Gillian Borthwick alleges she worked regularly for the Freemasons for five years at Beach Lane Social Club in Portobello, Edinburgh before being dismissed in January.
The Freemasons are arguing she was only hired as a casual worker and never qualified as a contracted employee. George Morton, club manager, said: “She has always been a casual worker, we phone her when we need her and that has always been the arrangement.”
Ms Borthwick disagrees. She said: “I used to just collect glasses for them whenever they needed a hand, but over time I was offered a job on the bar, and have been doing that for a while now.
“I also got holiday pay if I booked it off, but there was one year when I didn’t go anywhere so I never took any, and they never mentioned paying me for it.
“I’m not even sure what I’m entitled to, but it must be more than nothing.”
At a preliminary hearing, Employment Judge Spencer Patrick said the fact that the club paid Ms Borthwick for holiday hours three times throughout her service implies she was classed as an official employee.
Mr Morton denied this, however: “We paid her the holiday pay because we didn’t know at the time we didn’t have to.
“It was out of good will more than anything, but she definitely was not an employee — we have our full and part time staff, she just helps out.
“We would just phone her on a week to week basis to see if she could cover the bar when we had functions on in our suite.”
Seemingly, however, Ms Borthwick did not refuse a shift for five years. She said: “I would do either a Friday or Saturday night — or both — every single week.
“I think there was only one occasion when I couldn’t because I was working late at my other job.”
She therefore considered herself to have the same rights as everyone else working at the bar.
Before the case proceeds to a full hearing, Judge Stewart said he would have to decide whether or not Ms Borthwick was actually an employee at the club.
He said: “If I find you are not an employee then you cannot claim for unfair dismissal, as the club could have effectively just stopped phoning you in for shifts.
“However, you will still be able to claim for your lost wages and holiday pay, but I would hope you could work it out between you.”
Can I claim unfair dismissal?
Under the Employment Rights Act, only employees who have a year’s continuity of service at the date of dismissal, or have been dismissed without notice and are within a week of gaining a year’s continuity of service, can claim unfair dismissal. Employees must also comply with strict time limits to make a claim.
If you need legal advice on unfair dismissal, regardless of where you’re located – be it in Edinburgh, Glasgow, Manchester, Birmingham, Bristol, Leeds, Sheffield, London, Cardiff, Belfast, or elsewhere – you should speak to a local solicitor who specialises in employment law.
- Employment law (FindLaw UK)
- Bar worker appeals against dismissal from Freemasons club (Scotsman)
- Work status & rights in the workplace (The Solicitor)
- Employee work rights: Help for vulnerable workers (The Solicitor)
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