Mr Muhammad Hussain v Roombookers (Europe) Ltd: 1300827/2018

EMPLOYMENT TRIBUNALS

Case No 1300827/2018

Between

Mr Muhammad HussainClaimant

Roombookers (Europe) LtdRespondent

Before

Employment Judge Benson

In person for claimant

Not represented for respondent

Date 27 December 2018

REASONS

[1]The claimant brought a claim of unlawful deductions from pay. A claim of unfair dismissal had been dismissed previously as the claimant did not have the necessary service for the Tribunal to hear it.

[2]The claimant contends that he was an employee of the respondent, but if he was either a worker or employee the Tribunal would have jurisdiction to hear the claim.

[3]The respondent says claimant was self-employed. It relies upon an agency agreement dated 5 September 2017 which the respondent considers was conclusive evidence of the nature of their relationship. The respondent also contends that it does not owe the monies claimed. The claimant was paid dependent upon the number of email and contact details he collected and it alleges that a number of email addresses and phone numbers were false and as such he was due no further payments.

[4]The claimant denies that he falsified the contact details and considers that the monies due to him have been unlawfully deducted. Evidence

[5]I heard evidence from the claimant who attended in person and considered documentation which was provided to me. I further considered the representations made by the parties in their claim forms and responses. In the absence of any cross examination, I accepted the evidence provided by the claimant on the balance of probabilities. Findings of Fact

[6]In September 2017 a friend of the claimant applied for a position with the respondent. He told the claimant that they were looking for more than one person. The claimant attended an interview in Birmingham and met the owners of the respondent Philip and Olga Brown. They were looking for people to work in the departure lounge of Birmingham airport. The role was to speak with passengers flying from the airport and complete forms with their names and contact information and obtain agreement that the respondent company could later contact them. The claimant would be paid £3 for each form competed. There were no set hours of work, but the owners wanted the stand to have someone present throughout the day. At the time there were a number of people working there. The claimant confirmed that he could work weekdays midmorning to mid-afternoon. They were happy with this and said that he could also work longer hours if he was able to. The arrangement was flexible.

[7]The claimant was provided with an agency agreement which he signed. This has terms relating to qualification, payment, hours of work and notice. The terms relevant to the issues in dispute which I am to determine are as follows: Qualification:a. The survey must be totally completed

b. Must include verified phone numbers and email address

c. 25 years of age and above

d. UK resident including Northern Ireland

e. No people living overseas Hours of work

f. Hours are to be agreed to and subject to seasonal change Payment

g. £3 will be paid for each and every qualified entry per week.

[8]The respondent also produced a document which is purported to have been signed by the claimant, which appears to be an acknowledgement for an ID pass. The date upon which he is said to have signed this is 1 August 2017. This was prior to the claimant commencing his work for the respondent. That stated that ‘all agents are self-employed and responsible for their own tax and NI contributions’

[9]The thought he was working for the respondent as an employee. He had previously worked on a self-employed basis in a restaurant and didn’t know a great deal about the difference between working as an employee or being self-employed. He read through it before he signed it but was keen to start the new role.

[10]Before the claimant could commence work, he had to be issued with a security pass to work ‘airside’ at the airport. Although a temporary pass could be issued initially, it needed him to provide identification and two references and details of his employment history for the previous five years. The second reference was a character reference. The temporary pass lasted for four weeks and he then applied for a permanent pass from the airport authorities. As the pass was required for him to get to his place of work, he could not send anyone in his place if he wasn’t able to attend.

[11]The claimant and his friend commenced work and joined two others who also worked for the respondent. After a month the claimant’s friend and the other workers left after arguments with the company. The owners asked the claimant if he knew of anyone who was looking for a job and he introduced a couple of people to them. It was agreed that the claimant would become the Manager and he was paid an additional amount of 20p for each of the forms which the other staff submitted. They also didn’t stay long and after a short time the claimant became the only member of staff.

[12]After the first month the claimant regularly worked Monday to Friday 9.30am to 3.00pm, with half a day on a Friday between 9.30am and 1.00pm. He took lunch breaks when it was quiet. If he wanted time off he would notify the respondent but did not need believe that he needed their permission. In reality, he took little time off. The only weeks when he did not work were the week of 10 December 2017 when the weather was bad and the week of 24 December 2017 when it was very quiet. On both occasions this was with the agreement of the respondent.

[13]The claimant was paid dependent on the number of forms that he had completed between Monday and Friday each week. On a Wednesday, he would be paid 50% of the value of the number of forms he had completed the previous week and would receive the remaining 50% once the respondent had checked the forms. The second payment would be paid on the 15th of the month in respect of the previous four weeks. Often the payments were one or two days late, but this didn’t concern the claimant unduly. At the end of December 2017 however, the claimant noticed that he had not been paid. The sum due according to his calculations was £850.50. He enquired of the respondent when he would be paid. In January 2018, they told him that there was going to be no pay as he had provided false email addresses and his contract was terminated.

[14]When the claimant initially started the job, the respondent told him that what it needed on a form was a name and email address or phone number. This is confirmed in the agency agreement. Other information was also collected on the form. Occasionally passengers had no email or alternatively no phone number. The claimant asked Philip Brown about this and he said to leave it blank. However, when the claimant left the email address, he was unable to submit it. He therefore asked Mr Brown again and he told the claimant to put any address down, so the claimant made up an email address. I was shown evidence of this address which was none@none.co.uk. The claimant used the same address each time and it was not one which could easily be mistaken for a real email address. This happened rarely as most people had email addresses and phone numbers. The claimant accurately recorded telephone numbers given to him. When it had happened previously the respondent had paid the claimant for those forms including the second 50% of the payment which was initially withheld while the forms were checked. The claimant had never had any deductions made from his pay for not completing forms correctly. He was always paid for all forms that he had submitted. After he had been doing this for some time, Mr Brown told him to no longer submit forms without an email address provided by the passenger and the claimant stopped that practice. I accept that until he was given that instruction, the respondent, through Philip Brown knew and accepted that this was what the claimant was doing and why and that there was no fraudulent activity by the claimant.

[15]The claimant was provided with a car parking space at the airport and worked on the stand which was provided by the company. There was little integration into the company and after the first month when he was working by himself, he didn’t know anybody else who worked for the respondent.

[16]The claimant provided details of the amounts which he considered were owed. These were commission for the period 26.11.17 to 27.01.18 and totaled £850.50. I was provided with a schedule detailing these amounts which I accept was accurate. These did not relate to just payments which the respondent alleged were fraudulent, but payments due in respect of all of the forms which the claimant had submitted between these dates. The Law

[17]The Employment Rights Act 1996 (ERA 1996) contains the most significant legislative rights for individuals categorised as employees. Under section 230(1) of ERA 1996, an employee is defined as: ”an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment”.

[18]Under section 230(2) of ERA 1996, a contract of employment means: ”a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing”.

[19]The principles to consider when determining whether an individual is an employee have been developed in case law and there is an irreducible minimum of personal service, control and mutuality of obligation. The leading case is that of Ready-Mixed Concrete (South East) Ltd v the Minister of Pensions and National Insurance

[1968] 2 QB 497

[20]The issue of employment status is often both a question of fact and a question of law.

[21]There is a statutory definition of a worker within S230(3) ERA, A worker is defined under section 230(3) of ERA 1996 as: ”an individual who has entered into or works under (or, where the employment has ceased, worked under):(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”.

[22]The factors required to satisfy section 230(3)(b) above are:a. The existence of a contract.

b. Personal service.

c. The other party is not the customer or client of any business undertaking or profession carried on by the individual.

d. A level of mutuality of obligation.

[23]In the Supreme Court decision in Bates Van Winkelhof v Clyde and Company LLP

[2014] ICR 730

the following was said: “First the natural and ordinary meaning of “employed by” is employed under a contract of service. Our law draws a clear distinction between those who are so employed and those who are self-employed but enter into contracts to perform work or services for others. Second, within the latter class, the law now draws a distinction between two different kinds of self-employed people. One kind are people who carry on a professional business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them. The other kind are selfemployed people who provide their services as part of a profession or business undertaking carried on by someone else. The focus is on whether the purported worker actively markets his services as an independent person to the world in general, a person who will thus have a client or customer on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal’s operations. In a general sense the degree of dependence is in large part what one is seeking to identify. If employees are integrated into the business, workers may be described as semi-detached and those conducting a business undertaking as detached. Whether there is a relationship of subordination is clearly important in distinguishing a worker from those genuinely on business on their own account.”

[24]In Ministry of Defence HQ Defence Dental Service v Kettle

UKEAT/0308/06

the EAT concluded (in summary) that if the tribunal finds (as a matter of fact) that it was not the parties' intention that the contractual documents should be an exclusive record of their agreement, it may look at other relevant material (including oral exchanges and conduct) to determine employment status.

[25]Tribunals should always commence their analysis of an individual's status by deciding whether it was the intention of the parties, objectively ascertained, that all of the terms of the contract should be contained in the contractual documents.

[26]In James v Redcats (Brands) Ltd

[2007] ICR 1006

the EAT approved a line of authority that tribunals should enquire into whether personal service was the dominant purpose of the contract, although preferred the term dominant feature to purpose.

[27]The Court of Appeal in Pimlico Plumbers Ltd v Smith

[2017] EWCA Civ 51

) reviewed the authorities in relation to personal service and the relevance of the individual being permitted to provide a substitute.

[28]Section 13 of the Employment Rights Act 1996 provides that: `Right not to suffer unauthorised deductions An employer shall not make a deduction from wages of a worker employed by him unless—(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

[29]I have considered each of the factors I am obliged to address to consider the status of the claimant. Existence of a Contract

[30]There is no dispute that the parties had entered into a contractual relationship. The respondent contends that the agreement dated 5 September 2017 defines the relationship. I have reviewed the agreement and consider that it cannot be that this contract was intended by the parties to be the exclusive record of the terms of the relationship. That Agreement does not reflect the nature of the agreement as put forward by the respondent. It does not state whether the contract is on a self-employed or other basis (though this is referred to in an earlier document dated prior to the claimant having commenced work). It does not indicate what is to happen if the individual cannot attend. It does not state any hours of work but confirms that these are to be agreed. It makes no reference to the requirements that the individual requires a security pass with appropriate references and work history to be provided.

[31]I consider that this document was not the exclusive record of the terms of the claimant and respondent’s agreement. This appears to be confirmed by the final statement which was ‘Amendments to this agreement may be made at the discretion of either party, if agreed to by both parties'. As such I have considered other evidence including the parties’ exchanges and conduct at the time in order to determine the status of the claimant. Personal service

[32]There was a clear requirement that it was the claimant who needed to attend to carry out the work. He could not send a substitute or someone in his place. As the role was within the secure environment of an airport and in an ‘airside’ role, the respondent could only engage someone who had the necessary security clearance which also required references and five years employment history. The role was conditional upon the claimant obtaining this clearance. There was no possibility that the claimant could send someone else, it could only be him. It therefore required him to perform the work personally. Mutuality of Obligation

[33]The claimant provided regular service every day and there was an expectation that he would attend on a number of hours each day in order that the stand was manned. In fact, there was criticism of him for not attending for sufficient hours in the respondent’s letter terminating his contract. Although there were times when the claimant didn’t work, this was for two periods of one week on 10.12.2017 and on 24.12.2017. On both occasions, it was with the agreement of the Respondent that he didn’t attend. On the first occasion because there was snow and in the second that the airport was quiet. The claimant obtained the agreement of the respondent that he would not attend for those periods. In considering these issues I consider that there was a level of mutuality of obligation. In business on his own account?

[34]This was not a pure commercial business where the claimant was in business on his own account. There were some factors which pointed towards this but they were not sufficient to sway me. These included the commission only arrangement and the potential benefit which the claimant could recoup from other staff members’ forms. Taking the words of Lady Hale in Bates Von Winklehof and in applying them to the facts of this case, I have considered whether the claimant in this case ‘actively markets his services as an independent person to the world in general’, or whether ‘he is recruited by the principal to work for that principal as an integral part of the principal’s operations’. The claimant was not marketing his services to the world at large. He had been recruited by the respondent to work for them at their stand in the airport. The ‘business’ was one which they had created and while carrying out that role, he was the face of the respondent’s operations. The respondent was not therefore ‘a client or customer of any profession or business undertaking carried on by the [claimant]”.

[35]For the reasons set out above, I conclude that the claimant was a worker.

[36]Although I do not need to determine whether the claimant was an employee for the purposes of this claim, for completeness, I consider that there was insufficient control for the claimant to be classed as an employee. The degree of freedom the claimant had concerning his hours and days off, and the lack of integration into the respondent’s business do not suggest such an employer/employee relationship. Did the respondent make unauthorised deductions?

[37]As such I now go on to consider the claimant’s claim. He claims commission for the period 26.11.17 to 27.01.18 and states that he is owed £850.50. He has provided me with a Schedule. The respondent argues in its response that the claimant was in breach of contract. The respondent has neither attended nor is represented today and I have no oral evidence from witnesses on its behalf. Its case is that the claimant fabricated email addresses and names and produced fabricated phone numbers. The claimant denies these allegations. The claimant’s evidence is that he had agreed with the respondent that if individuals didn’t have an email address, on those occasions, which were minimal, the claimant should add a ‘made up’ address, as each part of the form needed to be completed before it could be submitted. From the documents shown to me it is clear where these addresses are created as they do not resemble real email addresses. This would have been clear to the respondent. In any event it had paid the claimant full commission on such forms, having checked them.

[38]I have heard evidence from the claimant and considered the documentary evidence and accept his evidence that he did not create email addresses or phone numbers for the purpose of falsely claiming commission or to divert work.

[39]The payments which the claimant states have been withheld are not however those which relate to the forms with incorrect email addresses or phone numbers. They relate to all forms which the claimant submitted between the dates for which he claims. The claimant had not consented to any such deduction either in writing or otherwise.

[40]In circumstances, I award £850.50 to the claimant on basis that respondent unlawfully deducted such amounts from the claimant’s pay.