Employee incorrectly labelled as self-employed was unfairly dismissed

The case of Alsnih v Al Quds Al-Arabi Publishing & Advertising shows the importance for businesses of correctly identifying employment status from the beginning of a working relationship.  

The claimant, an Online News Editor, started working for the respondent in 2014. The respondent, an Arabic newspaper, considered the claimant to be self-employed. In 2017 the respondent introduced Viber; software that tracks stories already published to prevent the duplication of articles.

In November 2019 the claimant was told that using the Viber app was compulsory to reduce the duplication of uploaded content. The claimant objected to this because she would have had to install it on her personal phone and would have been disturbed by a high volume of notifications. Instead, the claimant asked the respondent to provide her with a work phone to install the app. The respondent refused stating that the claimant could just turn off the notifications, however, the claimant did not believe that this was possible. 

The respondent then blocked the claimant’s access to their systems so she could not carry out any further work. The claimant raised a grievance alleging that she had been bullied, harassed, and discriminated against because of her race. The respondent replied to state that despite her being self-employed they would hear the grievance as a matter of courtesy, however this did not take place. Instead, they stated that as the claimant refused to install Viber, they had removed her access so she could not work.

The claimant argued that she was an employee and brought claims to the ET for unfair dismissal, notice pay, and holiday pay.

In respect of the claimant’s employment status, the ET found that the claimant was an employee. The employee solely worked for the respondent, had a regular working pattern, received the payment of a monthly retainer, had been provided with a laptop by the respondent who also exercised a sufficient degree of supervision and control over the claimant.

The respondent believed that the claimant was self-employed so did not carry out any investigation, disciplinary process, nor did they inform the claimant that a refusal to use the Viber app could result in dismissal. As the ET found that the claimant was an employee, the respondent’s failure to take such action meant that it was a procedurally unfair dismissal. The ET also found that it was substantially unfair because no reasonable employer would dismiss an employee for refusing to put such an intrusive app on their personal phone.

The ET also found that as she had not received any holiday pay, because the respondent incorrectly considered her to be self-employed, she was entitled to holiday pay for the entirety of her employment.

When a business engages “self-employed” contractors they need to fully consider how this relationship will operate in practice and continue to monitor how it develops. This case shows the costly ramifications when a business gets employment status wrong.