The phrase 'casual labour' may be viewed as rather hackneyed and old-fashioned in the modern world. As a case with a diplomatic flavour showed, however, Employment Tribunals (ETs) are well able to look behind such terminology to discern a worker's true status (Malek v High Commission of Brunei Darussalam – Brunei Student Unit).

The case concerned a woman who worked on a series of short-term contracts for a High Commission. She performed a wide range of receptionist and clerical duties and the contracts described her as 'casual labour'. After her final engagement came to an end, she launched ET proceedings.

She complained of, amongst other things, unfair dismissal. In denying that claim, the High Commission asserted that she was engaged on fixed, ad hoc assignments, on a casual basis, and was thus not an employee. As her last assignment was only for six months, it contended that she in any event lacked the two years of continuous service required to found an unfair dismissal claim.

Rejecting those arguments following a preliminary hearing, the ET ruled that she had the status of a fully-fledged employee. She was engaged on a continuous series of fixed-term contracts that required her to work specified hours. She was unable to turn down work or to substitute another worker to perform her role, and the High Commission controlled the way in which she went about her work. She was integrated into the workplace, clocking in and out like any other employee.

The fact that she did not receive holiday pay, and that she was paid an hourly wage rather than a regular salary, were not contra-indications of employment status. They were just as consistent with the High Commission seeking to avoid its obligations and failing to treat her as the employee she truly was.

Arguments that the ET had no power to hear the woman's complaints due to the High Commission's diplomatic status also fell on fallow ground. The High Commission had submitted to the ET's jurisdiction by responding to the claim and putting forward substantive defences. It had not claimed state immunity in its response.

The ET's ruling opened the way for the woman to proceed with her claims to a full hearing. Her complaints included both ordinary and automatic unfair dismissal, unlawful deductions from wages and a failure to remit holiday and notice pay.

Our specialist team can advise you on any matter relating to unfair dismissal claims. Contact Julia Woodhouse j.woodhouse@sydneymitchell.co.uk 08081668860 for help and advice on all employment law matters.

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