Mr D Aukett and Ms V Saunders v Sentimental Care Ltd and others: 3201600/2020

Judgment Date06 May 2021
Citation3201600/2020
Published date13 May 2021
CourtEmployment Tribunal
Subject MatterUnlawful Deduction from Wages
Case Number: 3201600/2020 (V)
1
EMPLOYMENT TRIBUNALS
Claimants: (1) Mr D. Aukett
(2) Ms V. Saunders
Respondents: (1) Sentimental Care Ltd
(2) Mr J. Ellis
(3) Ms T. Ellis
Heard at: East London Hearing Centre (by CVP)
On: 19-21 January 2021
Before: Employment Judge Massarella
Representation
For the Claimant: Mr C. Milsom (Counsel)
For the Respondent: Mr E. Kemp (Counsel)
RESERVED JUDGMENT
The judgment of the Tribunal is that: -
1. the Claimants having accepted that they did not work under contracts
of employment, their claims of unfair and wrongful dismissal are
dismissed on withdrawal;
2. the Claimants were not workers within the meaning of s.230(3)
Employment Rights Act 1996 (‘ERA’);
3. the Claimants were not workers within the extended definition in s.43K
ERA 1996;
4. the Claimants’ exclusion from whistleblowing protection is not in
breach of their rights under the ECHR; there is no requirement for a
conforming construction of s.230(3) or s.43K ERA;
5. accordingly, the Tribunal lacks jurisdiction in relation to their claims of
detriment and automatically unfair dismissal on the grounds of making
a protected disclosure, contrary to ss.47B(1) and 103(A) ERA, and their
claims are dismissed.
Case Number: 3201600/2020 (V)
2
REASONS
This has been a remote hearing, which has not been objected to by the parties. The
form of remote hearing was V (CVP). A face-to-face hearing was not held, because it
was not practicable, and all issues could be determined in a remote hearing.
Procedural history
1. By a claim form presented on 16 June 2020, after an ACAS early conciliation
period between 24 April and 9 May 2020, the Claimants complained of
ordinary unfair dismissal, detriment and automatically unfair dismissal on the
grounds of making a protected disclosure, contrary to ss.47B(1) and 103(A) of
the Employment Rights Act 1996 (‘ERA’); and breach of contract (notice pay).
2. At that stage there were four Respondents, including Insight Strategic
Associates Ltd as the Fourth Respondent.
3. On 10 August 2020, a notice of preliminary hearing for case management was
sent to the parties, listed for 19 October 2020. That hearing was later
converted to an open preliminary hearing to address the issue of employment
status, listed for one day.
4. In the ET3 the First, Second and Third Respondents denied that there had
been a change of service provision. In the light of that, the Claimants withdrew
their claims against the Fourth Respondent. The Tribunal acknowledged the
withdrawal, but did not dismiss the claim against the Fourth Respondent; if the
Claimants decide to pursue the claim against it at a later stage, it will be
necessary for them to apply for permission to do so.
5. By a joint application, dated 15 October 2020, the parties applied to postpone
the hearing listed for 19 October 2020, on the ground that one day was not
enough to deal with employment status. It was relisted for three days.
The hearing
6. The parties provided me with a main bundle running to some 970 pages,
although Counsel (Mr Milsom for the Claimant, and Mr Kemp for the
Respondent) assured me that they would only be referring to a fraction of
those documents. There was a small, supplementary bundle of documents
from the Respondents. I spent the morning of the first day reading the witness
statements, and some of the documents, to which they referred; Counsel
confirmed that they would take me to any other documents, on which they
proposed to rely in submissions in the course of cross-examination.
7. At my request, they also provided a joint list of legal and factual issues for
determination, and a joint, electronic bundle of authorities. A timetable for
evidence and submissions was agreed.
8. I heard evidence from Mr David Aukett (the First Claimant), who also relied on
a supplementary witness statement; and from Miss Valerie Saunders (the
Second Claimant). On the second day of the hearing, after the conclusion of

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