Childcare worker dismissed after asking for minimum wage and rest breaks wins automatically unfair dismissal case
A nursery assistant with just 3 months' service was automatically unfairly dismissed after she raised concerns about being paid below the national minimum wage and not receiving rest breaks. The tribunal awarded £5,433.98.
1 min read · Last updated 18 May 2026
Case details
- #national-minimum-wage
- #working-time-regulations
- #rest-breaks
- #self-employment-status
- #automatically-unfair-dismissal
- #unauthorised-deductions
- #breach-of-contract
Key facts
- Ms Hay worked as a childcare nursery assistant for Ms Williams from 10 August 2021 to 17 November 2021.
- Ms Hay was paid £50 per day off the books until 6 October 2021, when a contract was signed providing for £8.36 per hour.
- On 17 November 2021, Ms Hay raised concerns about backpay for national minimum wage and lack of rest breaks.
- Ms Williams dismissed Ms Hay by voicemail on 17 November 2021, citing the conversation as the reason.
- The tribunal found Ms Hay was an employee throughout, not self-employed.
- The tribunal held the dismissal was automatically unfair because Ms Hay asserted her statutory rights to the national minimum wage and rest breaks.
Timeline
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Initial contact
Ms Hay and Ms Williams exchanged WhatsApp messages about Ms Hay filling a childcare position.
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Employment started
Ms Hay began working as a childcare nursery assistant for Ms Williams, paid £50 per day off the books.
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Referral to another childminder
Ms Williams asked Ms Hay if she would be interested in working for another childminder, Amifa.
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Contract signed
Ms Hay and Ms Williams signed a contract stating Ms Hay was self-employed, with pay at £8.36 per hour (national minimum wage).
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Conversation and dismissal
During a lunchtime conversation, Ms Hay raised concerns about backpay for national minimum wage and lack of rest breaks. Later that day, Ms Williams left a voicemail dismissing Ms Hay with immediate effect.
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Claim presented
Ms Hay presented her claim to the Employment Tribunal.
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Response presented
Ms Williams presented her response to the claim.
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First hearing day
The tribunal heard evidence and adjourned part-heard.
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Second hearing day
The tribunal heard closing submissions and delivered oral judgment.
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Written reasons issued
Employment Judge Tueje issued written reasons for the judgment.
The legal issue
The tribunal had to decide whether the claimant was an employee or self-employed, and if she was an employee, whether she was automatically unfairly dismissed for asserting her statutory rights to the national minimum wage and rest breaks.
The outcome
The tribunal found in favour of the claimant on all main claims. It held that she was an employee throughout, not self-employed, and that her dismissal was automatically unfair under section 104 of the Employment Rights Act 1996 because she had asserted her statutory rights.
The total award of £5,433.98 was broken down as follows:
- Breach of contract (notice pay): £836.00
- Unauthorised deductions from pay: £417.98
- Compensation for unfair dismissal: £4,180.00
Lessons & takeaways
- Employees do not need two years' service to claim automatically unfair dismissal if they are dismissed for asserting statutory rights like the national minimum wage or rest breaks.
- Paying workers 'off the books' does not avoid employment status – tribunals will look at the reality of the working relationship.
- Raising concerns about pay and breaks is a protected act; dismissing someone for doing so is automatically unfair regardless of length of service.
- Employers should ensure that workers receive a written contract that accurately reflects their employment status and pay from the start.
This case shows that even short-serving employees have strong legal protection when they are dismissed for asserting their basic employment rights. The claimant worked as a nursery assistant for just over three months, paid £50 per day 'off the books' – well below the national minimum wage. When she finally signed a contract in October 2021, it wrongly described her as self-employed. After she raised concerns about backpay for the minimum wage and lack of rest breaks, she was dismissed by voicemail the same day.
The tribunal rejected the employer's argument that the claimant was self-employed, noting that she worked regular hours under the employer's direction. It also found that the real reason for dismissal was the claimant's assertion of her statutory rights, making the dismissal automatically unfair. The employer's claims about complaints from parents and personality concerns were not accepted.
What the employer could have done differently
The employer could have avoided this claim entirely by paying the correct minimum wage from day one, providing proper rest breaks, and ensuring the contract reflected the true employment relationship. When the claimant raised her concerns, the employer should have engaged with them constructively rather than dismissing her. A fair process would have involved discussing the issues and giving the claimant a chance to respond before any decision.
Why this matters for similar claims
This case is a reminder that the right not to be unfairly dismissed for asserting statutory rights applies from day one of employment – there is no two-year qualifying period. Workers who are paid cash in hand or treated as self-employed when they are actually employees should know that the tribunal will look at the reality of the relationship, not just the label. Anyone in a similar position should consider raising their concerns in writing and, if dismissed, seek legal advice promptly as strict time limits apply.
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