Mr C WoolcockClaimantCitySprint (UK) LtdRespondent
Before
Employment Judge HindmarchIn person for claimantMr C Adjei - Counsel for respondentDate 1 August 2025
JUDGMENT
[2]At the relevant time the Claimant was not a disabled person as defined by Section 6 Equality Act 2010 because of a mental health condition, dyslexia and/or a neck/back issue.
REASONS
[1]This two day Public Preliminary Hearing came before me by CVP on the 5 and 6 November 2024. The Claimant represented himself and the Respondent was represented by Counsel, Mr Adjei. The Notice of Hearing dated 20 August 2024 stated the purpose of the Hearing was to “determine disability status”.[2]By an ET1 filed on 14 January 2023, and following a period of ACAS early conciliation from 22 December 2022 to 13 January 2023, the Claimant brought complaints of disability and race discrimination and for monies owed. In a rider 1 of 12 to the ET1 the Clamant stated “From November 2021 to December 2022, covering the CAZ work add undesirable routes which impacted the neck/back issues & exploiting the Claimant’s disability… The back and neck problem is being managed after stopping driving but flares up in cold/damp conditions”.[3]The Respondent filed a response indicating its intention to defend the claims.[4]On 16 March 2023 Legal Officer Singh ordered the Claimant to provide medical records and a disability impact statement by 11 May 2023 and the Respondent to confirm whether disability remained in dispute, and if so, why, by 25 May 2023.[5]The Claimant complied with this order on 11 May 2023. In his disability impact statement, he referred to three disabilities; “a decline in my mental health, which is in the process of a diagnosis, a learning disability and musculoskeletal issues in specific parts of my neck and back”.[6]On 25 May 2023 the Respondent’s representative wrote to the Tribunal stating that the Claimant had only referred to neck and back pain in the ET1 and that it was not accepted that this condition amounted to a disability.[7]There was a first Case Management Preliminary Hearing on 20 November 2023 before Employment Judge Kelly. She listed two Public Preliminary Hearings; one to take place on 14 and 15 February 2024 to determine whether the Tribunal had jurisdiction to hear the claims given the Respondent’s contention that the Claimant was self-employed and, if the claim survived, one to take place on 30 and 31 May 2024 to decide “did the Claimant have a disability under the Equality Act 2010 at the relevant time by reason of any of the following medical conditions; mental health condition, dyslexia, neck/back issues”.[8]In her Case Management Summary Employment Judge Kelly recorded the following: “50. The Claimant explained that the claim for disability discrimination was in relation to: 50.1. The neck/back issue was to do with the driving requirement of the job. 50.2. The dyslexia was to do with comments made to him about “can’t read” and “slow”. 51. We struggle to understand how the alleged mental health condition related to the claim, but this can be explored further if relevant at a later Preliminary Hearing.”[9]In a section headed “Application to amend” she stated “The Claimant should ensure they are prepared to make arguments to the Tribunal at the May Preliminary Hearing if he wishes to amend his claim.”[10]Employment Judge Kelly ordered the Claimant to provide GP records for the period 2009 to October 2023 and “any other medical evidence relating to the 2 of 12 medical conditions, how long they have lasted and their impact on his ability to undertake day to day activities.” She gave him leave to file an amended impact statement.[11]On 31 January 2024 the Claimant provided a second/amended disability impact statement and some further supporting documents.[12]The hearing listed to take place on 14 and 15 February 2024 (to deal with employment status) was postponed by the Tribunal on 13 February 2024 due to a lack of judicial resource. Instead, a further Case Management Preliminary Hearing was listed for 4 March 2024.[13]The Case Management Preliminary Hearing on 4 March 2024 took place before Employment Judge Dean. Unfortunately, she became unwell thereafter and her written Case Management Summary/Orders have not been produced. One outcome however appears to be that a Stage 2 Judicial Mediation Hearing before Acting Regional Employment Judge Jones was listed for 21 May 2024. That hearing took place and the Case Management Orders state that the employment status hearing needed to be re-listed for 4 days and she required the parties to send in dates to avoid. No mention was made of the disability hearing listed on 30 and 31 May 2024 which must have been postponed.[14]This Public Preliminary Hearing was then listed not to consider employment status for 4 days as envisaged by then Acting Regional Employment Judge Jones, but to deal with the disability issue. A Final Hearing for 5 days from 30 June to 4 July 2025 was also listed.
Findings of Fact
[15]I discussed with the parties at the start of the hearing before me whether they were content that we deal with the disability issue. Both parties agreed they were.
THE HEARING
[16]I had a bundle of documents from the Respondent running to 318 pages. My clerk had forwarded an email to me that had been sent by the Claimant on the morning of the first day of the hearing complaining about the compilation of the bundle. The Claimant said he had prepared his own bundle and had sent this to the Tribunal on or around 31 October 2024. We adjourned for my clerk to locate and send me the Claimant’s bundle which ran to 453 pages. When I considered the Claimant’s bundle it contained many of the same documents as were in the Respondent’s bundle; pleadings, party and party correspondence, medical records etc., but it also had a section of documents that really went to liability. I explained to the Claimant that I was dealing only with the issue of whether he met the definition of disability at the material time. Whilst I understood that he was aggrieved about conduct he says he suffered whilst working for the Respondent, I was not going to deal with those matters. I explained to the Claimant my view was that the Respondent’s bundle seemed to contain all the relevant material for the matters I had to decide, but if he felt that something was missing he could direct me to it. Page references in this Judgment are references to the Respondent’s bundle. I also had a Skeleton Argument from the Claimant. 3 of 12[17]On day one we heard the Claimant’s evidence. On day two we heard submissions. I had noted at the outset that in the ET1 the Claimant had in answer to a question about assistance required, stated “time to process information and clear explanations”. On day two and by agreement Mr Adjei made his submissions first and did so slowly and carefully, pausing at the Claimant’s request to allow the Claimant time to make notes and digest matters. We took a lengthy break of about 2 hours for the Claimant to gather his thoughts and take his lunch before his submissions.[18]In Mr Adjei’s submissions he relied on an extract from the IDS Handbook on Disability Discrimination which was shared with the Claimant and myself before the submissions were made.[19]I decided to reserve my Judgment given time constraints. We concluded submissions and then had a discussion about the future of the case. We finished at 3pm on 6 November 2024. There would have been insufficient time to deliberate and hand down a decision.[20]The parties are in agreement that the Claimant was engaged by the Respondent from 28 October 2021 and that engagement ended on 13 October 2022. He worked as a delivery driver using a van to deliver letters and goods throughout the UK.[21]In his first Disability Impact Statement, filed with the Tribunal on 11 May 2023 (pages 72-78), the Claimant stated under the heading mental health that he was advised by a work coach to see his GP in February 2023. This was approximately 4 months after his engagement with the Respondent had ended. He says in April 2023 he saw his GP who issued a fit note and that an appointment with a counsellor was arranged. He says in May 2023, when he filed the Disability Impact Statement, there was no diagnosis but that he did not feel safe around people and that he had daily flashback of the “constant cycle of abuse” from the colleagues he had worked with at the Respondent. He sent the Tribunal a letter from NHS Black Country Healthcare dated 20 April 2023 (pages 67-68) stating that he had been referred to them for talking therapy and another letter dated 26 April 2023 offering a Healthy Minds assessment, (pages 69-70).[22]The fit note was dated 20 April 2023 and referred to a “stress related problem” (page 87). I have noted above that Employment Judge Kelly at the Case Management Preliminary Hearing on 20 November 2023 ordered the Claimant to disclose his GP records and gave leave for him to file an Amended Disability Impact Statement. The GP records were at pages 308-316 of the bundle. There was an entry dated 19 September 2021 (page 313) where a “stress related problem” is recorded in the GP notes. The entry prior to this is dated 6 January 2010, so the Claimant had not visited his GP for some 11 years or so prior to this. The 19 September 2021 entry refers to it being a face to face consultation with the Claimant explaining that he was a teacher by profession, that there had been an issue at work that he disputed and “the case is going to a tribunal” and “wants sick note for 1/12”. A fit note was issued for the period 19 September 2021 to 24 October 2021. The Claimant began his engagement with the Respondent 4 days after this fit note expired on 28 October 2021. 4 of 12[23]The Claimant accepted in evidence that he did not visit his GP about any mental health issue during his engagement with the Respondent.[24]I have already noted above that the Claimant went to see his GP on 20 April 2023. This time he referred to taking the Respondent to tribunal. The Claimant said at this time he was on universal credit and was disgusted and upset by documents he had received from the Respondent in response to a data subject access request. This had caused him to visit his GP.[25]The GP notes reveal that the Healthy Minds team assessed the Claimant in May 2023 as having a depressive episode. The Healthy Minds report to the GP is at pages 91-98. It confirms that the Claimant was assessed on 22 May 2023. In evidence the Claimant said the assessment was done over the telephone and took about 20 minutes. In the section “impact on lifestyle” it is noted “struggles to trust anyone”. In the section “Behaviours” it states “lack of motivation, used to go running regularly on a weekly basis but has not been doing this”.[26]In his second Disability Impact Statement (pages 164-172) the Claimant referred to the claim for universal credit that he made on form UC50. He accepted in evidence that he did not set out in the Disability Impact Statement the effect on his ability to carry out day to day activities but said that was set out in the UC50. The extract from this was at pages 174-182 and dated 8 August 2023. In this document the Claimant talks of having no motivation and having poor personal hygiene.[27]At pages 317-318 was a letter dated 22 May 2023 from NHS Black Country Healthcare confirming the Claimant had been referred for counselling.[28]In cross-examination the Claimant was taken to a statement of fact he gave to a courier motor insurance provider for insurance from 19 October 2021 to 18 October 2022. In answer to the question “Have you ever been diagnosed with any physical or mental infirmity?” the Claimant had stated “no”. He said he had not mentioned any mental health issue as it was embarrassing.[29]The second condition relied on by the Claimant was dyslexia. In his first Disability Impact Statement the Claimant said he had first been diagnosed with dyslexia in 2009/10 when he was at university. He said in cross-examination he had received a letter confirming this diagnosis but had lost it and was unable to obtain a copy. His recollection was the letter was a single page running to a couple of sentences or a paragraph.[30]The Claimant had provided some supporting evidence. At page 79 were some emails arranging a “dyslexia screening” appointment in September 2009 and at page 84 confirmation from Student Finance England confirming that agreement had been given for the Claimant to attend a Student Needs Assessment on or around March 2010. There was also a receipt for a computer which the Claimant says he sent on to his speech and language therapist in April 2020. The Claimant qualified as a teacher in 2012. He told the Tribunal he had three degrees but had needed one to one assistance when studying and a computer 5 of 12 to help with lengthy writing pieces. There was evidence in the bundle of him being able to hand-write shorter pieces.[31]It was put to the Claimant in cross-examination that when he visited his GP on 19 September 2021, the first visit in 11 years, his GP had made a note of his medical history yet there had been no mention made of dyslexia. The Claimant said that he had not needed to talk about it and had the GP asked him specifically about it he would have mentioned it.[32]The third condition relied on is back and neck pain. The Claimant said this had started about a month after his engagement with the Respondent commenced. He accepted he did not see his GP about this during his engagement with the Respondent. His engagement with the Respondent ended on 13 October 2022 and the GP records reveal he first consulted in GP the following day on 14 October 2022. The notes (pages 311-312) stated the problem as “neck pain” and go on “1/12 of neck pain, stiff muscles, smilling makes his sx better, work as delivery driver sitting in one position for long time could contribute to his Sx, his private Chiropractor is going to do the assessment and will tell him the plan, no swelling/erythema, hasn’t tried any pain killer trying to avoid it as not keen to take meds”. On examination “discomfort with C spine flexion and R lateral rotation”. On Plan “refused to try analgesia and wants to wait for chiropractor report, advised to contact us if sx worse and keen to try meds”. I have no idea what “smilling” is but “sx” appears to be symptoms.[33]In cross-examination it was put to the Claimant that “1/12” meant he had told the GP the symptoms had lasted one month (one-twelfth) as at 14 October 2023. That was the same short hand the GP had used in the 19 September 2021 entry when issuing a fit note for that period. The Claimant said this was “rubbish and it was probably a mistake by the GP”. He said the issues started in November 2021 so a year or so earlier. He accepted he had not taken any pain killers but instead had tried to adjust his driving position. He said he had gone to his GP on 14 October 2021 as he had “had enough” of people treating him badly. When asked why he had not gone earlier he said he did have some non-working days whilst engaged by the Respondent but had used those to go to Court to deal with traffic fines or jury service or to deal with his earlier Tribunal claim.
The Law
[34]He said the back and neck pain had been caused by prolonged driving hours and by having to sleep in his van in a foetal position on occasion. He said this had affected his ability to go running, he suffered circulation issues and on one occasion he thought he was having a stroke. He described having to lie down whilst taking a speed awareness course.[35]The Claimant saw a chiropractor on 16 October 2022. At page 88 was a letter from the chiropractor to the Claimant’s GP. It states the Claimant to be “suffering from moderate, chronic cervico-thoracic functional pain with the likelihood of age appropriate, spinal wear and tear in this region. This should be highly amenable to the course of physical and manual therapy proposed and I would expect to see in excess of 90% resolution of the presenting complaint by the end of the initial treatment course”. 6 of 12[36]The Claimant, who paid privately for this examination and report, was asked in cross-examination to agree that the report said little about any effect of range of movement, problems with running or the other symptoms he had mentioned. The Claimant said he was disappointed in the report and expected those things to be present.[37]On 2 November 2022 the Claimant returned to his GP. The notes record that he was unable to pay for treatment and requested a referral to a physiotherapist (page 311). He remained “not keen for pain killers”.[38]In November 2022 the Claimant applied for a role as a prison custody officer. He said in his evidence he had to walk four miles to the interview and agreed the role was a physical one. He said he had joined a gym in October 2022 to focus on his neck and back problems.[39]The Claimant saw his GP on 6 January 2023 where it was noted “a vast improvement since being on a self-management period” (page 318).[40]The GP records note on 15 February 2023 the Claimant did not attend a NHS Connect Physiotherapy hospital appointments and there is no other entry concerning his back or neck. SUBMISSIONS[41]Mr Adjei asked me first to consider what exactly was the alleged disability in this claim. He pointed out that in the ET1 the Claimant had only mentioned neck and back issues and the Claimant had never made any application to amend to add a mental health condition and/or dyslexia. Mr Adjei accepted that by the time of the first Case Management Hearing the Claimant had filed his first Disability Impact Statement referencing these additional conditions and that Employment Judge Kelly had referred to them in her Case Management Summary. He invited me to make a determination that there was only one condition relied on but, even if I was with him, in the alternative to decide whether all conditions relied on did amount to disabilities for the purposes of the Equality Act 2010 definition.[42]Mr Adjei submitted that the material time is the agreed dates of the Claimant’s engagement with the Respondent.[43]As regards the mental health condition he contended that the Claimant had not demonstrated that he had this condition during his engagement with the Respondent. He pointed out the condition had no consistent diagnosis, stress being referred to in the GP notes on 19 September 2021 and 20 April 2023, Healthy Minds referring to a depressive episode in May 2023 and the Claimant referring to PTSD in his second Disability Impact Statement (at page 164). He asserted that the Claimant had not seen any medical practitioner in the relevant period. He acknowledged the Claimant had seen his GP prior to his engagement with the Respondent commencing, and noted that appeared to be a stress reaction in an employment dispute/Tribunal case as at that time. He did not see his GP again in relation to mental health until April 2023 and again this appeared to be a reaction to a stressful event, the Claimant stating in 7 of 12 evidence it concerned his receipt of the Respondent’s reply to his Data Subject Access Request.[44]Mr Adjei submitted that even if the Claimant had the mental health condition at the relevant time, there was no evidence of any substantial adverse effect on his ability to carry out day to day activities. He said the UC50 form and Healthy Minds assessment were well after the relevant period.[45]Turning to dyslexia, Mr Adjei accepted this was a mental impairment and referred me to the following extract from the IDS Handbook: “There is no definition of “mental impairment” in the EqA but Appendix 1 to the EHRC Employment Code states “The term “mental impairment” is intended to cover a wide range of impairments relating to mental functioning, including what are often known as learning disabilities” – para 6”[46]He then referred me to the following section on dyslexia: “Dyslexia According to the British Dyslexia Association, dyslexia is often referred to as a “specific learning difficulty” and can affect reading, spelling, writing, memory and concentration, and sometimes maths, music, foreign languages and selforganisation. The Association estimates that round four per cent of the population are severely dyslexic and a further six per cent have mild to moderate problems. The accepted clinical view is that dyslexia s not a sign of low intelligence. What an employer may perceive as poor written skills, slowness, forgetfulness, lack of concentration, or poor organisational or time management skills may in fact be the result of dyslexia. In Jackson v Lidle Great Britain Ltd ET Case No. 2302259/19, the employment judge, when holding that the claimant was disabled by reason of dyslexia, correctly observed that “it is often difficult to state at what point the condition of dyslexia, which is shared by many people, crosses the line to be classed as a disability.” Simply because a claimant suffers from dyslexia does not mean that he or she is automatically to be regarded as being disabled. All depends on whether the impairment is substantial and has a long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.”[47]Mr Adjei submitted that even having a formal diagnosis of dyslexia does not mean the Claimant could establish this had a substantial and adverse effect on his ability to carry out day-to-day activities. He accepted there was evidence of a diagnosis of dyslexia in 2009 but there was limited medical evidence pertaining to that period and we had no expert evidence. He referred me to a further extract of the IDS Handbook as follows: “Appendix 1 to the EHRC Employment Code makes it clear that the term “mental impairment” is intended to cover learning disabilities (see para 6). In Dunham v Ashford Windows 2005 ICR 1584, EAT, the EAT gave guidance on how tribunals should deal with mental impairment cases where the impairment 8 of 12 is a learning difficulty – such as dyslexia – rather than a mental illness. D, who had difficulties reading and writing, was employed by AW as a fork-lift truck driver and yardman. Following his dismissal, he brought a complaint alleging that his employer had discriminated against him on the ground of disability by dismissing him and by failing to make reasonable adjustments to accommodate his difficulties. A preliminary issue arose as to whether D was disabled within the meaning of the DDA. The evidence before the tribunal consisted of a report compiled by C, a senior psychologist, that stated that D suffered from “generalised borderline moderate learning difficulties”. Having considered the report the tribunal accepted that D had obvious problems coping with matters of numeracy, literacy and memory. It concluded, however, that he failed to establish that he suffered from a mental impairment within the terms of the DDA. Part of the tribunal’s reasoning was that C was a psychologist and not a medical practitioner. In overturning the decision, the EAT accepted that a claimant is unlikely to establish a mental impairment solely on the basis of “difficulties at school” or because he or she “is not very bright”. Expert evidence as to the nature and degree of the impairment is required, although in a case involving learning difficulties, evidence from a doctor is not essential. Medical evidence is not required in every case, especially where there is appropriate expert evidence as to the type and nature of impairment.”[48]Mr Adjei then turned to the back and neck issues. He accepted the Claimant had a condition but not that he had it at the material time. The GP notes recorded a consultation about this condition after the engagement with the Respondent ended. The records noted the Claimant had been suffering with he condition for a month at that time and that by 20 April 2023 there had been a complete recovery.[49]He accepted the chiropractor report noted “moderate chronic pain” but submitted that was after the material period. The Healthy Minds assessment which took place on 22 May 2023 recorded (page 94) there were no long-term physical health conditions. The back and neck issues did not prevent the Claimant driving for long periods of time or making deliveries as part of that role. He was interviewed for a prison role in November 2022 and started working as a prison officer soon thereafter.[50]I then heard submissions from the Claimant. The Claimant asked me to note the Job Centre in 2021 had advised him to obtain a fit note and so he attended his GP in September 2021. He said in early 2022, after obtaining the response to his Data Subject Access Request from the Respondent, he went downhill and was referred by his GP to Healthy Minds. He referred to having suicidal ideations and being hypervigilant.[51]As to dyslexia the Claimant said he was diagnosed by assessment with an educational psychologist and speech and language therapist. He said it was exacerbated by the long hours he worked during his time with the Respondent. He accepted he did not tell the GP about the dyslexia in 2021, his first visit after 11 years, but said the nurse at his GP practice had asked set questions only. He said the caselaw cited by Mr Adjei had little relevance to his condition, particularly as he asserted he was employed by the Respondent under an illegal contract where there was no evidence the Claimant in the cases cited 9 of 12 were similarly engaged. He said he had been the victim of a fraud that he did not discover until January 2024.[52]Turning to his back and neck issue the Clamant said he had undertaken intense physical training in the gym and that explained why this condition was much improved by the time of his assessment with Healthy Minds. He said that whilst engaged by the Respondent he covered routes across the UK which required him to sleep in his van. He started his role as a prison officer on 16 January 2023.
THE LAW
[53]The definition of disability is set out in section 6 Equality Act 2010 as follows: “(I) A person (P) has a disability if:(a) P has a physical or mental impairment, and(b) The impairment has a substantial and long-term adverse effect pm P’s ability to carry out normal day-to-day activities”[54]The burden of showing he has a disability or disabilities lies on the Claimant (Kapadia v London Borough of Lambeth [2000] IRLR 699 (CA)). It is for the Tribunal to determine the matter on the balance of probabilities.[55]The Claimant must show he has a "physical or mental impairment". In the case of McNicol v Balfour Beatty [2002] IRLR 711, the Court of Appeal held that "impairment" in this context bears "its ordinary and natural meaning… It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects” The Claimant is not required to show he has a medically diagnosed cause for the impairment relied on. It is the effect of an impairment that must be considered and not its cause. Where there is a longterm substantial adverse effect, it will, in most cases, follow that the Claimant is suffering from an impairment which has produced that effect . The impairment will only amount to a disability if it causes a substantial adverse effect on the Claimant’s ability to carry out "normal day-to-day activities".[56]The Guidance on matters to be taken into account in determining questions relating to the definition of disability states: "In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities." (Paragraph D3). Work of a particular kind might not be a "normal" activity for most people, tribunals are entitled in appropriate circumstances to take into 10 of 12 account the effect on an employee of circumstances which only arise at work (Law Hospital Trust v Rush [2001] IRLR 611; Cruickshank v VAW Motorcast [2002] IRLR 24).”[57]The Tribunal must decide if an impairment has an adverse effect and that will usually be straightforward. The more difficult question is whether or not the adverse effect is "substantial". "Substantial" means "more than minor or trivial", which is a relatively low bar. The Tribunal should focus on what the Claimant cannot do as a result of their impairment as opposed to what they can do despite it.[58]The effect of an impairment will be long- term only if:• It has lasted at least 12 months;• The period for which it lasts is likely to be 12 months; or• It is likely to last for the rest of the life of the person affected.[59]In Tesco Stores Ltd v Tennant UKEAT/01617/19, the Employment Appeal Tribunal stated that an impairment must have the required long-term effect at the time that the alleged acts of discrimination are committed. If the Claimant's condition has not lasted at least 12 months at the time of the alleged discriminatory act (or, if there is more than one act, at the time of each act), the claimant will not meet the definition of disability unless they can instead show that, at the time of the alleged discriminatory act (or acts), their condition was likely to last 12 months or for the rest of their life.
CONCLUSIONS
[60]The Claimant should set out in their claim form the impairment or impairments on which they are seeking to rely, and should ideally show how it is alleged that the elements of the section 6 definition of disability are satisfied. If it is necessary to add further impairments or change the nature of the impairment relied on, the claimant may need to apply to amend the claim. It is my conclusion that the only condition mentioned in the ET1 was neck and back issues and that no application to amend has ever been made to add the additional conditions of a mental health condition and/or dyslexia. Nevertheless, I set out below my conclusions as to whether all three conditions amount to disabilities for the purposes of the Equality Act 2010 definition.[61]I agree that the relevant time was the time of the Claimant’s engagement and thus I have to decide if he had a disability in the period 28 October 2021 to 13 October 2022. I remind myself the Claimant has the burden of proof.[62]As to the mental health condition, I accept the Claimant visited his GP to obtain a sick note for one month prior to commencing his engagement with the Respondent and that the GP records appear to confirm this was a time limited stress reaction to the ending of a previous role and a Tribunal case.[63]The Claimant did not see his GP again in relation to his mental health until April 2023 and he told me in evidence this was because of his receipt of the Respondent’s response to his Data Subject Access Request. It is my finding 11 of 12 that the Claimant did not have any mental health condition at the relevant time. He sought no medical assistance and declared to the Respondent’s insurers that he was fit and well.[64]On dyslexia I accept the Claimant was diagnosed with this in 2009/2010 and needed assistance when writing long pieces for his master’s degree. After this he was able to work as a teacher. He did not mention this condition when he saw his GP for the first time in eleven years in 2021. There was no medical evidence after 2009/2010 and no expert evidence. I accept dyslexia is a mental impairment but I had no evidence that it was causing the Claimant a substantial and adverse effect on his ability to carry out day to day activities at the relevant time.[65]Turning to the back and neck issues the Claimant said in evidence these began soon after his engagement with the Respondent commenced however he did not visit his GP until after that engagement ended. If the symptoms were as severe as he described I would have expected him to seek medical attention.[66]When he did see his GP he reported symptoms for “1/12” which is clearly the GP referring to one month, as evidenced by the provision of the sick note in September 2021. The chiropractor did note “moderate chronic pain” but did not record how long it had lasted or what the affect on the Claimant’s ability to carry out day to day activities was. He was able to walk four miles to an interview for the prison officer role and to go to the gym to aide his recovery. By May 2023 he had recovered. I do not find that at the relevant time he has a long-term condition nor one that had a substantial and adverse effect on his ability to carry out day to day activities.[67]For the reasons above I find the Claimant did not meet the Equality Act 2010 definition of disability. RECONSIDERATION JUDGMENT The Claimant’s application made by email on 13 December 2024 for a reconsideration of the Tribunal’s Judgment dated 27 November 2024 and sent to the parties on 29 November 2024 has no reasonable prospects of success and is dismissed.[1]In his application for reconsideration the Claimant says the Judgment is perverse and has inadequate reasoning.[2]The Claimant suggests the Judgment did not take proper account of his evidence in support of his dyslexia diagnosis.[3]The Claimant makes a number of allegations of fraud on the part of the Respondent. The Judgment was not dealing with those concerns, but rather dealt with whether the Claimant met the definition of disability under the Equality Act 2010.[4]The Claimant seeks to re-argue many of the points that were considered at the hearing on 5-6 November 2024 and are set out in the Judgment.[5]The Claimant makes allegations concerning the Respondent’s solicitors and Counsel’s conduct of the proceedings in advance of, and at, the hearing on 5-6 November 2024 The Law[6]Rule 68 provides: “(1) the Tribunal may either on its own initiative… or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so”. 1 of 3[7]Rule 69 provides: “… an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of … the date on which the written record of the judgment sought to be reconsidered was sent to the parties…”[8]Rule 70 provides: “(2) If the Tribunal considers that there is no reasonable prospects of the judgment being varied or revoked… the application must be refused and the Tribunal must inform the parties of the refusal.”[9]My reconsideration should be conducted in accordance with the overriding objective in Rule 3. This requires me to deal with this application fairly and justly.[10]In the case of Ministry of Justice v Burton and Anor (2016) EWCA Civ 714 it was noted “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way… the courts have emphasised the importance of finality”.[11]In Liddington v 2Gether NHS Foundation Trust EAT/0002/16, the EAT said that reconsideration requests are not an opportunity for a party to seek to re-litigate matters or to reargue matters in a different way or to adopt new points. In the words of Simler P “They are not a means by which to have a second bit of the cherry”.
CONCLUSIONS
[12]I have carefully considered the application. As I have already noted it refers to matters that I was not deciding. I was deciding whether the Claimant met the Equality Act 2010 definition of disability.[13]The application is refused as I conclude there are no reasonable prospects of the original decision being varied or revoked. The arguments now made by the Claimant do not reveal any new facts or any shortcoming in the original decision. It seems the Claimant is seeking to reopen arguments about the facts upon which I have already made my decision.[14]I have concluded that it would not be in the interests of justice to allow the application for reconsideration. 2 of 3[15]On 22nd October 2021, at 11.03am, the Claimant signed a Tender Agreement [641]. The electronic time stamp for the agreement was at 11.03am on 22nd October 2021 [112]. In evidence the Claimant accepted that the signature appearing at [641] was his. Having considered the oral and documentary evidence I conclude that Respondent’s Tender Agreement was so signed by the Claimant. The key terms of the Tender Agreement stated: 1 Status If we agree terms on which you will provide us with Courier services you will do so as a self-employed person and not as an employee or worker. To be clear, this means that CitySprint's obligations to you (and your obligations to City Sprint) are more limited than they would be if you were an employee or worker. As a self-employed person, for example, you will not be entitled to claim unfair dismissal, discrimination, any minimum wage, pension contributions, sick pay, holiday pay or a number of other rights and protections which specifically are for employees. It is also a consequence of your working on a self-employed basis that it will be your responsibility to make necessary returns and tax/NI payments to HMRC. We do not condone tax evasion. If you're not happy or able to comply with this self-employed status then you should not take up this invitation by signing this tender. 2 Obligations about work We cannot and do not commit to offer you any minimum number of jobs. You are not obliged to accept any job or minimum number of jobs which we offer you, however encouraging or pressing the Operations Team may be. You can reject any job which is offered to you at any time and for any reason. 3 Working with other people We are happy for you to work with or for anyone else while contracted with City Sprint, even mid job, providing that this additional work does not affect your performance for the job for CitySprint. From our perspective, you may work at the same time with or for another Courier company, yourself, or another business doing the same thing or something different. You have no obligation to work solely for CitySprint. You may advertise your availability to do work, including courier work, for other people, whenever you wish. 6 of 22 5 Using Others to do jobs If you want to share your vehicle or your motorcycle, your city tracker, or all your jobs with someone else (a substitute) then you can do so in line with the following terms. We operate 2 sorts of substitution depending on what work you want your substitute to be able to do for you. For work where clients have particular safety or security requirements, we will need to have certain details of that substitute on file so we can ensure those requirements are met. … Where there are no such client requirements, we are content to accept assurances from you about the substitute’s suitability and your responsibility for them … .’[16]Upon signing the Tender Agreement the Claimant was asked to complete a series of questions, which the Claimant accepted that he did complete over the telephone [101]. This required not just a choice between ‘yes’ and ‘no’. It included the input of personal information such as Mother’s Maiden Name, Memorable Date and Home Postcode. The purpose of this document was to demonstrate that the Claimant understood the effect of the Tender Agreement that he had just signed. The completed document revealed the following declarations (an extract): No. Statement Answer 1. I am engaged on a self-employed basis and have to account Yes for my tax, National Insurance and VAT if applicable. 2. I'm under no obligation to provide my services and CitySprint Yes UK Limited is under no obligation to give me any work at any time. 3. I can send a substitute in my place to do my work so long as Yes they can do the same work I have agreed to do. 5. If I do not work I will not get paid. As a self-employed Yes contractor I will not be entitled to holiday, sick, maternity payments or any employee benefits. 6. I am an independent business and pay my own costs, such as Yes fuel and vehicle costs for operating in this way.[17]The Claimant had access to a substitution form. The form differentiated between registered and unregistered substitute drivers. Unregistered drivers could undertake the bulk of the driving jobs. Jobs that required additional 7 of 22 training (for example medical deliveries) could only be undertaken by registered substitute drivers. The form stated: ‘If you do not want to provide services to CitySprint yourself, but want to send someone else on your behalf instead, this is substitution. Citysprint encourages couriers to use substitutes when they are not on circuit as this helps to maintain our fleet numbers. Providing a substitute is easy. All you need to do is complete the simple form below and submit this to the local service centre so it can be added to your iFleet profile.’[18]I find that, whilst the Claimant plainly had a right to provide a substitute driver at any time, as a matter of fact he did not do so. The Claimant told the Tribunal [CW56]2 that he did not know of his right to substitute. The right was explained in clause 5 of the Tender Agreement. If the Claimant did not know, I find that he would not have engaged a substitute, had he known. I conclude this because at [CW57] the Claimant stated that passing on a job or letting someone else drive his van was ‘foolish’.[19]On 26th October 2021 Jessica Rodrigues from Citysprint emailed the Claimant, stating ‘Your profile is completed. Please be patient because at the moment we have a lot people in the queue. We will get in touch in the next days’. It appears the Claimant was keen to start. He sent a reply email to Ms Rodrigues at CitySprint [119] 7 minutes later. The email stated ‘Good afternoon, Miss Rodrigues. Thank you, was not sure what was happening. I'm looking to offer my services ASAP’. He did not refer or mention starting in employment.[20]On 28th October 2021 the Claimant received a reply from Ms Rodrigues [121]. It stated: ‘Hi Chris, Thanks for your time today. Congratulations, you have now completed the sign up process and will receive your new Callsign shortly via e-mail. 2 [CW35] refers to paragraph 23 of Chris Woolcock’s witness statement 8 of 22 Here is a link to download and install our CitySprint Courier app. Please can you download the app and have it installed ready to be trained on. Here is the link to your login details to the Courier Hub. This gives you access to accreditation training which once completed will allow you to access a wider range of jobs. There are three tests you can complete on here. As discussed, you will receive a call early next week to go over some information that would be useful to you as a new CitySprint Courier and to go over any queries you may have regarding the Courier App or the Courier Hub, if any. After this call, you should have everything you need to make sure that your CitySprint journey is smooth sailing. Have a great weekend.’[21]Once up and running, the Claimant used the Respondent’s CitySprint App, as he confirmed at [CW64]. He had been assigned to his local Service Centre, Birmingham Service Centre (‘BSC’). Jobs would be received by the App. It would confirm the date, the Claimant’s Callsign, the job number, the Service Centre that had sent the job, the collection time and address, the delivery address, the time for delivery and the proposed fee [406].[22]The Claimant was assigned the Callsign B285 on 28th October 2021 [122]. I have seen a record of the occasions when the driver assigned the Callsign B285 was offered a job by the Respondent, and before accepting it, was able to negotiate a better price [394]. The first six entries for the Callsign B285 relate to jobs in 2020, prior to the Claimant undertaking driving work for the Respondent in October 2021. In 2020 that Callsign was used by another driver. The 2020 entries can be ignored.[23]The Callsign entries for B285 from 11th November 2021 [394] until 27th September 2022 [395] demonstrate that the Claimant negotiated an increase in fees for 74 jobs that he had been offered, as the Claimant accepts [CW35]. This evidences that the Claimant did reject jobs until a price for them had been offered that he was prepared to provide driving services for. It was the Claimant’s decision whether to work at all, and if working, at what price. 9 of 22[24]The Claimant would typically email the BSC to confirm that he was available for work on any particular day, for example his email on 2nd March 2022 [211] as he confirmed at [CW23].[25]I have seen a record of the days that the Claimant was actively providing driving services and days when he was not [396-397]: Week Days Claimant actively driving Week commencing 8th Aug 2022 2 Week commencing 15th Aug 2022 5 Week commencing 22nd Aug 2022 3 Week commencing 29th Aug 2022 4 Week commencing 5th Sept 2022 4 Week commencing 12th Sept 2022 3 Week commencing 19th Sept 2022 3 Week commencing 26th Sept 2022 3 Week commencing 3rd Oct 2022 0 Week commencing 10th Oct 2022 1[26]This demonstrates an irregular driving pattern and is consistent with the Respondent’s assertion that it was up to the Claimant to choose the days that he wanted to drive. The Claimant was cross examined about his record for the week commencing 3rd October showed ‘zero’ days activity, right at the end of day 2 of the hearing. The Claimant said in answer, ‘I was in tribunal on the 9th of October. Not available. I didn't seek approval, why should I? I was never offered any contract. This is a private matter. I can choose not to work. I didn't have to tell the Respondents.’[27]I have seen a list of rejected jobs, ie jobs sent to the Claimant’s App that he turned down [391-399]. Between 3rd November 2021 and 27th September 2022 the Claimant rejected 114 jobs. The Claimant would record the reason for the rejection, and the reasons given included: 10 of 22 Collection too far Clashes with another job Journey too far No longer available Insufficient pay Unacceptable rate Vehicle issues Undesirable route Not enough time[28]The Claimant confirmed in cross examination that he had refused jobs for economic reasons. The Claimant signed up to the Respondent’s Self-Billing Invoice service. This system tracked the jobs undertaken by a courier and billed the Respondent for that work. The Claimant’s self-billing invoice for 7th November 2021 appears at [403]. It set out the gross amount earned, deducted a Circuit Fee of £20.00 to cover administration costs and gave the net amount due to the driver.[29]On occasion, and ahead of a busy period, the Service Centre asked the Claimant to confirm when he would be available to drive. An example is the email sent on 24th December 2021 at 8.11am [179]. It stated, ‘Can you confirm if you're available over Christmas and if so, what dates and times?’ The Claimant replied at 4.23pm [180] stating, ‘Not sure yet, just need a few days to recuperate. Won't be available on the 29th as expecting a delivery. I enjoyed the job today dropping off the medication. If there are any jobs like that then ping me and I'll be front and centre. Otherwise, Boxing Day I'll be off and maybe a couple of days later’.[30]The Claimant was responsible for his own tax. He submitted a Tax Return for the year ended 5th April 2022. HMRC confirmed his tax calculation, based on that Return [295]. It recorded that Claimant’s profit from self-employment to be £5,873.00 for the year. As this was well below the Claimant’s personal allowance, his tax due was assessed as nil.[31]I note the following from the Claimant’s witness statement: 11 of 22 31.1. [CW1] I also believe I had been doing the same job as a CitySprint PAYE Courier; 31.2. [CW2]: I had also been working under similar conditions to CitySprint PAYE medical couriers; 31.3. In [CW8] the Claimant accepts that he signed the contract summary [101] but asserts that questions had been misrepresented when they were read out to him on the phone, without saying how. 31.4. In [CW27] the Claimant asserted that out of 73 jobs he was only allowed to reject 3 jobs. However this is plainly contradicted by the list of rejected jobs already referred to at [391] and the Claimant’s own evidence at [CW34]. 31.5. In [CW55] the Claimant explained why he was not available for work (or had reduced availability) in October 2022. The Claimant explained that the MOT on his van had expired. He had also arranged a job interview in a prison and had an overdue chiropractor appointment.[32]If a self-employed courier does not make himself available for work or accept a job for a period in excess of two weeks, then jobs are no longer sent to that courier, unless he indicates an availability to work. In the absence of indicating availability or accepting a job, the Respondent considered that the Claimant had ceased offering his driving services to them, and as such, the Claimant’s engagement with CitySprint ended on 13th October 2022. I turn now to the relevant law.
The Law
[34]The law that is relevant to the Claimant’s claims is as follows: The starting point is s230 ERA, which states: ‘(1) In this Act ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. 12 of 22 (2) In this Act ‘contract of employment’ means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. (3) In this Act worker3 …. means 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;”[35]The expression ‘employment’ is defined for the purposes of discrimination claims by s83 EqA. It states:(1) This section applies for the purposes of this Part.(2) “Employment” means (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;[36]The definition used by the Equality Act is 'employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour …'. This has in common with the 'worker' definition the extension beyond a contract of employment and the emphasis on personal service, though it lacks the exception for professional clients and/or business customers. Whilst the wording between s230 ERA and s83 EqA are different, Lord Wilson noted in Pimlico Plumbers v Smith [2018] UKSC 29, that the distinction between the wordings of the two definitions was ‘a distinction without a difference’.[37]An independent contractor is one who enters a contract for services as opposed to a contract of employment. The employer buys not so much the right to the worker's service, as the right to the end product of his labour. He pays him not so much to do the job as to get the job done. Independent contractors are often described as being self-employed. The contractor is independent in the sense that he is responsible for making his own decisions in performing the job, by way of contrast with the servant who is subject to the directions of the employer. Economically, he stands on his own two feet. He is in business on his own account. An employee is one who serves, in the sense that he puts himself and 3 ‘Worker’ is identically defined in regulation 2 of the Working Time Regulations 1998. 13 of 22 his labour at the disposal of another (his 'employer'), in return for some remuneration in cash or kind. The resulting contract is called a contract of employment. The employee sells his labour; the contractor sells the end product of his labour. In the one case the employer buys the individual; in the other he buys the job. The current guidance on the Working Time Regulations puts it as follows: 'If you are self-employed, running your own business and are free to work for different clients and customers, [the Regulations] do not apply to you'.[38]The Tribunal’s focus should be on the contract and the relationship of the parties rather than exclusively on dominant purpose: Jivraj v Hashwani [2011] UKSC 40. In Uber BV v Aslam [2021] UKSC 5, Lord Leggatt said ‘The wording of the contractual documents while relevant, is not conclusive. It is also necessary to have regard to how relevant obligations are performed in practice’. He continued: ‘The vulnerabilities of workers which create the need for statutory protection are subordination to and dependence upon another person in relation to work done. A touchstone of such subordination and dependence is the degree of control exercised by the punitive employer over the work and services performed by the individual concerned. The greater the extent of such control, the stronger the case for classifying the individual as a worker who is employed under a worker’s contract.’[39]During the course of the hearing HHJ Tucker handed down her judgment in Patel v DPD Group Ltd [2024] EAT 202. I arranged for a copy of the decision to be sent to the parties on day 2. It was an instructive authority in the same courier industry as the Respondent. The Judge looked at DPD’s employed drivers and its ‘owner franchise drivers’. The owner franchise drivers had their own van, were free to accept or decline courier jobs, and once accepted could out source the job to a substitute driver. Judge Tucker noted ‘it does not follow the Court must ignore the written documents completely. The question the Court must always ask is whether those documents reflect the reality and are a genuine reflection of the actual relationship. If they do, that which they state is clearly of critical significance.’ 14 of 22[40]The obligation to render personal service is important. If the contract allows the individual to provide work or services through someone else, a substitute, the requirement of personal service is not satisfied. In Pimlico Plumbers there was a conditional right of substitution in that work could only be substituted to another Pimlico Plumbers operative. This arrangement did not negate the ‘personal service’ element of the contract. Thus an unconditional or unfettered right to substitute is likely to negate personal service. A conditional right of substitution may not. In Stojsavljevic v DPD Group Ltd [2020] EAT 0118, DPD engaged employed drivers and owner franchisees. The owner franchisees were entitled to engage a driver of their choice, subject to that driver having a driving licence and being trained in DPD driver standards. Those two conditions were not enough to create worker status. The right to substitute a driver of their choice was inconsistent with the personal service element of worker status.[41]Once it is established that there is a right to substitute that is not a sham or device to avoid worker status, it does not matter how often the right is exercised or indeed whether the Claimant exercised it: Community Dental Services Ltd v Sultan-Darmon [2010] EAT 0532. In Independent Workers Union of Great Britain v Central Arbitration Committee & Roofoods Ltd t/a Deliveroo [2021] UKSC 0155, Underhill LJ observed, ‘It cannot be the case that whether riders working on identical terms fall to be treated as workers depends on how often they choose to take advantage of their right to do the work through substitutes’. Substitution only in circumstances in which the individual is unable to perform his service is unlikely to oust worker status. In UK Mail Ltd v Creasey [2021] 9 WLUK 438, EAT, despite the individual not having appointed a substitute, he was not deemed to be a worker because he did not have to be unable to perform his duties before he could send a substitute. It was always a matter for him.[42]The 'mutuality of obligations' (an obligation on the employer to provide work and an obligation on the employee to do it). Mutuality is a pre-requisite for any contract to exist, and therefore necessary for both the 'employee' and 'worker' definitions. There are three questions to be answered: 15 of 22 42.1. Did the worker undertake to provide his own work and skill in return for remuneration? 42.2. Was there a sufficient degree of control to enable the worker fairly to be called an employee? 42.3. Were there any other factors inconsistent with the existence of a contract of employment?[43]Relevant questions are likely to include: 43.1. What is the degree of control: the greater the scope for individual judgment on the part of the worker, the more likely he will be an independent contractor. 43.2. What was the amount of the remuneration and how was it paid? A regular wage or salary tends towards a contract of service; the submission of invoices for set amounts of work done, towards independence. 43.3. Did the worker invest in his own future: who provided the capital and who risked the loss? Who provided the tools and equipment? 43.4. Was the worker tied to one employer, or was he free to work for others (especially rival enterprises)? 43.5. How strong is the obligation on the worker to work for that particular employer, if and when called on to do so? 43.6. How did the parties themselves see the relationship? 43.7. What were the arrangements for the payment of income tax and national insurance? 43.8. How was the arrangement terminable?[44]How the parties themselves label their relationship is a relevant but not conclusive consideration. The status of the worker is to be decided by an objective assessment of all the factors, and the label attached by the parties is but one of those factors.[45]I shall now turn to my conclusions on those issues: 16 of 22 My
Conclusions
[46]Ultimately I have been tasked to determine the following questions: 46.1. Did the Claimant enter into or work under a contract of employment? 46.2. Did the Claimant enter into or work under any other contract … whereby the Claimant undertakes to do or perform personally any work or services for another party to the contract whose status is not … that of a client or customer of any … business undertaking carried on by the individual? 46.3. Did the Claimant enter into or work under a contract of employment, a contract of apprenticeship or a contract personally to do work?[47]When considering the questions posed at (46.1) to (46.3) which all relate to the type of contract that the parties entered into, I remind myself of the guidance provided by HHJ Tucker: ‘The question the Court must always ask is whether those documents reflect the reality and are a genuine reflection of the actual relationship. If they do, that which they state is clearly of critical significance’, and ‘How the parties themselves label their relationship is a relevant but not conclusive consideration. The status of the worker is to be decided by an objective assessment of all the factors, and the label attached by the parties is but one of those factors’.[48]In this matter the Claimant signed the Courier Tender Agreement [103]. It’s terms, quoted above, could not be clearer: ‘If we agree the terms on which you will provide us with Courier services, you will do so as a self-employed person and not an employee or a worker’. The Claimant accepted, and I so find, that he signed that Courier Tender Agreement. Once signed, the Claimant then completed a declaration, quoted above, that he understood and accepted the Tender Agreement’s terms. He was taken through the declarations by telephone and gave an answer to each one. I find on the balance of probabilities that the Claimant did so freely and that his answers were correctly recorded. I reject the suggestion made in the Claimant’s witness statement that 17 of 22 he did not read the Tender Agreement and/or that he signed it without understanding its terms. I also reject the suggestion that the questions posed in the declaration were misrepresented to him. No actual misrepresentation has been identified or established. I am supported in the belief that the Claimant understood the Agreement correctly because the Claimant, four days after entering the Agreement and completing the declaration, emailed Ms Rodrigues at CitySprint [119] stating ‘Good afternoon, Miss Rodrigues. …. I'm looking to offer my services ASAP’. I consider this to be a very telling statement, as it strongly indicates that the Claimant very much understood the type of agreement that he had just entered.[49]In my Judgment the contract and declaration had no obligation on the Claimant personally to do work, and thus the Courier Tender Agreement could not be fairly described as a contract of employment or any other contract with an obligation personally to do work. I reach this conclusion because: 49.1. Clause 1 Status: ‘If we agree terms on which you will provide us with courier services, you will do so as a self-employed person and not as an employee or a worker’; ‘’ 49.2. Clause 2 Obligations about work: ‘We cannot and do not commit to offer you any minimum number of jobs and you're not obliged to accept any job or minimum number of jobs which we offer you. … You can reject any job which is offered to you at any time and for any reason’; 49.3. Clause 3 Working with other people: ‘We are happy for you to work with or for anyone else while contracted with CitySprint, even mid job …. From our perspective, you may work at the same time with or for another Courier company yourself, or another business doing the same thing or something different. You have no obligation to work solely with City Sprint’; 49.4. Clause 4 Service Hours: ‘You may not want to work on a particular day or to particular time. That is your choice’; 49.5. Clause 5 Using others to do jobs: ‘If you want to share your vehicle or your motorcycle, your city tracker, all your jobs with someone else, the substitute. Then you can do so. …’; 18 of 22[50]I turn to now consider the reality of the working relationship and whether the Tender Agreement reflected that reality and/or was a sham agreement. I do by reference to the legal tests considered instructive on this point: 50.1. Did the Claimant undertake to provide his own work and skill in return for remuneration? As the Claimant himself made clear in his email to Ms Rodrigues at CitySprint [119] stating ‘Good afternoon, Miss Rodrigues. …. I'm looking to offer my services ASAP’. 50.2. Was there a sufficient degree of control to enable the Claimant fairly to be called an employee? In my judgment there was not. Whilst jobs would be sent to the Claimant with a proposed fee, the Claimant could first decide whether to offer his services on any particular day or not. Various reasons for refusal were stated in the Claimant’s witness statement, noting that no reason had to be given at the time. The reasons included a Van MOT, medical appointments, Tribunal hearings etc, a chiropractor appointment and a prison job interview. Once the Claimant had indicated that he was available to drive, he could still refuse any job, and did so regularly, for a whole host of reasons. If he was prepared to do a job, but not at the price offered he had the power to renegotiate it, which he did on a number of occasions. In fact it was difficult to discern any real control that the Respondent had over the Claimant, beyond not paying him for a job that he accepted and then failed to deliver. All of the key decisions to be made about work were the Claimant’s to make. Nothing could be imposed on him. 50.3. Were there any other factors inconsistent with the existence of a contract of employment? The three principal factors are the lack of control, lack of mutuality of obligations and the courier accepted risk in the success of his business. The Claimant could(i) accept a job for the offered price,(ii) accept it for a higher renegotiated price,(iii) accept it and send someone else on his behalf, for whatever fee he agreed with 19 of 22 the substitute, or(iv) reject it. He provided his own van, paid for its MOT and running costs and insurance. 50.4. What is the degree of control? For the reasons stated, in this relationship the Respondent had very little control over its self employed couriers. 50.5. What was the amount of the remuneration and how was it paid? Payment was made gross of tax upon the submission by the courier of an invoice, which he could do himself or use the Respondent’s selfbilling system. The amount of the invoice reflected the jobs that the Claimant had accepted and delivered, at either the price offered or a higher negotiated fee. 50.6. Did the Claimant invest in his own future: who provided the capital and who risked the loss? Who provided the tools and equipment? As stated the Claimant provided his own van (a capital expense) and insured it personally to provide courier services. He paid to maintain his own van. These are costs and risks that the Claimant took, which he would still have to pay even if he was given no or insufficient work. This is in contrast to an employed driver, who would, in all likelihood, be provided with an insured, maintained vehicle. 50.7. Was the Claimant tied to one employer, or was he free to work for others (especially rival enterprises)? The Tender Agreement was clear on this point. The Claimant could undertake his own deliveries or deliver for rivals if he wished. If he completed a rival delivery, he could check to see if there was a Citysprint job for the trip back home. 50.8. How strong is the obligation on the Claimant to work for CitySprint, if and when called on to do so? As stated there was no obligation on the Claimant to take any job when called on to do so. He could reject or accept only if a higher fee was agreed. 20 of 22 50.9. How did the parties themselves see the relationship? For the reasons stated above (including the Claimant’s email to Ms Rodrigues and his acceptance / rejection / renegotiation of jobs) it is my judgment that both parties saw themselves in a relationship that was accurately and fairly described in the Courier Tender Agreement and which had no personal obligation to provide work. 50.10. What were the arrangements for the payment of income tax and national insurance? The Claimant was paid gross and made his own arrangements for the payment of any tax or national insurance. 50.11. How was the arrangement terminable? The arrangement was terminable if the Claimant did not accept any jobs for a period of time, could not confirm that his vehicle was roadworthy, or failed to indicate an availability to work. All of these matters were in the Claimant’s control.[51]For all of the above reasons it is my judgment that there was no personal obligation to provide work. The Claimant was a self-employed contractor and did not, at any time or at all, acquire the status of employee or of worker, as defined by statute. My Judgment (in summary)[52]It is the Judgment of the Tribunal that: 52.1. At all material times the Claimant was engaged as a self-employed contractor. 52.2. The Claimant’s claims of direct race discrimination (s13 Equality Act), harassment related to race (s26 EqA), victimisation (s27 EqA), Holiday Pay and Unathorised Deductions are dismissed due to a lack of jurisdiction. 21 of 22 Judgment delivered orally on 1st August 2025 Approved on 1st August 2025