With the Employment Rights Bill expected to receive Royal Assent shortly, much of the focus has been on the statutory changes it will introduce. Meanwhile, employment tribunals and appellate courts continue to issue decisions that have an immediate and practical impact for employers and employees alike.

A second autumn employment law update focusing on recent case law developments from the Employment Tribunal can be found here.

'Employee' and 'worker' status

In Partnership of East London Co‑operatives Ltd v Maclean, Maclean, a qualified nurse, provided services for Partnership of East London Co-operatives Ltd (PELC) through a personal service company (PSC), invoicing PELC for the shifts worked. When the relationship ended, Maclean brought claims for unfair dismissal, whistleblowing detriment and holiday pay. To be entitled to bring some of these complaints, she needed to establish that she was either an employee or a worker of PELC.

At a preliminary hearing, the Employment Tribunal (ET) held that she was both an employee and a worker. PELC appealed.

Legal analysis

The Employment Appeal Tribunal (EAT) upheld the ET's conclusion that the contract was with Maclean personally (not her PSC). However, it found the ET’s reasoning on employee status problematic. In particular, it questioned its inference that there was mutuality of obligation – a key element to establish employment – despite documents stating that there was no obligation on PELC to offer, or Maclean to accept,...

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