21]In her oral evidence Dr Arfan sometimes struggled to stick to and answer the questions asked of her. Several warnings were given, but the tendency continued. At times it appeared that Dr Afran used the question as a springboard to deal with matters about which she would prefer to speak, or which she thought the Tribunal should hear about as well as the answer to the question. Given that Dr Arfan is obviously a highly intelligent and articulate person, this undermined her credibility. I was not convinced that she was always giving me unvarnished and straightforward answers to the questions. Her responses to questions about facts were sometimes more like a presentation, or even advocacy.

[22]Dr Arfan’s evidence also sometimes had an emotional dimension which caused me to doubt whether her sincere beliefs were sufficiently objective and evidence-based to be reliable. She spoke of being “outnumbered”, a “gang”, a “conspiracy” and being “bullied and ganged up against” and was clearly influenced by the advice of family members that there were likely to be suspicious activities she had yet to discover. Dr Arfan also suggested towards the end of her evidence that the purported employment of the claimant was a device to allow the first respondent to withdraw funds from the partnership without paying tax. Conspicuously, that had not been put to the first respondent in cross-examination or pleaded in the second respondent’s grounds of resistance. The grounds of resistance alleged instead that the arrangement was intended to divert funds from the partnership for the benefit of the claimant. It was a striking and serious allegation that appeared to have been made for the first time towards the end of the case. That also undermined Dr Arfan’s credibility.

[23]Despite being one of the partners, and as such one of the two most senior people in the business, Dr Arfan failed to put her suspicions directly to the claimant or to ask the claimant to provide evidence of her work while the claimant was still in a position to do so. Dr Arfan said that she had received advice that it was for the claimant to prove that she was working, but the claimant was not asked to do so prior to the commencement of these proceedings. Dr Arfan had been advised to call the claimant in for a meeting, but she did not do so, explaining that she “had a lot of other stuff going on at the time”. That was not just an important missed opportunity, it undermines the reliability of Dr Arfan’s evidence that no work was done by the claimant. She had not given the claimant a chance to address the suspicion that no work was being done. The point can also be illustrated in the following way. Dr Arfan accepted that she was completely unaware of the spreadsheet operated by Sandra Grant to record the claimant’s leave, or the spreadsheet evidence allegedly available on the shared drive which recorded both the tasks the claimant was asked to carry out remotely and also the claimant’s related activity. Dr Arfan accepted that it would have been easy for her to check the shared drive if she had been aware that the claimant pointed to it as evidence of her work. Dr Arfan did not look at the shared drive for evidence of the claimant’s work at all. Dr Arfan was not in a position to state from personal knowledge that no such documents existed, rather she was able to say only that she was not aware of them.

[24]Importantly, Dr Arfan also accepted that the claimant might have had professional interactions with the first respondent, as both had asserted in their evidence. Dr Arfan conceded, “he might have, I don’t know”.

[25]Although Dr Afran sometimes asserted that the claimant had “no contract”, she also said that she thought the claimant was on a “zero hours” and “ad hoc” arrangement. However, and importantly, she accepted that even a zero hours arrangement might be a contract of employment. Ultimately, Dr Arfan explained that by using the phrase “no contract” she really meant an “improper contract”, or a contract that she “was not aware of” rather than one which did not exist at all. She accepted that “sham contract” was not an accurate summary of how she viewed the situation. While I would not expect a lay person, however intelligent, to use legal terminology as carefully or as nimbly as an experienced employment lawyer, the lack of clarity on this central issue undermined Dr Arfan’s case.

[26]The claimant’s evidence as to the type of work she did and the way in which she did it was corroborated by Sandra Grant and the first respondent. That is an important consideration. It was contradicted by the second respondent, but the second respondent’s evidence was essentially to the effect that she could not see evidence of the claimant doing any work, and that she had no personal experience of the claimant doing any work. I find that the claimant, supported by Sandra Grant and the first respondent, has given a plausible explanation both for the lack of EMIS activity and also for the fact that she was able to carry out a subset of the normal duties of a Practice Nurse remotely. Burden and standard of proof

[27]The burden of proof lies with the party seeking to establish a proposition, or jurisdiction. For practical purposes at this hearing that means the claimant.

[28]Where facts were disputed, I made my findings on “the balance of probabilities”, in other words, a “more likely than not” basis. If I decided that a fact was more likely to be true than untrue, then for the purposes of this decision it is deemed to be true. Conversely, if I decided that a fact was more likely to be untrue than true, then for the purposes of this decision it was not proved. It is therefore a rather binary process, in which a 51% probability is equivalent to certainty. That is the standard of proof used in civil courts and tribunals. Nothing must be proved “beyond reasonable doubt” and I do not have to be “sure” of anything to proceed on the basis that it is true, as would be the case in a criminal court.

[29]I emphasise all of that because I would not want any witness whose evidence I have not accepted to think that I am, by implication, calling them a liar. That does not follow. It just means that I decided that their evidence was, on balance, unlikely to be correct.

[30]For the reasons set out above, on balance I accept the claimant’s evidence, corroborated by Sandra Grant and to some extent the first respondent, as to the work that she did and the way in which she did it. I think that the evidence of the claimant, Sandra Grant and the first respondent amounts to a consistent account of the core facts which is more likely to be correct than the view of the second respondent, which was not based on a meaningful investigation. Employment status

Facts

[31]This case concerns a small general practice with no more than about 6 employees at any one time. There was no dedicated HR department.

[32]The claimant was initially employed by the practice in 2013 as a receptionist. She progressed to become a health care support worker and then started to study to become a nurse. While studying to become a nurse from 2014 to 2018 the claimant was employed by the practice on a “zero hours” basis.

[33]The claimant left her employment in July or August 2020 to get married and relocate to London. A P45 was issued recording a leaving date of 31 July 2020.

[34]The re-engagement came about following a conversation between the claimant and Sandra Grant in the summer of 2020. Sandra Grant was responsible for the general running of the practice including hiring staff. She approached both GP partners (i.e. the first and second respondents) because she believed that the practice had a need for work that the claimant could cover remotely. Sandra Grant did not have the time to carry out very timeconsuming work on chronic disease registers herself. Both GPs approved the idea. On that issue I prefer the evidence of Sandra Grant and Dr Moughal to Dr Arfan’s denial of any knowledge. I also accept the evidence of Sandra Grant and Dr Moughal that the latter placed no pressure on Sandra Grant to employ his sister.

[35]Sandra Grant offered the claimant a role working 16 hours a week at flexible times as a Practice Nurse. The claimant would not carry out the full range of duties and would be paid £13.86/hour, less than the normal hourly rate for a practice nurse. That was considered fair because although the claimant was using some of her clinical skills, her remote role was essentially administrative. The proposal was that the claimant would attend the practice to carry out clinics as and when required, but that her work would otherwise be done remotely. The claimant understood that her employer would be the partnership, Dr Arfan and Dr Moughal. The claimant was not issued with a written statement of terms or a written contract as she should have been because of an oversight on Sandra Grant’s part. She erroneously regarded the situation as the continuation of previous employment and may also have been distracted by the pressures of the Covid-19 period. I am satisfied that it was a genuine and innocent oversight. I am also satisfied that Sandra Grant made an oral offer of employment on the above basis, and that the claimant accepted that offer orally. The agreement was that the claimant would be given work for 16 hours a week and that the claimant would do that work in exchange for her salary.

[36]The claimant began working on that basis in September 2020. Initially, the claimant was asked to attend the practice for 1 or 2 days a month, although the claimant would also use that as an opportunity to visit family and would stay in the area for a week. Sandra Grant told the claimant when she was required at the practice. When the claimant attended the practice premises it was to carry out Covid-19 vaccination clinics or smear clinics.

[37]For most of the time, when not attending clinics in Glasgow, the claimant worked on the management of chronic diseases such as asthma, diabetes, coronary heart disease and COPD. It was a significant amount of work and the practice could have around 300 patients on a given chronic disease list. The claimant worked remotely by logging onto the practice computer system and accessing work summarised in a spreadsheet prepared by Sandra Grant and stored on a shared drive. Sandra Grant created that spreadsheet by extracting data from the EMIS system. The claimant did not use EMIS herself for this work and marked up the spreadsheet on the shared drive to record the work carried out. The work focussed on patients with chronic diseases and the claimant’s role was to check that patients attended for reviews or tests when necessary. She made telephone calls to patients for that purpose. The claimant also used the SCI-Diabetes platform for work connected with diabetic patients. Sandra Grant’s view was that if the relevant register was kept up to date it was not also necessary to update EMIS with the same information. Whether she was right or wrong to take that view, it explains the lack of EMIS activity reflecting the claimant’s work.

[38]The claimant used her own mobile phone to make the calls. She also purchased a laptop for which she was told that she would be reimbursed, although in fact she was not. She did not require any other equipment to carry out the remote work. The claimant did not recharge phone costs to the practice, nor did she claim for travel expenses when attending clinics. Her view was that she was visiting family anyway, so it would not be appropriate.

[39]The work involved relatively little contact with GPs. The claimant did have occasional professional interactions with the first respondent, but only very rarely had contact with the second respondent. The claimant was in regular contact with Sandra Grant, who was her line manager. She set the claimant’s tasks and monitored the claimant’s output.

[40]Sandra Grant also authorised and recorded any leave. If the claimant wished to take annual leave then she required prior approval from Sandra Grant. However, annual leave was not recorded as such on payslips because Sandra Grant did not know how to do that. She ran the payroll herself. Similarly, the claimant was required to notify Sandra Grant of sickness which made the claimant unable to work. Sandra Grant kept records of sick leave.

[41]The claimant was paid through the payroll and did not submit invoices. Her remuneration was described as “salary” on the payslips. The practice was responsible for deductions of tax and national insurance. The practice also made pension contributions for the benefit of the claimant.

[42]The claimant became pregnant in 2023 and the pregnancy was complicated. From that point and for that reason Sandra Grant made far fewer requests for the claimant to attend clinics in Glasgow. She understood that the claimant’s circumstances would make travel very difficult for her but was happy for the claimant to focus on her other duties instead.

[43]The claimant was not permitted perform her duties, whether online or at clinics in Glasgow, by arranging for a substitute to cover for her.

[44]Dr Arfan wished to apply a disciplinary process to the claimant, although that did not in fact occur. The claimant also lodged a grievance about the termination of her engagement, but no hearing took place because the claimant was too unwell to attend.

Legal principles

[45]The definition of employment in section 230(1) and (2) ERA 1996 effectively incorporates the common law definition of “contract of employment” meaning a “contract of service or apprenticeship”, which may be express or implied, oral or in writing. In this case it is alleged to have been oral.

[46]With admirable concision, the representatives succeeded in making their submissions on employment status without excessive reference to authorities. That is perhaps because this case turned largely on credibility, and the facts were not ones which put the case in one of the developing or grey areas of the law on employment status. In those circumstances, I hope it will be sufficient to set out the relevant law briefly.

[47]It was common ground that I should apply the well-known test in Ready Mixed Concrete (South East) Limited v The Minister of Pensions and National Insurance [1968] 2 WB 497, which continues to stand the test of time. The key aspects of a contract of employment (or in the 1960s, “a contract of service”) were and are:a. an agreement between the employee and the employer for the employee to provide their own work or skill in the performance of a service for the employer;

b. an agreement, expressly or impliedly to be subject to a sufficient degree of control to make the relationship one of employment;

c. the other provisions of the contract are consistent with a contract of employment.

[48]That 3-part test has been approved at Supreme Court level.a. The first limb entails a requirement of personal service as part of a “work-wage bargain” – an unqualified obligation on the part of an individual to provide his or her work or skill in return for remuneration or some other benefit. There must be an irreducible minimum of obligation on each side (Nethermere (St Neots) Ltd v Gardiner

[1984] ICR 61

, CA, Carmichael v National Power plc

[1999] ICR 1226

, HL).

b. The second limb does not necessarily require actual or day to day control over performance. That would not be typical of highly skilled or autonomous employed roles. The issue is the existence of some form of ultimate control of work in the sense of, for example, what to prioritise, or who to report to. That will be sufficient even if day to day control is absent. See e.g. Catholic Child Welfare Society v Institute of the Brothers of Christian Schools

[2013] IRLR 219

, SC and White v Troutbeck both in the EAT

[2013] IRLR 286

and also the CA [2014] ICR D5.

c. The third limb is a multifactorial or “multiple” test in which no one factor is likely to be conclusive. Mutuality of obligations and a right of control are necessary preconditions of a contract of employment, but they are not necessarily sufficient in themselves. The level of control and the degree of mutual obligations might be relevant as well as a host of other factors, such as arrangements for tax and national insurance, the degree of integration into the business, descriptive labels adopted by the parties and the provision of uniform, tools and equipment. The degree of personal economic risk, or the chance of profit may also be important. See generally Hall (Inspector of Taxes) v Lorimer

[1994] ICR 218

, CA, for the need to paint a picture from an accumulation of detail. Application of legal principles to the facts

[49]On the facts as I have found them, I do not regard this as a borderline or difficult case. There was plainly a contract of employment. I will set out my findings on the three limbs of the RMC test.

[50]The claimant was engaged to do work that the practice needed to be done. There is no cogent evidence that anyone else was doing that work, or that it was left undone. In exchange, she was paid. Those are the mutual obligations at the heart of any work/wage bargain. The claimant was engaged to do that work personally. There was no right of substitution, and the obligation was to provide personal service.

[51]There was sufficient control for there to be a contract of employment. The claimant’s line manager was Sandra Grant and she directed and monitored the claimant’s work. Sandra Grant was required to authorise annual leave.

[52]The claimant was integrated into the practice, carrying out genuine and meaningful work focussed largely on chronic disease for about 3.5 years. The claimant had access to the respondent’s IT system and formed part of the team effort. She interacted with patients on behalf of the practice and was implicitly held out to patients as being part of the team. She was not portrayed as an independent contractor. Tools and equipment are not a powerful factor given the limited role of tools and equipment in the work the claimant usually did. There was an undertaking to pay for her laptop, though that did not actually happen. When the claimant attended clinics she did so on the respondent’s premises and used the respondent’s other facilities. The claimant had no share of the business profits and she bore no personal risk of loss if the activities of the practice, or her own activities on behalf of the practice, failed to make money. The claimant was paid a salary calculated from an hourly rate, and it was described as a salary. She did not submit invoices. The arrangements for tax, national insurance, pension contributions, approval of leave, and the applicability of disciplinary and grievance procedures were all consistent with a contract of employment. While nothing was written down, both the claimant, Sandra Grant and the first respondent genuinely regarded the relationship as being one of employment, and Sandra Grant regarded it as a continuation of a previous employment relationship.

[53]For those reasons I am satisfied not only that the necessary preconditions of a contract of employment were present, but also that the overwhelming weight of the other relevant factors also suggested a contract of employment. That is my finding. The claimant was an employee as defined by section 230(1) and (2) of the Employment Rights Act 1996 and therefore also a worker as defined by section 230(3)(a) of the same Act. Who engaged the claimant?

[54]I am satisfied that Sandra Grant engaged the claimant on behalf of the practice and was properly authorised to do so. On any view, it was well within the scope of her ostensible authority and on my findings of fact she was also expressly authorised by both partners to employ the claimant. That means that the employer was the practice, which in legal terms includes the fourth respondent as the partnership itself and the first and second respondent as jointly and severally liable partners in that partnership. Partners are bound by acts done on behalf of the partnership, and section 6 of the Partnership Act 1890 provides that: “An act or instrument relating to the business of the firm done or executed in the firmname, or in any other manner showing an intention to bind the firm, by any person thereto authorised, whether a partner or not, is binding on the firm and all the partners. Provided that this section shall not affect any general rule of law relating to the execution of deeds or negotiable instruments.” Counterargument based on the partnership “Heads of Terms”

[55]The counterargument of the second and third respondents is based on a handwritten document headed “HOTS” (meaning heads of terms) signed by both partners on 12 March 2016. The original joint intention was to draw up a more detailed partnership agreement reflecting its terms, but that never happened. I do not accept the first respondent’s submission that is it merely an agreement to agree, of no legal effect. The wording does not support that construction. Even if the handwritten “Heads of Terms” lacks the full detail of a professionally drafted partnership agreement it is nevertheless powerful evidence of matters which were agreed between the partners. The most important clause for present purposes was 10, “All employment issues are to be agreed between both parties, taking the practice’s best interests into consideration.”

[56]On a practical and commonsense reading those words are wide enough to include hiring and firing staff. In my assessment that interpretation reflects intention of the parties at the time of contracting. However, on my factual findings that clause was satisfied because both partners authorised the claimant’s recruitment. There was no breach. However, I will go on to consider some other possibilities for completeness given the other submissions made on this point. Actual and ostensible authority

[57]Mutual agency between partners is a normal incident of the relationship of partnership. I rely on paragraph 12-01 of Lindley and Banks on Partnership, 21st edition, quoting Lord Lindley: “Every member of an ordinary partnership is its general agent for the transaction of its business in the ordinary way; and the firm is responsible for whatever is done by any of the partners when acting for the firm within the limits of the authority conferred by the nature of the business it carries on. Whatever, as between partners themselves, may be the limits set to each other’s authority, every person not acquainted with those limits is entitled to assume that each partner is empowered to do for the firm whatever is necessary for the transaction of its business…”

[58]This is now reflected in section 5 of the Partnership Act 1890: “Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership; and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority, or does not know or believe him to be a partner.”

[59]Paragraph 12-05 of Lindley and Banks emphasises, “It goes without saying that an express restriction on a partner’s authority which has been included in the partnership agreement will be of little or no relevance under the second limb unless it is actually brought to the attention of third parties dealing with him.”

[60]Even if the claimant’s recruitment had been authorised by the first respondent alone, I find that the partnership would still have been bound by the resulting contract of employment. Unilateral action might be a breach of the partnership agreement exposing one partner to a claim by the other, but the agreement between partners did not specify the consequences of a breach so far as third parties were concerned and, importantly, did not purport to limit the authority of the partner in default, or any person such as Sandra Grant to whom power was delegated. In those circumstances, and in the absence of clear words, I find that the partnership would still have been the employer even if the claimant’s recruitment had not been authorised by both partners. Sandra Grant would still have been acting within the scope of her ostensible authority. The claimant was entitled to rely on that, in accordance with section 5 of the Partnership Act 1890. Adoption/waiver

[61]Finally, and even if the first respondent had acted unilaterally and I am wrong about the correct interpretation of the agreement between the partners, I find that the second respondent waived any breach of the Heads of Terms by the first respondent and adopted any act that exceeded the scope of his authority as agent for the partnership. That is because although the second respondent had formed the view that the claimant was engaged on a “sham contract” by March 2022, she continued to accept the situation and allowed it to continue for another two years. Assessed objectively, I regard that as persuasive evidence that the second respondent accepted the position.

Summary

[62]For all those alternative reasons, I find that the claimant was employed by the partnership (the fourth respondent) and that the contract also bound the partners, (the first and second respondent) by virtue of section 6 of the Partnership Act 1890. Termination

Facts

[63]The partners agreed in writing that the claimant should be “off payroll from 1 May 2024”, but what was communicated to the claimant? The relevant conversation took place between the claimant and the first respondent at the end of April 2024. The first respondent wished to soften the blow not least because he knew that his sister was pregnant, and I find that he used ambiguous language. It was objectively ambiguous, and it also appeared ambiguous to the claimant.

[64]The first respondent advised the claimant to stop working and to stop logging in. He did not used the words such as “terminated”, “dismissed”, “fired” or anything similar. He communicated that her work should stop. He said to the claimant “bear with me” in the context of an ongoing dispute between the partners. He accepted in cross-examination that he might not have communicated what he intended to, i.e. that the employment relationship was coming to an end. He accepted in cross-examination that the claimant might have been left with the impression that the situation was not, or not yet, permanent. Importantly, there was no letter or email confirming the termination of the claimant’s employment in writing. She did not at that stage know that the payments of salary would be permanently stopped after April 2024.

Legal principles

[65]The test of whether ambiguous words amount to communication of a dismissal is objective. All the surrounding circumstances and the nature of the workplace must be considered. If the words are still ambiguous the tribunal must ask how a reasonable employee would have understood those words in those circumstances. Any ambiguity must be construed against the party seeking to rely on it (in this case, the second and third respondents). See generally paragraphs 1.18 and 1.19 of the IDS Handbook Volume 15 and paragraphs 10.6 and 10.7 of Volume 3.

[66]Dismissal (at least for the purposes of unfair dismissal) takes effect once an employee has had a reasonable opportunity to find out that she has been dismissed (Gisda Cyf v Barrett

[2010] ICR 1475

, SC). Reasoning and conclusion

[67]Applying that approach to my findings of fact, I conclude that the claimant was not dismissed at the end of April 2024. That is because the words used by the first respondent in a short conversation with the claimant were ambiguous. There was nothing about the context which made it sufficiently clear that the instruction not to log on or work was permanent, and that the claimant’s contract was therefore at an end. The words used were equally consistent with a temporary crisis during a partnership dispute, a dispute which might be resolved. I do not think that a reasonable employee in the claimant’s position would have understood the first respondent’s words to amount to the communication of a dismissal in all the circumstances. The ambiguity must be resolved against the parties seeking to establish a dismissal on that date.

[68]The first time that the claimant failed to receive her normal salary was in the pay round due on 31 May 2024. However, there was still no letter or other written confirmation of dismissal. The situation therefore remained ambiguous for the reasons given above.

[69]The claimant certainly believed that she had been dismissed by 12 August 2024 when she wrote a grievance letter referring to a “recent dismissal”. By then, she had received her P45 but none of the parties suggest that the date of termination is correctly recorded on that P45, which gives a termination date of 31 May 2024. The P45 is dated 3 June 2024 but it is not clear when it was sent. The claimant’s evidence was that it was received by her on 31 July 2024. I accept that evidence.

[70]I find that the earliest date on which the claimant’s dismissal was unambiguously communicated to her was 31 July 2024. The P45 received on that date could not have the effect of backdating the end of employment to 31 May 2024, and in fairness none of the representatives suggested that it could have that effect. The date of dismissal was therefore 31 July 2024.

[71]In reaching that conclusion I was not attracted to the third respondent’s submission that this was a Hogg v Dover College

[1990] ICR 39

, EAT, type of dismissal, as a result of the unilateral imposition of radically different terms. I find that there was nothing which clearly and unambiguously communicated to the claimant that the terms of her contract were changing on a permanent basis. The words used were equally consistent with a potentially temporary and soluble dispute between partners which had led to a suspension of the obligation to work and a suspension of the obligation to pay. Jurisdictional time limits

[72]Given my findings that:a. the effective date of termination was 31 July 2024; and the undisputed facts that

b. early conciliation commenced on 9 August 2024 and ended on 20 September 2024 for the first, second and fourth respondents, and

c. early conciliation commenced on 14 October 2024 and ended on 16 October 2024 for the third respondent; a claim form (ET1) received by the Tribunal on 18 October 2024 was received within the applicable limitation period. The Tribunal has jurisdiction to consider the complaints.