Mrs P Sutherland v G & L Enterprises and Food Creations (Bathgate) Ltd: 8001918/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001918/2024Venue EdinburghHearing 2, 3 and 4 July and 13, 14 and 15 August 2025
Between
Mrs P SutherlandClaimantG & L Enterprises and Food Creations (Bathgate) LtdRespondent
Before
Employment Judge M SutherlandMs I Ismail, Counsel for respondentMr T Muirhead for respondentSenior Tribunal (instructed by Advocate) for respondentDate 9 December 2025
JUDGMENT
The judgment of the Tribunal is that –a. The claimant was performing the kilt administration work as an employee under a contract of service with the first respondent.b. The claimant was performing the Duntarvie Castle venue work as a self- employed contractor under a contract for services with the first respondent (and was not an employee or a worker).c. The claimant’s contracts with the first respondent did not transfer to the second respondent and accordingly the claim against the second respondent is dismissed.
REASONS
[1]The claimant has presented a complaint that her employment had transferred from the first respondent to the second respondent in June 2023 and her dismissal on 6 August 2024 amounted to maternity discrimination (she was dismissed because of her maternity leave and not because of redundancy). An open preliminary hearing was arranged to determine whether the following issues:a. What was the claimant’s employment status with the first respondent in relation to(a) the wedding event activities; and(b) the kilt hire business?b. If the claimant was an employee of the first respondent, did that employment come to end because of redundancy? If so when?c. Was there a relevant transfer of the claimant’s employment from the first respondent to the second respondent?[2]In relation to issue a., it was not in dispute that the claimant was employed initially by GTHC and latterly by G & L (the first respondent) in relation to the kilt admin work (which included kilt hire). It was however in dispute as to whether the claimant had employment status in relation to the Duntarvie Castle venue work (which included the wedding event activities).[3]Following discussion with the parties it was determined that issue b. would not be determined at the preliminary hearing because it entailed consideration of the reason why she was dismissed.[4]The claimant appeared on her own behalf. The first respondent had professional representation for the part of the hearing held in July. The second respondent had professional representation throughout.[5]The claimant gave evidence on her own behalf. Lorna Nicholsby and Geoffrey Nicholsby gave evidence on behalf of the first respondent. Simon Preece gave evidence on behalf of the second respondent.[6]Parties had prepared a joint bundle of documents and the claimant also lodged a supplementary bundle.[7]By agreement the parties made written submissions only.[8]The following initials are used by way of abbreviation in this judgment – Initials Name CPD Clay Play Day (the Claimant’s business) FCB Food Creations (Bathgate) Ltd (2nd Respondent) G&L GN and LN t/a G & L (1st Respondent) GN Geoffrey Nicholsby, Partner, G & L GTHC Geoffrey (Tailor) Highland Craft Ltd LN Lorna Nicholsby, Partner, G & L PS Patricia Sutherland (the Claimant) SP Simon Preece, Operations Director and owner, FCB Findings in fact[9]The tribunal makes the following findings in fact –
Background
[10]Geoffrey (Tailor) Highland Craft Ltd (‘GTHC’) operated as a kilt maker and highland dress retailer from 1962 until the company was wound up on 28 September 2023. GTHC was owned by Geoffrey and Lorna Nicholsby (‘GN’ and ‘LN’) who are husband and wife. From around 2017, GTHC operated from Duntarvie Castle (‘DC’) near Broxburn. GN and LN have lived in Oban since 2017. They regularly visited DC until 2020.[11]From 2018 part of the DC grounds were rented out as an events venue by GN and LN trading in partnership as G&L (1st Respondent) under the Duntarvie Castle brand (the ‘DC venue’). Until August 2020 the DC venue comprised a field with a supply of water and electricity. It was hired out as a ‘do-it-yourself’ venue for weddings and other events with the couple or other user arranging for themselves the supply of a marquee, toilets, catering, bar and other services. The couple/ users were provided with a list of preferred suppliers (including Food Creation (Bathgate) Ltd) although they were free to choose their own. In August 2020 G&L built a permanent marquee, with toilets being added in 2022 and subsequently a bar. The claimant’s (PS’s) own wedding in August 2018 was one of the first events held at the DC venue. 2018 to 2020[12]In 2018 GTHC sought to replace an office assistant who undertook kilt admin work and very limited DC venue work (the DC venue was in its infancy and in her communication with PS as client she had signed off as “Events Manager”). PS was approached by GN and LN after her own wedding and asked whether she wanted to promote the DC venue and also to undertake administration work for their kilt business. PS provided a CV which showed that she had been Head of Operations for a UK wide jewellery retail business and previously Area Manager for a UK wide craft retail business.[13]It was agreed between PS, GN and LN that PS would be employed part time by GTHC assisting their office manager with kilt administration work for which she would be paid an hourly rate. It was also agreed between PS, GN and LN that PS would promote the DC venue and be paid 10% commission by G&L for all venue bookings secured and fulfilled and 1% (“10% of 10%”) of the bar proceeds. Prior to first payment it was agreed that PS would be paid through her existing business CPD (a micro business through which she sold handmade clay ornaments). These were verbal agreements and there was no written statement of their terms.[14]PS commenced the kilt administration work for GTHC on 29 August 2018. As agreed the claimant worked 24 hours over 4 days from the office at Duntarvie Castle (‘DC office’).[15]The kilt administration work entailed providing assistance to the office manager, dealing with customers, putting orders together, preparing for and arranging shipping, and allocating incoming stock. The administration work was supervised by the office manager who in turn reported to LN. Although LN managed the kilt administration work she was based in Oban and was not regularly on site. After the office manager left in 2021 the kilt administration work undertaken by PS also included writing up of work tickets, liaising with the workshop, chasing suppliers. After the tailors left in 2022 the focus of the administration role shifted to sale of the remaining stock. LN and GN regarded the work undertaken by PS as exemplary.[16]PS commenced the DC venue work for G & L in 2018 although the first event for which commission was paid was held in 2019. The venue work was undertaken by PS under the Duntarvie Castle (‘DC’) brand using their website, email address, and telephone numbers. PS undertook much of the DC venue work from the DC office and used their computer and landline phone. She was subsequently provided with a mobile phone. Whilst she was permitted to undertake some DC venue work during the 24 hours she worked for GTHC she was expected to work flexibly for GTHC and to make up the time. She did not spend the majority of her 24 hours of salaried time doing DC venue work rather than kilt admin work.[17]The DC venue work undertaken by PS entailed promotion, sales and delivery. No other member of staff performed DC venue work. Promotional work included development and maintenance of the website, organising open days and managing social media. The costs of promotion were met by G & L. The sales work included dealing with incoming enquiries and meeting with prospective clients. If the promotion and sales work did not result in a successful booking PS was not paid the commission. If it did, she would receive commission on payment of the deposit and again on payment of the balance. The delivery work entailed fulfilment of the bookings and included meeting with clients, liaising with suppliers, arranging site access and assisting with set up on the day. The weddings were predominantly held on a Saturday. The DC venue which was a part of the G & L portfolio which included other rental properties and construction works that GN managed. The DC venue work was not closely supervised but GN would liaise with PS regarding purchases for the venue or significant promotional work (e.g. the placing of advertisements) which required his approval. GN would also sometimes visit the venue when an event was being held.[18]In 2019 there was 1 DC venue booking for which commission was paid to PS via CPD and 2 such bookings in 2020.[19]The events were seasonal and predominantly took place over 6 months running from April to October (‘the events season’). Invoices were rendered by KS on CPD headed note paper and paid into her personal bank account. The events were predominantly weddings which tended to be booked 1 year in advance. For each wedding the PS would generally spend 2 hours meeting the couple, 2 hours liaising with suppliers, 6 hours setting up the venue and 7 hours attending site on the wedding day (17 hours). 2021 to 2023[20]In May 2021 the office manager left and not replaced. PS assumed some of the office manager duties and LN assumed some. An informal job description was provided to staff which summarised those duties and also noted for PS under the heading G & L “continue G & L work on weddings, etc”.[21]In 2021 GN and LN made the decision to transfer the kilt making business to the House of Kiltmaking Ltd (‘HOKM’) which is partly owned by their son. GTHC’s two kilt makers transferred to HOKM in November 2022. PS was retained to continue with the kilt administration work which focused on selling off the substantial remaining stock.[22]In 2021 there were 2 DC venue bookings for which commission was paid to PS via CPD and 3 in 2022. The DC venue work was affected by the covid-19 lockdowns in 2020 and 2021.[23]In May 2022 it was agreed that PS would be paid a fee of £150 to remain on site to attend to any issues arising during the first part of the wedding (from the couple arriving to the first dance) (‘the site attendance fee’). (Another keyholder took over thereafter.) PS received the site attendance fee for 11 events.[24]Following the increase in work and with GN and LN’s approval, PS arranged for the hire of a temporary events assistant from July to October 2022 who was employed by GTHC to assist with kilt administration and DC venue work. 2023 to 2024[25]In 2023 there were 11 DC venue bookings for which commission was paid to PS via CPD and 5 in 2024.[26]On 1 April 2023 the employment contracts of two remaining staff of GTHC (including the claimant) were transferred to G & L so that GN and LN did not have to operate two separate pay rolls.[27]On 17 April 2023 PS advised GN and LN that she was pregnant.[28]In May 2023 PS and GN discussed the need to arrange cover for the DC venue work during her maternity leave and it was agreed she would draft an advert. On 22 May PS provided a checklist of the DC venue work which included reference to an “on the day wedding coordinator”. DC asked her not to proceed with the advert.[29]Food Creation (Bathgate) Ltd (‘FCB’) were on G & L’s list of preferred suppliers given to couples/users of the DC venue although users were free to choose their own. FCB are a large catering company who employ at times over 100 staff and provide catering for a number of venues around Scotland. In around June 2023 FCB were approached by GN and LN to undertake the DC venue work. It was agreed that FCB would become the sole caterer (rather than a preferred supplier) in return for performing much of the DC venue work and G&L would receive commission on the catering. FCB delivered the catering and management package under the DC brand for around 1 year.[30]In June PS was advised that FCB would be undertaking the DC venue work. On 16 June PS called Simon Preece (‘SP’) who is the Operations Director and owner of FCB. During the call he advised her that there would be a role for her a FCB following her return including work at other FCB venues. SP had assumed that PS was employed as the DC events manager. FCB have taken over operation of a number of businesses and he was aware of the implications of TUPE. FCB were also looking for good events managers. On 17 June PS emailed G & L querying why she would be returning to FCB after her maternity leave when “I am a G & L employee and my role was based at the castle”. They advised that her rights as an employee remained with G & L following the TUPE transfer from GTHC. Separately G & L contacted SP to advise that the DC venue work was performed by PS on a self-employed basis and he was shown that she was paid under invoice to CPD. Following that explanation SP was satisfied that she did not perform the work as an employee.[31]In July 2023 PS was asked to transfer from G & L back to GTHC. GN and LN understood that PS should not have transferred to G & L because the kilt stock being sold off by PS was owned by GTHC and not G & L. PS refused and she remained on the G&L payroll (bar one month’s wages). PS sought to confirm in writing that the transfer pertained to her events coordinator role (the DC venue work). G & L noted in response that this role was with G & L and always has been. PS also asked whether there were any plans to sell, close down or liquidate the kilt business. LN replied advising there were currently no plans to shut down but they don’t know what the future holds; while they have so much stock to clear the company will continue to trade; and that if there was a redundancy at the end of the day it won’t matter whether she was working for GTHC or G & L.[32]On 19 July 2023 LS stated: “I understand the commission based side has always come from G&L but in terms of duties during my 24h I was always told that i could complete venue duties alongside the kilt business duties i.e. website/social media/ appointments/wedding setups etc. This was further confirmed when Geoff told me when that my role was being TUPEd over to G&L when he said that as the kilt business faded out my time would transfer over to the events 100%. As you can agree, if the role is based on the level of website sales and the fact there is a finite amount of product that would result in me agreeing to a role that most likely would disappear.” (The reference to “website sales” and “product” was to kilt sales.) On 23 July LN wrote “It may be that you do event planning when working for GTHC, this can continue whichever company you work for and you still have your statutory rights”.[33]PS was absent from work with G & L from 4 September 2023 until 22 July 2024 (initially because of holidays and then subsequently because of maternity leave). She was paid holiday pay and statutory maternity pay based upon her 24 hours salaried pay and not her commission.[34]The start of her maternity leave coincided with the end of the 2023 events season. During her leave PS attended a wedding day on 7 October 2023 and the site attendance fee was paid. During her leave she liaised with FCB to provide them with information regarding the DC venue work including details of bookings and contacts.[35]In September 2023 FCB publicly announced that that they would be managing bookings, running events and be sole caterers at DC. In respect of DC venue bookings made by PS before she went on maternity leave for events arising thereafter, PS was paid commission on the deposit only (i.e. for securing but not delivering the booking) (with the exception of the first event for which she was paid in full).[36]GTHC was wound up by the liquidators on 28 September 2023 and the kilt business ceased to trade.[37]On 5 July 2024 PS asked to meet with LN to discuss her return to work. On 7 July LN sent a whatsapp which included a statement “Regarding the wedding job – we had no option but to do a contract with FCB to run the whole show, therefore I am sorry to say, we will have to discuss making you redundant.” This was confirmed by email on 16 July: “FCB is now handling the whole business and therefore there is no job for you to come back to, which is why I said we need to discuss making you redundant.”[38]On 6 August 2024 PS was dismissed by G&L by stated reason of redundancy because the kilt business has gone into liquidation and is no longer trading. PS did not undertake any work from the end of her maternity leave on 22 July 2024 until her dismissal on 6 August 2024. She was paid redundancy pay based upon the salary she received for the 24 hours kilt admin work and not based upon the commission for the DC venue work.[39]By the time of termination PS was paid an hourly rate of £13 for the 24 hours salaried work (£16,224 a year). By the time of termination she had been paid a total of about £10k of commission on the DC venue work over 5 years.[40]In September 2024 G & L sought a change of direction for the DC venue and the site is now available for commercial lease. Observations on the evidence[41]The standard of proof is on balance of probabilities, which means that if the Tribunal considers that, on the evidence, the occurrence of an event was more likely than not, then the Tribunal is satisfied that the event did occur. Facts may be proven by direct evidence (primary facts) or by reasonable inference drawn from primary facts (secondary facts). Wedding coordination services[42]The parties were largely in agreement as to the nature of kilt administration work and the DC venue work undertaken by PS. The only exception to this was the extent to which PS provided wedding coordination services particularly on the day of the event.[43]GN stated in evidence that PS was paid £150 to remain on site to attend to any issues with the venue arising during the first part of the wedding (from the couples’ arrival to the first dance) and that another keyholder took over thereafter and was also paid the same fee. PS stated in evidence that she was only paid that fee if her working time exceeded 24 hours prior to the event. That was not considered likely because there was no other evidence to this effect e.g. there was no evidence of her detailing her hours worked when seeking payment of the £150 and instead she appeared to receive this payment regardless of her hours.[44]PS also stated in evidence that the £150 was not simply a fee for attending on site but was in fact for wedding coordinator services provided on the day of the event.[45]PS stated in evidence that she was not paid the site attendance fee for local events (schools proms, gala days) but she still undertook additional hours of work. Some of the local events took place during her 24 hours.[46]PS referred in evidence to an advert on DC website promoting the venue which she said had been on the website since she started in 2018 and which referred to an on the day wedding coordinator. The screenshot was dated 17 April 2025. The advert referred to a marquee, toilets, bar and ‘moongate’ prop and accordingly must have been placed in or after 2022.[47]PS referred in evidence to a draft of the coordinator role she had prepared in May 2023 prior to her maternity leave which described on the day wedding coordination services. PS also relied upon job advert she had drafted around the same time for maternity cover which stated that the wedding coordinator role entailed “forming plans with couples for the running of their day” and the role was to be paid an hourly rate plus commission. G & L asked her not to continue with the advert firstly because it described wedding co-ordination services that G & L were not providing and secondly because the work did not attract an hourly rate. GN stated in evidence that they were a DIY events venue and it was open to a couple to procure separately the services of a wedding planner and it was open to PS to provide those services directly and to charge them for it. PS did not provide services as a wedding planner to any couple although she did on one occasion charged a couple separately for use of a ‘moongate’ prop which she had supplied to the venue in 2022.[48]In the circumstances it was considered likely that the £150 was a site attendance fee and whilst PS provided some limited wedding co-ordination services including on the day it fell short of the full coordination services that would be provided by a wedding planner. Work undertaken within her 24 hours of salaried time[49]The parties were in dispute as to whether the DC venue work was undertaken within her salaried 24 hours with the permission of GN and LN and whether this amounted to all of her work by at least September 2024.[50]PS undertook much of the DC venue work from the DC office and used their computer and landline phone. She was subsequently provided with a mobile phone. It is considered likely that the promotion and sales work took place within office hours. PS stated in evidence that it was agreed from the beginning that that she could undertake the DC venue work for G & L during her 24 hours a week of salaried time paid for GTHC. GN and LN denied this stating in evidence that the 24 hours salaried time was for the kilt admin work; whilst she was permitted to do DC venue work from the office, she was expected to work flexibly and to make up any significant time spent on DC venue work during kilt admin hours.[51]Both GN and LN stated in evidence that the commission paid by G & L was remuneration for undertaking the DC venue work (conditional upon securing a paid booking). PS initially denied this stating in evidence that the commission was remuneration for the act of making the booking only which assertion appeared illogical and disingenuous. PS later accepted in evidence that it was remuneration for securing the booking.[52]PS stated in evidence that from the beginning she spent the majority of her 24 hours of GTHC salaried time doing DC venue work for G & L. And whilst the kilt admin work increased following the departure of the office manager, she ultimately spent all of her salaried time doing DC venue work.[53]PS’s evidence was inconsistent about when the kilt admin work ended, sometimes stating she was doing 100% DC venue work by June 2023 and sometimes by September 2023. Whilst this confusion would have been understandable given the passage of time, it was surprising given that her own diary entries that she relied upon clearly showed that she was doing kilt admin work in July and August 2023.[54]Both LN and GN denied that PS spent the majority of her salaried time doing DC venue work. They described in evidence the kilt administration work that required to be undertaken. They stated that the kilt admin work changed over time with the loss of the office manager, with the transfer of the business to their son and his partner, and with the selling off the remaining stock, and with the clear up on liquidation.[55]PS in chief relied upon emails sent to LN with superimposed clock in cards which created the impression that these cards had been attached and indeed she stated in evidence that the cards were scanned to send to LN. According to the clock in cards, which had been edited by hand, she had worked some of her 24 hours on DC venue work. In cross examination it was established that these cards had not been attached to the email but were put in a drawer in the office. The email itself provided details of the hours worked but did not describe whether it was kilt admin or DC venue work. In chief both LN and GN stated that they simply trusted her that this was time spent on kilt admin work and they were not aware that she had included time spent on DC venue work. The clock in cards were destroyed along with other property after GTHC went into liquidation.[56]PS was provided payslips by GTHC (and then by G & L after the transfer) regarding her wages for the 24 hours administration work which showed that tax and national insurance had been deducted. PS provided invoices for the commission (and site attendance fee) on the DC venue work which were paid without deduction of tax. PS stated in chief that she thought that the tax on the commission payments had been paid by G & L. PS knew she was being paid the commission gross and she knew from her payslips that she paid tax and NI on the 24 hours admin work. She advised that there had been a discussion with LN about tax in the context of her pension contributions which she described as ambiguous. She contacted HMRC after she had raised tribunal proceedings and arranged with them for her to pay tax on the commission payments. In the circumstances PS’s statement that she thought that the tax on the commission payments had been paid by G & L was considered disingenuous.[57]At the peak of the DC venue work in 2023, PS spent approximately 4 hours a week on DC venue delivery work (fulfilling the bookings) during the events season (11 events x 17 hours per event / 6 months x 4.3 weeks). PS gave very limited evidence in given in chief regarding the promotional and sales work by contrast to the detailed evidence given regarding the delivery work undertaken fulfilling the bookings. Only when the average hours calculation was put to her did PS assert in response that she spent the majority of her time doing promotional and sales work which was not considered credible in the circumstances. In any event, unlike the delivery work, the promotion and sales work could occur out with the events season. As SP noted in evidence that when FCB took over he formed the impression that this was a very small scale business.[58]In all the circumstances it was considered likely that PS undertook the much of the DC venue promotional and sales work from the DC office during office hours but it was unlikely that PS spent the majority of her 24 hours a week of salaried time doing DC venue work rather than kilt admin work. She was instead expected to work flexibly and make up the time.
The law
[59]An employee is entitled to maternity leave by virtue of the Maternity and Parental Leave etc Regulations 1999. Under Regulation 2 “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment” and ““contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.”[60]The Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) applies only to contracts of employment. Regulation 2 provides that: ““employee” means any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services and references to a person’s employer shall be construed accordingly”. Under Regulation 3 a relevant transfer occurs where there is the transfer of an economic entity which retains its identify or where there is a service provision change including from one contractor to another. Regulation 4 provides that the employment contract of anyone assigned to the organised grouping shall transfer to the transferee.[61]Section 18 of the Equality Act 2010 in summary provides that a person discriminates against a woman if they treat her unfavourably because her pregnancy during her statutory maternity leave or because she has exercised her right to statutory maternity leave. Section 83 of the Equality Act 2010 provides that: ““Employment” means—(a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work.” The appeal courts have repeatedly held that there is a requirement for sufficient subordination i.e. control, which achieves the same result as the exclusion under the Employment Rights Act 1996 of those who are carrying on a professional or business undertaking and providing personal services to a client or customer (Uber BV v Aslam [2021] UKSC 5).[62]An employment contract is a contract to give service rather than to provide services. The classic description of a contract of employment found in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance 1968 1 All ER 433, QBD provides for a multifactorial approach. However there requires to be an irreducible minimum entailing: mutuality of obligation; personal performance; and sufficient control (Nethermere (St Neots) Ltd v Gardiner and anor 1984 ICR 612, CA and endorsed by Carmichael and anor v National Power plc 1999 ICR 1226, HL). Furthermore all other factors must be consistent with it being a contract of employment rather than a contract for services (Ready Mixed).[63]A contract of employment does not require to be in writing. In considering any contractual documentation the issue is whether it represents the true intentions of the parties gleaned from all the circumstances given the likely inequality of their bargaining power (Autoclenz Ltd v Belcher [2011] UKSC 41). Given the need for a purposive interpretation in the context of assertion of a statutory right, the focus is on the reality of the situation (Uber BV v Aslam [2021] UKSC 5). Mutuality of obligation[64]Any contract to perform work requires mutuality of obligation to undertake work for remuneration. During the subsistence of that contract the first strand of the irreducible minimum is satisfied regardless of its duration and notwithstanding that it is terminable at will (Cotswold Developments Construction Ltd v Williams [2006] IRLR 181, EAT and Prater v Cornwall County Council [2006] 2 All ER 1013 CA). Personal Service[65]The existence of a contract of employment contract requires personal performance of the work and any limited right to provide a substitute, properly construed, must be such that it is not inconsistent with that requirement (Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51, [2017] IRLR 323). Control[66]A contract of employment depends upon their being sufficient control of when and how to do the work which is commensurate with the nature of the work.[67]Control may mean ultimate control rather than day to day control especially where skilled or senior employees may be given substantial autonomy (White v Troutbeck SA [2013] IRLR 949, CA). Other factors[68]Other factors affecting the relationship must be consistent with it being a contract of employment rather than a contract for services. Other relevant factors include but are not limited to: the nature of remuneration; the degree of risk borne; the extent of organisational integration; and the categorisation by the parties. A check list approach should not be adopted in relation to these other factors and the tribunal must stand back from the accumulated detail and consider the overall picture (Hall (Inspector of Taxes) v Lorimer [1994] IRLR 171, CA). Parties’ submissions[69]The claimant’s submissions were in summary as follows -a. She was told by the first respondent that her role was a dual one comprising the DC venue work and the kilt admin workb. She was remunerated with a 24 hours base salary, plus commission plus £150 fee.c. The respondent failed to comply with a legal obligation to issue her with a written statement of her terms of employmentd. The first respondent had two other employees who undertook DC event work (an Events Manager prior to her appointment and an Events Asssistant during her appointment)e. If the commission was paid for the DC venue sales (as the second respondent submits) then other DC venue work was unpaid (apart from the site attendance fee).f. She did not know that the commission payments were made on a selfemployed basis until she received all of her payslipsg. The DC venue work was not sporadic and irregular because she was undertaking that work during her 24 hours and was being paid a regular wage for doing soh. She was given instructions to do DC venue work within office hours and did so. She was not managing to do all of the DC venue work within the 24 hours and they agreed to pay £150 whenever these hours were exceeded. She was not paid the site attendance fee for local events (schools proms, gala days) but she still undertook additional hours of work. Some of the events took place during her 24 hours.i. The respondent could have accessed the clock in cardsj. Given the kilt business went into liquidation on 28 September 2023, which was prior to her maternity leave starting, “I’m at a loss to what they are claiming my role still entailed and what, in their eyes, I was being paid maternity leave from.” There was no credible explanation as to why they waited a year to make her redundant.k. She consistently communicated that the DC venue work was part of her paid employment and the first respondent stated that she had statutory rights in relation to her DC venue workl. She was not responsible for arranging cover during her maternity leave – this was arranged directly between the first and second respondent and not with the claimant’s business CPDm. She was paid holidays and given maternity leave from her 24 hours workn. All aspects of running of the DC venue work had to be cleared with themo. They provided all the materials, tools and equipmentp. The first respondent stated that she was redundant because the DC venue work was taken over by the second respondent and there was no job for her to come back toq. The explanation that commission on one of the wedding deposits was paid during her maternity leave “out of kindness” despite taking months to process the paymentr. SP of FCB stated in evidence that they thought they were just covering my maternity leave[70]The first respondent adopted the second respondent’s submissions. In evidence claimant did not give clear answers to straightforward questions.[71]The second respondent’s submissions were in summary as follows – s. The respondent witnesses gave clear and cogent evidence t. The claimant’s evidence on a number of issues was vague and unconvincing (e.g. that the £150 site attendance fee was paid for working in excess of 24 hours; that tax and NI on the commission was being dealt with by the first respondent; that the clock-in cards were sent to LN) u. The claimant made a number of submissions based upon evidence that was not heard (e.g. that her role was dual role) v. HMRC accepted that the claimant was self employed when undertaking the DC venue work w. GN had limited control over the DC venue work – there was only evidence of a few emails pertaining to DC venue work x. The first respondent was not obliged to provide the claimant with a minimum amount of DC venue work y. The DC venue work was essentially rental of the site z. The first respondent’s understanding was that she was entitled to her maternity leave regardless of the redundancy situation aa. The claimant was self-employed (failing which, a worker) bb. There was no transfer under TUPE because: i. The claimant was not an employee; ii. The entity did not retain its identify – pre transfer this was a venue only hire; post transfer this was a catering and venue package. iii. According to the claimant the economic entity comprise both kilt admin work and DC venue work and is therefore affecting by fragmentation Discussion and decision[72]It was not in dispute that the claimant was employed by GTHC and then G & L (the first respondent) when she was performing the kilt administration work. The issue is whether she was employed when she was performing the DC venue work.[73]The burden of proving employment status is upon the claimant.[74]The first element of the Ready Mixed test for employment status requires mutuality of obligation. The claimant agreed to perform the DC venue work and G & L agreed to pay her commission on bookings via CPD and accordingly there was mutuality of obligation between the parties.[75]The second element of the Ready Mixed test for employment status requires personal service. The claimant performed the DC venue work personally and there was no evidence that she had power to provide a substitute or did so.[76]The third element of the Ready Mix test for employment status depends upon their being sufficient control of what, when and how to do the work which is commensurate with the nature of the work. G & L did not have close control of the timing, duration and manner of the DC venue work which was undertaken at the claimant’s discretion, subject to client demands and high level oversight by G & L. However G & L had ultimate control in that they could and sometimes did issue instructions (White v Troutbeck [2013] IRLR 286, EAT and SA EWCA Civ 1171 Court of Appeal, CA). Accordingly there was sufficient control.[77]Even if the irreducible minimum of mutuality, performance and control are met, that is not of itself sufficient for a finding of an employment status. The final element of the Ready Mix test for employment status requires all other factors to be consistent with it being a contract of employment rather than a contract for services. As regards other factors:[78]GN and LN owned two businesses - GTHC which was a kilt business and G & L which was a property rental business. The kilt business operated from the Duntarvie Castle (‘DC’) office. The G & L portfolio included the DC venue (which formed part of the DC grounds).[79]In the summer of 2018 the claimant entered into a contract with GTHC do kilt administration work and with G & L to do the DC venue work (promotion, sales and delivery i.e. securing and fulfilling bookings).[80]The claimant was employed to do kilt administration work by GTHC from 29 August 2018 until her contract transferred to G & L on 1 April 2023. It was agreed that she would do the kilt administration work for 24 hours over 4 days from the DC office. She reported to and was supervised by the office manager. She was paid net of tax and NI in respect of the 24 hours salaried work and received payslips initially from GTHC (and latterly from G & L following the transfer). She was given paid holidays (and ultimately paid maternity leave) initially by GTHC (and latterly by G & L following the transfer) based upon her 24 hours salaried work only.[81]The claimant also entered into a contract with G & L to do the DC venue work. It was agreed that her company CPD would be paid 10% commission for all DC venue bookings. The claimant bore the risk that if no paid bookings were secured she would not be paid for the promotion and sales work she had undertaken. The G & L supplied all of the relevant equipment including the DC venue, and use of the DC office and a mobile phone. The DC venue work was undertaken by the claimant under the DC brand. She was paid the commission (and site attendance fee) gross by G & L following their receipt of an invoice from CPD. She was not given any paid leave (holiday or maternity) based upon her commission.[82]Very limited DC venue work had been previously been undertaken by a past employee of GTHC when the DC venue was in its infancy. Some DC venue work was also undertaken by an employee of GTHC in the 2022 events season. G & L did not employ any staff before the transfer from GTHC in April 2023.[83]The claimant was permitted to undertake some DC venue work during the 24 hours she worked for GTHC but she was expected to make up the time. She did not spend the majority of her 24 hours of salaried time doing DC venue work rather than kilt admin work.[84]The claimant was paid an average of about £2k a year commission by G & L in respect of the DC venue work (roughly £4.5k at its peak in 2023). She was paid a site attendance fee of £150 in respect of 11 events (roughly £1,350 at its peak in 2023). She was paid wages of about £16k a year in respect of the kilt admin work. The DC venue work was therefore small scale in comparison with the kilt admin work.[85]Notwithstanding the irreducible minimum of mutuality, performance and control, standing back and making an informed, considered and qualitative appreciation of the overall effect of all the factors, it is readily apparent that the DC venue work was provided under a contract for services and not of services i.e. the claimant was an independent contractor operating a small business on her own account for which G & L was a client and she was not an employee of G & L (or GTHC) in relation to the DC venue work. And furthermore, she was not a worker because although there was personal service, there was insufficient subordination.[86]Accordingly there was not a relevant transfer of the claimant’s contracts from G & L (the first respondent) to FCB (the second respondent). Firstly, in respect of the kilt admin work, although the claimant was performing that work as an employee, there was not a relevant transfer of the kilt administration work from the first respondent to the second respondent (which the claimant did not seek to argue). Secondly, whilst the second respondent performed much of the DC venue work which had previously been performed by the claimant, there was not a relevant transfer because the second respondent performed the catering (which was central to its business) whereas the claimant had not. As such any economic entity did not retain its identity and/or the activities were not fundamentally the same. In any event, the claimant was performing the DC venue work under a contract for services (selfemployed) and not a contract of service (employment) and her contract would not have transferred regardless.
Conclusion
[87]The claimant was performing the kilt administration work as an employee under a contract of service initially with GTHC and latterly with G & L (the first respondent).[88]The claimant was performing the Duntarvie Castle venue work as a selfemployed contractor under a contract for services at all times with G & L (the first respondent) (and was not an employee or a worker).[89]The claimant’s contracts with G & L (the first respondent) did not transfer to FCB (the second respondent) and accordingly the claim against the second respondent is dismissed.[90]Preliminary issue b. requires to be determined namely did her contract of employment with G & L to perform the kilt administration work come to an end because of a redundancy situation and separate orders shall be issued.[91]As the claimant submitted in advance of the hearing: “With hindsight, I feel much of the confusion in this case has been due to GN and LN’s deliberate resistance to establishing any agreements in writing. In the 6 years I worked for them they demonstrated a pattern of this. I was never provided with a written contract or terms of service for employment despite requesting this. I was told … that no staff in any of their businesses had employment contracts. I was explicitly forbidden by LN to provide clients of the events business with terms and conditions or booking conditions in writing and that I must only discuss these verbally. LN herself told me…that the agreement between FCB and G&L was not in writing but a gentleman’s agreement”.[92]This appeared to be an entirely reasonable assessment of the situation namely that it was LN and GN’s aversion to documenting any contracts in writing that created the confusion albeit confusion upon which PS sought to capitalise. If the arrangements between the parties had been properly documented it would likely have been entirely clear that PS undertook the DC venue work in a self-employed capacity and a hearing on employment status would have been averted. 09-12-2025