Background:

The claimant came into contact with the respondent in or around the end of 2016 or start of 2017.  This arose on the basis that the second respondent and his siblings live in North America and were unable to carry out the caring responsibilities for the first respondent, now deceased.

The claimant’s role in caring for the respondent was only agreed in outline and the day-to-day detail was left to the claimant to resolve.   The claimant’s rate of pay and arrangements were arranged by the second respondent who paid her from his online banking from his home in New York.   The pay fluctuated depending on the needs.  No deductions were made for tax/national insurance nor was there any provision for sick pay, maternity or pension contributions.  The claimant was able to provide stand-in cover should she be unable to meet some of the duties. This was especially prevalent when the claimant was not working due to pregnancy.

The claimant completed tax returns availing of the right to deduct expenses incurred and during the Covid pandemic she received grants under the Self-Employment Income Support Scheme.  By virtue of being the respondent’s appointee she made a bank account from the first respondent’s account diverting her benefits into that account.  This was used to pay other carers. This caused alarm with the family who asked for bank statements which the claimant never provided.  This soured the relationship and the claimant informed the family in July 2020 that she would no longer be the carer.

She brought an action for unfair dismissal.

Outcome:

The main issue for the Tribunal was whether the claimant was an employee and could avail of the right not to be unfairly dismissed.   To this end, the Tribunal found that the claimant’s assumption of power and exercise of that power was inconsistent with a contract of employment existing. This was further true by the tax arrangements and the fact that the claimant declared herself as self-employed for the purpose of grants during the pandemic.  The claimant asserted that the lack of deductions was an ‘error’ but the Tribunal found that it accurately reflected the position of the parties. Accordingly, it was found that the claimant was self-employed and could not avail of any action vis-à-vis unfair dismissal.

Practical Guidance for Employers:

This is yet another case relating to the classification of individuals into employee, worker and self-employed status.  In this case, the various elements that have been well set out were outlined by the Tribunal and tested against the facts.  An interesting aspect was the fact that the claimant had registered as self-employed and had applied for the income support schemes available through the pandemic.  This allowed for a decision to be made that the claimant was self-employed and did not have the protection against unfair dismissal.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/