Security guard with 28 months' service found to be employee, unfairly dismissed

This case highlights the importance of proper employment status and fair procedures, even in industries where casual working arrangements are common. The claimant, a security guard, worked for Bardwood Support Services Ltd for 28 months without a written contract, without being paid holiday, and was ultimately removed from his assignment with no disciplinary process.

What went wrong for the employer

The employer argued that the claimant was a worker, not an employee, and that his removal was not a dismissal but simply the end of an assignment. The tribunal rejected this, finding that the reality of the relationship — including regular work, control by the employer, and no right of substitution — meant the claimant was an employee. The employer also failed to follow any disciplinary procedure or the ACAS code, which made the dismissal procedurally unfair. Even though the reason for dismissal (performance and conduct issues) could be a fair reason, the lack of process meant the dismissal was unfair.

Why this matters for similar claims

This case is a reminder that employment status is determined by the actual working relationship, not by what the contract says. Workers who are treated as employees in practice may be entitled to full employment rights, including unfair dismissal protection, notice pay, and holiday pay. It also shows that employers cannot simply remove an employee from a site without following a fair procedure. The tribunal's decision to apply a Polkey reduction (assuming a fair process would have led to dismissal two months later) and likely an ACAS code uplift means the employer will face significant compensation.

For employees in similar situations, this case demonstrates the value of keeping records of working arrangements and asserting statutory rights. The claimant's persistence in pursuing his claim in person, without legal representation, resulted in a successful outcome.