Ms Gwendo Minto v Perth and Kinross Council: 4114216/2019
| Judgment Date | 11 December 2020 |
| Citation | 4114216/2019 |
| Published date | 20 January 2021 |
| Court | Employment Tribunal |
| Subject Matter | Breach of Contract |
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case Number: 4114216/2019 (V)
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Hearing held remotely on 24 and 25 November 2020
Employment Judge D Hoey
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Ms Gwendo Minto Claimant
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Represented by:
Mr Hardman
(Counsel)
Instructed by
Messrs Kippen
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Campbell
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Perth and Kinross Council Respondent
Represented by:
Mr McGuire
(Counsel)
Instructed by
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Respondent
JUDGMENT
1. As the claimant was not an employee in terms of section 230 of the
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Employment Rights Act 1996, her claim of unfair dismissal is not well
founded and is dismissed.
Case No.: 4114216/2019 Page 2
2. The respondent was not in breach of contract by ending the relationship
and so the claim of wrongful dismissal (notice pay) is not well founded
and is dismissed.
3. The claim for holiday pay is not well founded and is dismissed.
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REASONS
1. The claimant lodged a claim for unfair dismissal, holiday pay and wrongful
dismissal/notice pay on 10 December 2019 with early conciliation being
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commenced on 14 October 2019 with a certificate issued on 14 November
2019.
2. The hearing was conducted remotely via CVP with the claimant and the
respondents’ counsel attending the entire hearing, with witnesses attending
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as necessary, all being able to be seen and heard, as well as being able
themselves to see and hear. There were a number of breaks taken during the
evidence. The Tribunal was satisfied that the hearing had been conducted in
a fair and appropriate manner, with the practice direction on remote hearings
being followed, such that a decision could be made on the basis of the
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evidence led.
3. The issues to be determined were agreed to be firstly whether the claimant
was an employee in terms of section 230 of the Employment Rights Act 1996.
Secondly, if so whether she was unfairly dismissed and thirdly, if so, what
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remedy should be ordered. The claimant confirmed that she was seeking
reinstatement which failing reengagement and compensation.
4. The parties agreed that the claims for wrongful dismissal and holiday pay
were both contingent upon the success of the unfair dismissal claim.
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Facts
5. I am able to make the following findings of fact from the evidence presented
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to the Tribunal. The following findings are only in respect of the facts
necessary to determine the issues.
Background
Case No.: 4114216/2019 Page 3
6. The respondent is a local authority which is responsible, on behalf of the
Registrar General for Scotland, for the conducting and registration of
marriages within the local authority area. Until 2002 civil marriages had to be
conducted within the respondent’s offices but the law changed to allow
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marriages to be conducted elsewhere.
Registration team
7. The registration team within the respondent is responsible for ensuring
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statutory functions in relation to births, deaths, marriages and citizenship
issues are properly dealt with. The team comprises 7 registrars (who are
each employees, 4 of whom are full time and 3 part time) and a clerical
assistant. Some of the registrars are also on the casual worker list and assist
with ceremonies outside the office. The casual worker list is often known as
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the “supply list”. There are 26 marriage officers and 6 attendants on the
supply list. Marriage officers are able to conduct the marriage attendant role
(but not vice versa).
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8. Ms Lorimer was registration services officer, to whom the 7 registrars report
and Ms Lorimer reported to Ms Flynn, democratic services manager.
Casual worker list
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9. Given the changes introduced 2002 that allowed ceremonies to be conducted
in other places (aside from the registry office), the respondent decided to
recruit a team of what it considered to be casual workers onto a casual worker
list. Those individuals would be recruited and trained to become marriage
officers (and marriage attendants) and could be called upon as needed by
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the respondent, and if available, to conduct marriage ceremonies.
Claimant recruited as casual worker – 2002 contract
10. On 22 November 2002 the claimant was recruited as a marriage attendant
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for the respondent ostensibly as a casual worker and on 30 November 2002
the claimant signed a document entitled “Supply Worker’s Agreement” which
stated that: “This document confirms that you have been accepted onto Perth
and Kinross Council’s Supply Register. Acceptance onto the list does not
guarantee a work placement within the Council. However, any placement
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