The claimant alleged that for a period of almost 4 years she was employee of the respondent and that she had been employed throughout that period as a trainee hairdresser. The respondent contended that during this period she had been a student on placement from a Further Education College. The claimant alleged unlawful harassment, unlawful direct discrimination and constructive unfair dismissal.

Employee or student on placement?

The overarching issue for the tribunal to determine was the nature of the employment relationship (if any) between the claimant and the respondent and, in particular, whether the claimant had been a student in receipt of an Education Maintenance Allowance (ESA) funded by central government. The tribunal identified that there was no relevant case-law on this point and treated this as an issue of fact.

Both parties accepted that the claimant voluntarily received £20-£25 per week from the respondent, despite no actual contractual entitlement. In the ‘Delivery Agreement’ between the parties the respondent was referred to as the ‘Employer’ but, significantly, the claimant was known as the ‘participant’ and the agreement specifically stated that the relationship was not one of employment. 

A second ‘Delivery Agreement’, which came into existence over two years later, was somewhat different in that it mentioned a ‘contract of employment’ ‘minimum wage’ and referred to the claimant as an ‘apprentice’ and not a mere ‘participant’. Whilst the tribunal bemoaned the real lack of contemporaneous documentation, it held that the EMA payments made to the claimant were significant. The wording of the scheme which states that it assists those who: ‘have not yet secured paid employment and who still possess training entitlement’ was strong evidence. Based on this, the tribunal held that the claimant did not have the necessary 52 weeks of continuous service to ground such a claim. The tribunal concluded that the claimant had instead been a student on placement from the College.

Practical lessons 

There were serious matters of unfair dismissal, sex discrimination and sexual harassment which were dismissed in this case, but it is significant for providing clarity on the status of students on placement from a Further Education College. Interestingly, the ‘Delivery Forms’ which appeared to set out the working relationship were not afforded much deference by the tribunal with the EMA information much more persuasive. The tribunal ostensibly equated the period when the claimant was in receipt of EMA as precluding her from ever possibly being an employee.