Tribunal finds sessional social worker was not an 'employee'

4th November 2024

The Employment Tribunal has dismissed a claim against a local authority brought by an 'as and when' or 'sessional' social worker. The respondent, Harrow Council, hired the claimant on a casual basis and worked on a variety of projects over a period of 11 years for the youth justice team. The respondent accepted that the claimant was a 'worker' but denied that he had become an 'employee', entitled to bring a claim for constructive dismissal following a reduction in his available hours of work.

Following a 3-day hearing on the issue of employment status, involving 7 witnesses, Judge King's reserved judgment concluded that despite the longevity of the working arrangement, the claimant was not an 'employee' as defined by s.230(1) of the Employment Rights Act 1996.

In summary, although the claimant's working arrangement was broader than the description in the respondent's casual workers policy, both parties viewed the claimant as a sessional worker and this reflected the reality of his position (§§20, 69, 73-74, 76-77 & 91). The claimant's freedom to negotiate over wages and arrangements for holiday and sick pay were indicative of worker status but not employee status (§§81-82). There was a lack of 'mutuality of obligation', demonstrate by fluctuations in the claimant's working hours and pay, coupled with a lack of control over the claimant’s work, further undermining the case for employee status (§§67, 70, 81-83 & 99).

In light of the pitfalls faced by employers in this area, the judgment illustrates some of the factors Tribunals are likely to consider relevant when determining employment status of sessional social workers hired by local authorities.

3PB Barristers' (3 Paper Buildings) Ben AmunwaBen AmunwaCall: 2013 specialising in education, employment and public law was instructed to represent Harrow Council by HB Public Law.

This is the second such case Ben has acted in recent years. In the first case, Ben defended a maintained school against a high value claim brought by a visiting teacher for over two decades' worth of alleged arrears of wages and holiday pay from 1998 to 2020, raising complex issues of employment status and the extent to which the losses claimed were constrained by statutory provisions on teachers’ pay.

To instruct Ben, or check his availability, please contact his clerks Dave Fielder on [email protected] or Gemma Faulkner on [email protected] or call either of them on 020 7583 8055.