A recent ruling has established that temporary worker arrangements do not constitute a single, continuous employment relationship in which workers retain the unfettered right to refuse assignments. This effectively confirms the prerequisite for a mutuality of obligation when accruing tax breaks.

Mainpay engaged temporary workers in the service sector, contending that its employment relationship constituted a single, albeit discontinuous form of employment, effectively rendering its various workplaces transient. Based on this viewpoint, Mainpay reimbursed its workers for travel and subsistence expenses and deducted these amounts from their income for tax purposes. Mainpay also used rounded sums, or benchmark scales, for subsistence expenses without obtaining formal dispensation from HMRC.

HMRC argued that each assignment was a separate instance of employment, making each workplace permanent for the purpose of a given assignment. This meant that travel and subsistence expenses were likely non-deductible without dispensation.

As the two contracts in question (2010 & 2013) were issued more than four years after the relevant tax year, this required HMRC to prove that the loss of tax was "brought about carelessly" by Mainpay so as to justify a six-year extended time limit. The Tribunal ruled in their favour, finding that neither the 2010 nor the 2013 contract constituted overarching contracts of employment, as the workers retained the unfettered right to refuse assignments. This, in turn, meant they lacked the necessary mutuality of obligation in the gaps between assignments. The Tribunal held that each assignment was an instance of separate employment and that the workplaces were therefore, in effect, permanent, making the expenses non-deductible. The Tribunal also found that Mainpay was "careless" in claiming the deductions, particularly in relation to the 2010 contract, because it had relied on vague assurances from employment lawyers.

This contention was escalated to the Court of Appeal, which rejected Mainpay’s argument that the parties’ intention should be decisive in construing the contract, as what essentially mattered was the reality of the arrangement, which was one of intermittent employment. Thus, each assignment was effectively under a separate contract of employment for the purposes of the Income Tax (Earnings and Pensions) Act 2003 (ITEPA) and, therefore, created a permanent workplace. The Court further upheld the finding that the loss of tax was "brought about carelessly" by Mainpay, validating the extended assessment time limit permitted under the Taxes Management Act 1970 (TMA).  

The case provides a clear distinction between a general agreement that governs future work and an actual contract of employment that lays out the terms under which future, separate contracts of employment will be formed. This type of agreement alone does not create a state of continuous employment. Companies are thus advised to seek advice when creating discontinuous employment frameworks in an effort to minimise tax liabilities.

Ms Constantine had been a veterinary surgeon since 2017. Initially, she had worked every day with two half days rest, but this increased to four full days and a weekend every three weeks. Moreover, she was required to seek permission to be absent on those days she was not required to attend work. In November 2020, Ms Constantine began a sickness absence, claiming burnout, and was certified as being unfit to work from 1 December 2020 to 4 January 2021 due to anxiety. In May 2021, a ‘fit for work’ statement recommended one day a week, which was subsequently increased in June 2021 to one and a half days a week, with at least one day off between workdays. 

Following a meeting on 22 June 2022, the respondent agreed to look into issuing a new contract for a three-and-a-half-day week with two in six weekends. A proposed contract with a covering letter dated 24 August 2022 was sent to the claimant with a £23,267 gross salary per annum, which was not in alignment with the agreed basis that it should be based, pro rata, on her previous full-time salary of £44,000 p.a. The claimant contended that the revised salary calculations were severely flawed and effectively constituted a 22.4% pay cut based on a new notional denominator of 260 working days in the form of a ‘take it or leave it’ offer. 

Further, a series of unauthorised wage deductions had been made from May 2021 to 31 July 2023, and Ms Constantine ultimately resigned in 2023, lodging a formal grievance on 14 March 2023, specifically complaining about the basis of the calculations of her pro-rata pay from May 2021, asserting a breach of the Part-Time Worker (PTW) Regulations 2000 and unlawful deduction from wages.

The Tribunal ruled in favour of Ms Constantine, finding an unlawful deduction from wages, constructive unfair dismissal, and unfavourable treatment arising in consequence of disability, and she was awarded a total of £19,017.  Ms Constantine was deemed to have been a disabled person from December 2021 due to chronic fatigue, as the respondent should have known, and the act of proposing a new part-time contract in August 2022 at a disproportionately low salary constituted unfavourable treatment arising from the claimant’s need to reduce her hours due to disability (s.15 Equality Act 2010).

The claim for constructive unfair dismissal was upheld because the respondent had committed a fundamental breach of contract by withholding admitted back pay and making its payment conditional on the claimant agreeing to the proposed future salary. Finally, the Tribunal found that an unauthorised deduction from wages had occurred, applying the Apportionment Act 1870 to set the lawful deduction rate at 1/365th of the annual salary for days the claimant was rostered to work but was absent.

When seeking to reduce an employee's hours, any resulting contract must be calculated correctly on a pro-rata basis in accordance with the PTWs. Employers must prove that any proposed pay revisions are not only fair, but also "necessary and appropriate" to achieve a legitimate business aim. Above all, employers must never deliberately withhold payment in an effort to coerce an employee into agreeing to new contractual terms. Such an act risks breaching the implied term of mutual trust and confidence, creating grounds for constructive unfair dismissal.

Recently, a clear legal precedent confirmed that the nature of an individual's work is determined by the reality of the actual employment relationship rather than by arbitrary titles. Mr. Gooch worked for the British Free Range Egg Producers Association (BFREPA) from 1 November 2011 until 26 April 2024, initially as a Policy Director on a "contracted services basis" for 2.5 days per week. The organisation, originally an unincorporated association, subsequently became an incorporated company in 2023 (BFREPA Ltd.), although the nature of its work was unaltered.

As Mr. Gooch's role evolved, so his compensation increased and, by 2016, he had effectively been promoted to Chief Executive of Services. Throughout his 12.5 years of engagement, he consistently submitted monthly invoices and was paid a retainer due to his self-employed status, without formally establishing a limited company. In February 2023, BFREPA's leadership expressed concern that their arrangement with Mr. Gooch looked remarkably similar to an employment relationship rather than a self-employed contract, even suggesting that the HMRC would likely classify him as an employee.

As a consequence, in March 2023, BFREPA gave him 12 months' notice of termination, and he continued working until April 2024, at which point his email access was disabled, and he received a letter confirming that his contract would not be renewed. Mr. Gooch duly lodged claims against both defendants for unfair dismissal, unauthorised deductions from wages, unpaid holiday, wrongful dismissal for failure to pay statutory notice, and breach of contract relating to pension auto-enrolment. 

The Tribunal ruled that the claimant was a de facto employee, working under a contract of employment as defined by Section 230(1) of the Employment Rights Act 1996, Section 2 of the Working Time Regulations 1998, and Section 88(2) of the Pensions Act 2008. The Tribunal further concluded that personal service was a core requirement of the contract, one which contained no general substitution clause, and that the extent of the control was consistent with an employer-employee relationship for a senior employee alongside other strong indicators of a permanent employment relationship. The contracts also contained restrictive clauses that limited his ability to work for other companies in the same sector, a feature more commonly found in employment contracts than in contracts for service. 

This ruling provides a clear and detailed example of how a tribunal will look beyond the contractual terms to assess whether a person is an employee or a self-employed contractor. Employers cannot rely on a "contract for services" or a person's self-employed status to avoid the legal obligations of an employer. Instead, tribunals will scrutinise key factors such as the mutuality of the obligations, the degree of control, and the extent of integration in the business. Employers who treat long-term contractors like employees—providing them with a fixed monthly retainer, dictating their hours, and effectively integrating them into the business—risk having them reclassified as employees, and HR departments should ensure that contracts reflect the true nature of the relationship to avoid repercussions. 

Mr. Aslam, a former Metroline employee, applied to another bus company on 13 April 2019, disclosing that he suffered from partial hearing loss, depression, anxiety, insomnia and stress, and was interviewed on 14 May 2019. He disclosed that he had been dismissed by his former employer on the grounds of capability and was actively pursuing a tribunal claim.

He was conditionally offered a role and attended induction, although the offer was subsequently withdrawn, and no reference had been obtained from Metroline despite numerous requests. Moreover, he was not allowed to work shifts before he attended induction, while two other candidates were permitted to do so. During the induction process, the claimant emailed the respondent to enquire whether he was being treated differently from the other candidates for the job because of his race. This, coupled with the tribunal claim, had led to a withdrawal of the offer on 20 June 2019. 

The claimant claimed direct race discrimination and victimisation after he had informed the respondent about a tribunal claim against Metroline. The Employment Tribunal found that the job offer had been withdrawn because the respondent believed the claimant was likely to be protected under the Equality Act 2010, Section 27(1)(b) and upheld the claimant’s victimisation claim, although it subsequently reversed its judgement and dismissed the claim. The claimant appealed and the original judgement was reinstated. 

The judgement serves as a clear warning to employers, as withdrawing a job offer or taking other detrimental action based on a person's history of bringing claims, or a perceived likelihood that they may bring one in the future, can itself constitute an act of victimisation under the Equality Act. Employers should tread carefully before weighing pending tribunal cases in their decisions to make or withdraw formal offers of employment.

An extended civil restraint order (ECRO) was issued against a prolific Employment Tribunal (ET) litigant for presenting repeated and baseless claims.

A Mr. Khan has been described as a prolific litigant, having issued no fewer than 42 largely unsuccessful tribunal claims since 2017. These various failed claims have typically involved allegations of disability discrimination and a failure to make reasonable adjustments in recruitment processes. Many claims were struck out for having no reasonable prospect of success or simply as an abuse of process. Only two claims, levelled against solicitors' firms, were settled for "nuisance value payments" of £700 and £1,000. Mr. Khan has also made many unsuccessful applications to adjourn hearings, often on medical grounds, alongside numerous failed attempts to challenge ET decisions.

The High Court granted the claimants’ application for an ECRO, restraining the defendant from issuing or presenting claims or appeals related to job applications in the tribunal system without prior court permission for a period of three years. 

This decision strengthens the mechanisms available to safeguard judicial processes from abuse. It reaffirms that higher courts can step in to protect tribunals from those individuals who repeatedly file baseless claims or appeals without legal merit. This is crucial for preventing the system from being overwhelmed by vexatious litigation, ensuring that resources are available for legitimate disputes.

For individuals who represent themselves in court, while the judiciary strives to ensure fairness and assist unrepresented parties, the case firmly reiterates that procedural rules and the fundamental principles of legal merit still apply. It demonstrates that courts will not tolerate the deliberate misuse of legal processes. Thus, employers and their legal counsel should be wary of disgruntled employees with histories of spurious claims and seek to have baseless claims struck out on such grounds.