Roua Al Taweel v Stichting Female Journalists Network

An Employment Tribunal must determine an asserted employment relationship objectively, by reference to the usual employment-status criteria and the reality of the working arrangements. A statement in company records that an individual is its employee, and an apparent concession in cross-examination, do not alone establish that status.

Although an individual cannot ordinarily be employed by two employers simultaneously in respect of the same work, that principle cannot determine the issue unless the alleged second employment has first been properly established. A company’s insertion into contractual arrangements does not itself end an existing contract of employment.

For continuity of employment, a temporary cessation of work under section 212(3)(b) of the Employment Rights Act requires a backward-looking assessment of all relevant circumstances, including the parties’ expectations when the absence began.

The Claimant brought claims arising from the termination of her work on 30 April 2020. They included unfair dismissal under sections 98 and 104 of the Employment Rights Act, breach of contract, race discrimination and victimisation.

The Employment Tribunal held that she had been self-employed in 2018, an employee of the Respondent during 2019, and not its employee in 2020 because she was then also an employee of her own company, RouaT Limited. It dismissed the unfair-dismissal and contract claims, while allowing the discrimination claims to continue.

The Claimant appealed the findings on her employment status in 2018 and 2020, and on continuity of employment. The central issue was whether the Tribunal had lawfully found that the company arrangement prevented an employment contract with the Respondent in 2020.

1. Appeal allowed in part. The finding that the Claimant was an employee of her own company in 2020 lacked a proper evidential and analytical basis. The Employment Tribunal had treated an apparent admission, founded on company material recording one employee, as sufficient. It should instead have determined objectively whether a contract of employment existed between the Claimant and the company, applying the usual Ready Mixed Concrete criteria and the reality on the ground.

2. The rule that an employee cannot have two employers simultaneously in respect of the same work did not itself resolve the issue. The Tribunal could apply that rule only after properly finding that the Claimant was employed by her company. Its error of law required remittal of the question whether she remained the Respondent’s employee in 2020.

3. The introduction of a company into the arrangements did not, without more, displace an employment relationship. The Tribunal had been entitled to find that, apart from the dual-employment point, the Claimant’s relationship with the Respondent in 2020 remained one of employment.

4. The Tribunal was entitled to find that the Claimant was not an employee in 2018, but became one in 2019. The task-based 2018 engagement, absence of fixed hours and lesser integration were relevant status factors. The different arrangements from 2019 supported the changed conclusion. She therefore could not establish the two years’ service required for an ordinary unfair-dismissal claim under section 98.

5. The challenge to the continuity ruling was no longer determinative. However, the Tribunal had approached temporary cessation of work under section 212(3)(b) incorrectly. It should have assessed the gaps retrospectively against the whole period of work and considered all relevant factors, including the parties’ expectations when the gaps began.

The issue of 2020 employment status was remitted to the Employment Tribunal. The claims under section 104 and for breach of contract remained potentially live; the section 98 claim did not.

• Employment Appeal Tribunal: Allowed the appeal on the 2020 employment-status issue and remitted it to the Employment Tribunal; dismissed the remaining grounds: [2023] EAT 159.
• Employment Tribunal: In a judgment sent on 30 August 2022, held that the Claimant was the Respondent’s employee only from 1 January to 31 December 2019 and dismissed the unfair-dismissal and contract claims.