Mathios Berhane v Adebowale Olujimi & Anor

A tribunal may decide a strike-out application by reference to a final, definitive list of issues where the claimant has clarified and agreed the claims after repeated case-management hearings. Departure ordinarily requires formal amendment, reconsideration or appeal, subject to circumstances such as inadvertent omission or the duty of fairness. Mutuality of obligation is essential to a contract of employment. A zero-hours arrangement imposing no obligation on either party to offer or accept work may support a finding that the claimant is no longer an employee and that the earlier employment ended rather than merely changed.

The claimant worked for the respondents as a driver and personal assistant under fixed-term contracts until 30 April 2022. From 1 May, they entered a zero-hours arrangement; the respondents accepted that he was a worker, not an employee, during that period. The arrangement ended in July. At a preliminary hearing, the Employment Tribunal struck out the automatic unfair dismissal claim, which relied on the April termination, as well as notice-pay and other claims. A definitive list of issues recorded dismissal on 30 April followed by re-engagement on a zero-hours contract. The claimant appealed, arguing that the tribunal had not determined whether his employment continued until July. The Employment Appeal Tribunal considered whether the tribunal erred by proceeding on the basis of that list and by finding that the later arrangement did not involve continued employment.

Appeal dismissed. The Employment Tribunal made no material error of law in striking out the automatic unfair dismissal claim on the basis that the employment ended on 30 April 2022.

1. After three case-management hearings, the tribunal had a final and definitive list of issues, which the claimant agreed captured his claims. That list stated that dismissal occurred on 30 April and described the later zero-hours engagement. In these circumstances, the tribunal was entitled to decide the strike-out application by reference to the list. A departure required formal amendment, reconsideration or appeal. The case did not involve an inadvertent omission or a duty of fairness requiring the tribunal to address a different case. The EAT referred to Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185 and Parekh v London Borough of Brent [2012] EWCA Civ 1630.
2. Independently, the tribunal had considered whether the claimant remained an employee after 30 April when deciding the notice-pay claim. Mutuality of obligation is an essential element of a contract of employment. On the evidence, the respondents had no obligation to offer work and the claimant had no obligation to accept it. The tribunal was entitled to find there was no reasonable prospect of establishing employee status after the revised arrangement began. The EAT referred to Carmichael v National Power plc [1999] ICR 1226.
3. The change from employment to a zero-hours arrangement without mutuality was a fundamental change in the relationship, correctly characterised in these circumstances as a dismissal rather than a variation. Hogg v Dover College [1990] ICR 39 supported that characterisation. The situation described in Cornwall CC v Prater [2006] EWCA Civ 102 was materially different.
4. The tribunal’s mistaken understanding of the respondents’ position in its discussion of the discrimination claims did not undermine its separate finding on employee status. The appeal was dismissed.

1. Employment Appeal Tribunal: In [2026] EAT 109 , the appeal from the Employment Tribunal’s preliminary hearing judgment was dismissed.
2. Employment Tribunal, London Central: Following a preliminary hearing on 11 December 2023, the tribunal struck out the automatic unfair dismissal, notice-pay, unlawful deductions and breach-of-contract claims. Its judgment was sent to the parties on 10 January 2024. The discrimination claims were permitted to proceed.