Ms E Donkor-Baah v University Hospitals Birmingham NHS Foundation Trust: 1302342/2019

EMPLOYMENT TRIBUNALS

Case No 1302342/2019

Between

Ms E Donkor-BaahClaimant

University Hospitals Birmingham NHS Foundation Trust and othersRespondent

Before

Employment Judge Broughton

Date 18 January 2022

JUDGMENT

The claimant’s application dated 15 November 2020 for reconsideration of the para 1 of the judgment sent to the parties on 2 November, that the claimant’s claim under Regulation 12 of the Agency Workers Regulations 2010 is dismissed on withdrawal, is refused.

REASONS

I find that that there is no reasonable prospect of the original decision being varied or revoked because:

[1]The claimant’s claim under Regulation 12 of the Agency Workers Regulations 2010 was withdrawn in the following circumstances:a. Having heard representations from the parties I determined that the Regulation 12 AWR claim had little reasonable prospect of success. Having given oral reasons for that decision I informed the parties that this claim would be subject to a deposit order. The claimant told me that she wanted to withdraw the claim because she feared I would make the maximum deposit order. I reassured the claimant that I would not make any deposit order without considering her means. The claimant nevertheless insisted that she wished to withdraw that claim. I asked the claimant to consider this carefully and encouraged her not to do so but for her to allow me to assess her means and make the deposit order. She would then have time to consider whether she wanted to continue with the claim or not. The claimant was adamant that was she wanted to Case No: 1302342/2019 11.6C Judgment – Reconsideration refused – claimant - rule 72 withdraw. In the circumstances I was therefore satisfied that the withdrawal was clear, unambiguous, and unequivocal.

b. I am satisfied that the claimant understood that she was withdrawing her claim and what that meant. She gave me no indication that she failed to understand the implications of this step, indeed despite the fact the claimant is a litigant in person she has clearly the time to research the Employment Tribunals rule and presented me with clear legal arguments. I have no reason to question her judgment. I offered her the chance to change her mind and this was refused. Taking into account fairness and the overriding objective I am satisfied that the decision to accept the claimant’s withdrawal and to dismiss that claim was correct in the circumstances taking into account the guidance in Drysdale v Department of Transport (Maritime and Coastguard Agency) (CA,

[2014] EWCA Civ 1083

c. At the time the claimant withdrew her claim she did not express a wish to reserve the right to bring a further claim and therefore it was appropriate for me to dismiss the claim under Rule 52.

[2]The claimant has referred to matters relating to the hearing and my decision, although not strictly relevant to my decision on this reconsideration I will comment on these in brief terms.a. The claimant submitted an electronic bundle which runs to 382 pages for an in-person open preliminary hearing in addition to the bundle which had been prepared on behalf of the respondents. I consider that the size of that bundle is disproportionate for a one-day preliminary hearing. However the difficulties at this hearing were caused by the fact that the claimant did not provide a hard copy of that bundle. I can now see from the email sent to the employment tribunal that the email attaching the bundle was sent to the tribunal and the respondents at 19.04 the evening before the hearing. I was not aware of its existence until the hearing commenced and, due to the size of the electronic file, it took over an hour for it to be “delivered” to the inbox on my laptop in the course of the hearing. I did not criticise the claimant for the time it took the file to be delivered to my laptop. However my difficulties in the hearing were compounded by the fact that the claimant, when addressing me, repeatedly failed to tell me what document in her bundle she was looking at, appeared to switch between documents without telling me and did not give me time to find the relevant place in a large electronic bundle. I therefore had to interpret her on a number of occasions. I do not accept that that I severely criticised the claimant nor did I fail to have due regard to the overriding objective.

b. The claimant has misrepresented what I had said in the course of the hearing about Regulation 16 of the AWR and other matters including relating to my decision that her claim under Regulation 12 Case No: 1302342/2019 11.6C Judgment – Reconsideration refused – claimant - rule 72 had little prospect of success. It is clear that she disagrees with my decision. However, it is not necessary or appropriate for me to comment on those matters because they are not relevant to the reconsideration of the judgment under Rule 52 dismissing the claim on withdrawal.

Introduction

[3]I am satisfied that a reconsideration of this matter would not be in the interests of justice. Employment Judge Cookson 07 December 2020 Case Number: 1302342/2019 V EMPLOYMENT TRIBUNALS Claimant: Mrs Donkor-Baah Respondent: University Hospitals Birmingham NHS Foundation Trust and others Heard at: Birmingham Employment Tribunal On: 27 January 2021 Before: Employment Judge Cookson (sitting alone) Appearances For the claimant: In person For the first, second and third respondent: Ms Tokhai (solicitor) UPON APPLICATION made by letter dated 16 November 2020 to reconsider the judgment dated 28 October 2020 under rule 71 of the Employment Tribunals Rules of Procedure 2013 and after considering representations at the hearing

[1]At a preliminary hearing on 1 October 2020 I considered a number of applications including one from the fourth respondent to be removed as a party to the proceedings. That application was made on the basis that the claimant’s discursive grounds of claim which run to some 15 pages, fails to identify any particular claim against the fourth respondent.

[2]The claimant objected to the application and said that she wanted to amend her claim to make a claim against the fourth respondent. This was in essence an amendment to her claim against the first respondent under Regulation 17 of the Agency Worker Regulations. Case Number: 1302342/2019

[3]Having considered what the claimant said about that claim and how she said it was made out against the Fourth Respondent I determined that she should not be allowed to amend her claim because I was not satisfied that she explained any legal basis for the new claim and the claim she outlined would have no reasonable prospect of success. In those circumstances it was in the interests of justice to allow the claimant to amend her claim and it was proper to remove the fourth respondent as a respondent because there was no claim pleaded against it.

[4]My decision is recorded in my summary of that case management hearing and I issued a sperate judgment.

[5]On 15 November 2020 the claimant applied for a reconsideration of this decision. After considering the application under Rule 72 I determined that I should accept the application and asked for the parties’ views on whether the application could be considered without a hearing.

[6]I received further representations from the parties and both confirmed that they were content to proceed without a hearing. On that basis I asked both parties to provide me with any further representations under Rule 72(2) by 22 January 2021. No further representations having been received I have determined this application on the basis of the parties written submissions. The claimant’s grounds

[7]The claimant’s application for reconsideration is made on the following grounds: “(1) My claim form contains a claim against the Fourth Respondent for which it has a case to answer; and (2) My application to amend my claim has not been heard in full. I intend to bring new claims against the Fourth Respondent as part of this application. The Tribunal has not yet considered the merits of this claim.” The first ground

[8]The claimants says this in her application for reconsideration: “The Fourth Respondent’s application for strike out was made on the basis that my claim form raised no complaint against them. Judge Cookson agreed with this, and at Paragraph 24 of the Record she writes: “it is correct that the narrative attached to the claim form appears to raise no specific complaint against the Fourth Respondent”. However, I respectfully contend that this is not correct; paragraph 4 on page 11 of my grounds of claim – under the heading Claims/Damages. Although I was unable to adequately particularise this claim in the Preliminary Hearing, I can now particularise it and show why the Fourth Respondent has a case to answer:(1) Whilst I was suspended from working for the First Respondent pending their investigation into the events of 08 and 09 February 2019, I was Case Number: 1302342/2019 entitled to equal treatment rights relating to the basic working and employment conditions (including pay) to those of a worker directly recruited by the First Respondent (Regulation 5(1) AWR).

(2) I contend that if I had been directly recruited as a worker by the First Respondent, then I would have been entitled to be paid my average weekly earnings whilst I was suspended from working for them pending their investigation (Rice Shack Ltd v Obi

UKEAT/0240/17/DM

(3) Pending the investigation, I was suspended from working for the First Respondent without pay. I contend that my suspension without pay therefore constitutes a breach of Regulation 5(1) AWR for which I bring a claim under Regulation 18(2) AWR. 4. Should the Tribunal find in my favour with regards to this claim, then pursuant to Regulation 14(1) and 14(2) AWR, liability would be apportioned between the First Respondent (the hirer) and the Fourth Respondent (the temporary work agency) to the extent that the Tribunal determines each was responsible for the breach.

(4) The above claim is being brought against both the First and the Fourth Respondent; it is not a new claim for which I am seeking to be added as part of an application to amend my claim, rather it is an existing claim already brought under my claim form, only now better particularised. Judge Cookson did not consider whether the Fourth Respondent had a case to answer in respect of this claim. To uphold Order 1.2 and thus allow for the Fourth Respondent to be removed from these proceedings, would be to allow a named Respondent to be removed without considering whether they may be liable for a legitimate claim that was brought in-time against them. I contend that this would not be in the interests of justice, and that the Fourth Respondent should therefore remain listed as a party to these proceedings until the Tribunal determines, having heard evidence, whether they have a case to answer in regard to this claim.”

[9]Turning to the claim form, under the heading “Claims/Damages” the claimant sets out in paragraphs 4 to 24 a number of claims referring to the First, Second and Third Respondents. Nowhere in those 20 paragraphs, which run to approximately 4 and half pages, does she refer to the Fourth Respondent. In the whole of the 15 pages of the particulars of claim, the claimant makes only brief passing reference to the Fourth Respondent only twice, once to identify one and one to say she made them aware of her concerns about the respondents. The particulars claim does not refer to any claim or compliant against the Fourth Respondent.

[10]The Fourth Respondent, in its submissions, objects to the further particularisation that the claimant provides. They point to the fact that the claimant had not been suspended and point out that the claimant’s case can be distinguished from the circumstances which arose in the Rice Shack case. That however is a matter of evidence. In essence the Forth Respondent appears to accept the principle that there could be claim Case Number: 1302342/2019 against them, albeit that it was not expressed in terms in the claim form and it may be misconceived.

[11]For the reasons set out above I do not accept that I was incorrect to find that the claim form contains no claim against the Fourth Respondent. However, I recognise that the claimant is a litigant in person and in the circumstances I accept that she has now explained her claim. Bearing in mind the overriding principle of ensuring the cases are dealt with fairly and justly I consider the claim which the Fourth Respondent in its submissions appears to accept but dispute, should receive judicial consideration. It would not be proper for the removal of the fourth respondent to prevent that. On that basis the fourth respondent should remain a party to the proceedings and accordingly my order to remove the fourth respondent is revoked.

[12]However, I am concerned that the claim set out by the claimant in her reconsideration application has little reasonable prospect of success. The fourth respondent’s grounds for objection rather confusingly refer to the claimant’s “contract of employment”, but they attach the claimant’s contract of services which is, expressly, not a contract of employment. It is a contract which provides that the fourth respondent will seek to secure assignments from time to time for the claimant with a range of employers. The first and third respondents say that the claimant’s assignment was not suspended, it was terminated. In paragraph 15 and 22 of the particulars of claim under the heading Claims/Damages the claimant refers to the termination of her assignment. Accordingly that appears to be common ground between the parties.

[13]If it is correct that as matter of fact the claimant’s assignment was terminated rather than suspended, her complaint under Regulation 5 must be dependent on her being able to show that she had a right to be suspended rather than her assignment being terminated when the concerns about her actions were raised. Regulation 5 AWR relates to relevant terms and conditions, that is the terms set out in Regulation 6. These include rights in relation to pay but not to rights to the application of disciplinary procedures or rights in relation to termination. It appears to me that a claim the claimant should have been suspended rather than having her assignment terminated may be a claim which falls beyond the scope of regulation 5 and therefore there may be grounds which make it appropriate for me to consider striking out the claimant’s claim under Regulation 5 of the AWR or making its continuation subject to a deposit order under Rule 39 because the claim may have little reasonable prospect of success. I have made case management orders in the separate order to enable this matter to be considered. The second ground Case Number: 1302342/2019

[14]Having determined above that the order removing the fourth respondent should be revoked, it is unnecessary for me to consider the second ground of the claimant’s application. I will record however that I consider that ground to be misconceived. The claimant’s application to amend her claim against the fourth respondent was considered at the hearing and refused. My reasons for that are set out in paragraph 26. The orders I made relating to the following preliminary hearing and to the particularisation of the amendment application related to the claims against the first respondent. I made clear in my order that I simply referred to “respondents” in my subsequent orders in light of the removal of the fourth respondent. Employment Judge Cookson 10 February 2021 Case Number: 1302342/2019 11.6C Judgment – Reconsideration refused – claimant - rule 72 EMPLOYMENT TRIBUNALS Claimant: Ms E Donkor-Baah Respondents: University Hospitals Birmingham NHS Foundation Trust and others

[1]Written reasons were requested for my determination that the claimant’s claim under Regulation 12 of the Working Time Regulations made against the first respondent is struck out under Rule 37 of the Employment Tribunal Rules of Procedure because it has no reasonable prospects of success.

[2]I have also determined that the fourth respondent, 4 Recruitment Services Limited, is to be added as a party to the claim under Regulation 12 of the Working Time Regulations 1998 in substitution of the first respondent.

[3]In reaching my decision I considered oral and written submissions from the parties and a bundle of documents presented for this hearing.

[4]In her claim form received in 8 May 2019 the claimant brought, amongst other claims, a claim under regulation 12 of the Working Time Regulations 1998 (WTR) against the first respondent only. The background to this claim is that the claimant was an agency worker who was engaged by the first respondent via the Case No: 1302342/2019 10.8 Reasons – rule 62(3) March 2017 fourth respondent, an employment business. At all material times she worked as a Band 5 Staff nurse at Good Hope Hospital, Sutton Coldfield. The second and third respondents were at all material times employees of the first respondent at Good Hope Hospital. The claimant is of black African ethnicity and a number of her claims relation to alleged race discrimination and victimisation. She also brought claims under the Agency Workers Regulations, breach of contract and unlawful deduction from wages.

[5]By way of background all of the claims in the case arise, essentially, from an incident on the night of 8 February 2019 when the claimant was unable to take her rest break in the staff room of the department where she was working. Following this incident, she says she was subjected to bullying, harassment and discrimination by various individuals, including the second and third respondents, and was suspended by the third respondent after a false allegation was made against her by the second respondent. Her assignment with the first respondent was subsequently terminated. The claimant says her complaint about these matters was not investigated properly. She complains she was victimised as a result of making the complaint.

[6]These written reasons are concerned only with the regulation 12 WTR claim.

[7]Following a previous preliminary hearing and of my own volition I had asked the parties to make representations to me about whether the claimant could bring her claim in relation to the interruption of her rest break against the first respondent under regulation 30 of the Working Time Regulations, as on reflection I was concerned that the tribunal may not have jurisdiction to consider that claim, notwithstanding that this was not a matter which had been raised by the first respondent.

[8]Regulation 30 states as follows: “Regulation 30(1) A worker may present a complaint to an employment tribunal that his employer - (a) has refused to permit him to exercise any right he has under (i) regulation 10(1) or (2), 11(1),

(2) or (3), 12(1) or (4) or 13(1); (ii) regulation 24, in so far as it applies where regulation 10(1), 11(1) or (2) or 12(1) is modified or excluded; or (iii) regulation 25(3) or 27(2); or (b) has failed to pay him the whole or any part of any amount due to him under regulation 14(2) or 16(1).”

[9]Accordingly claims under the WTR must be brought against the employee’s “employer” but there is a provision to deal with agency workers in Regulation 36 and I asked the parties to particularly address whether the claimant fell within the scope of that regulation.

[10]Agency workers not otherwise “workers” Case No: 1302342/2019 10.8 Reasons – rule 62(3) March 2017 “Regulation 36.—(1) This regulation applies in any case where an individual (“the agency worker”)(a) is supplied by a person (“the agent”) to do work for another (“the principal”) under a contract or other arrangements made between the agent and the principal; but

(b) is not, as respects that work, a worker, because of the absence of a worker’s contract between the individual and the agent or the principal; and

(c) is not a party to a contract under which he undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual. (2) In a case where this regulation applies, the other provisions of these Regulations shall have effect as if there were a worker’s contract for the doing of the work by the agency worker made between the agency worker and— (a) whichever of the agent and the principal is responsible for paying the agency worker in respect of the work; or (b) if neither the agent nor the principal is so responsible, whichever of them pays the agency worker in respect of the work, and as if that person were the agency worker’s employer.”

[11]In interpreting these provisions, it is important to have also have regard to the relevant provisions of Regulation 2, which provide definitions of the various terms. It seems to me the relevant definitions are: …. “employer”, in relation to a worker, means the person by whom the worker is (or, where the employment has ceased, was) employed; “employment”, in relation to a worker, means employment under his contract, and “employed” shall be construed accordingly; …. “rest period”, in relation to a worker, means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations; “worker” 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; and any reference to a worker’s contract shall be construed accordingly; …”.

[12]In written submissions received by email on 12 February 2021 before the hearing the claimant said that Regulation 36 did not apply to her. In later written submissions first respondent also asserted that the claimant did not fall within regulation 36 because the claimant was employed by the fourth respondent as a worker under a contract for services and points out that in any event it was the Case No: 1302342/2019 10.8 Reasons – rule 62(3) March 2017 fourth respondent which was responsible for paying the claimant and would therefore be the employer for the purposes of Regulation 36.

[13]Turning then to the claim in this case, the claimant’s claim about the alleged failure to allow her a statutory rest break on the evening of 9 February 2018 has been brought against the first respondent. Although at times the claimant did appear to seek to take a slightly different position, her primary position appears to be that she holds the NHS Trust and its staff responsible for that alleged breach, not the fourth respondent. However, there is no provision under Regulation 30 for a claim to be brought against any person other than the employer (as defined) expect in the limited circumstances allowed by regulation 36 and, as I have noted above, the parties agree Regulation 36 does not apply here.

[14]Notwithstanding this the claimant argued before me that the claim against the first respondent is correctly brought and she relied upon regulation 17 in support of that assertion.

[15]Regulation 17 provides this: “Where during any period a worker is entitled to a rest period, rest break or annual leave both under a provision of these Regulations and under a separate provision (including a provision of his contract), he may not exercise the two rights separately, but may, in taking a rest period, break or leave during that period, take advantage of whichever right is, in any particular respect, the more favourable.”

[16]The claimant argument is that the reference in Regulation 17 to separate provision means she should be able to rely on the Agency Workers Regulations to bring this claim against the first respondent because those regulations allow claims against the hirer as well as the employing employment business.

[17]I have found that this is misreading of Regulation 17. Regulation 17 deals with the situation where workers have a right to time away from work under statutory provisions of the Working Time Regulations and also in, say, in a contract of employment or a staff handbook. It is a provision to ensure that employees who are entitled to longer rest breaks or leave under the non- statutory provisions do not lose that more generous entitlement because of the terms of the WTR but equally clarifies that workers cannot claim both contractual and statutory entitlements to rest breaks or leave. It enables the worker to rely on another provision to determine how long the rest break or leave should not be, not how remedy for breach of any provision should be determined.

Conclusion

[18]I do not accept the claimant’s argument that Regulation 17 of the WTR enables her to bring a Reg 12 WTR claim against the first respondent. The parties that a Reg 12 claim can be brought against is determined by Regulation 30 and 36 and applying those provisions the only possible respondent is the party the claimant Case No: 1302342/2019 10.8 Reasons – rule 62(3) March 2017 had her contract with, that is the fourth respondent. The AWR is irreleveant to this claim. Accordingly I have concluded that the claimant’s claim against the first respondent has no reasonable prospect of success. Substitution of the fourth respondent

[19]In the circumstances I did however conclude that it would be in the interests of justice and in accordance with the overriding objective to substitute the fourth respondent as the correct respondent to this Regulation 12 claim and allowed the claimant to amend her claim accordingly.

[20]The fourth respondent objected to the claimant being allowed to add it as a party to this claim under Rule 34. Mr Olaseinde argued that this claim is not raised against it in the claim form and, because he says the fourth respondent had no part to play in the timing of rest breaks for the workers it supplies to end users, it would not be in the interests of justice to allow the claimant to amend her claim in the way given the costs of defending a claim for which no compensation would in any event be payable.

[21]I determined that the claimant should be allowed to amend her claim so that the first respondent is substituted by the fourth respondent in relation to the Regulation 12 of the WTR. The approach I adopted was to consider all of the circumstances of the case including the balance of hardship and injustice of allowing the amendment against that of refusing it and I took into account the guidance in Ali v Office of National Statistics

[2004] EWCA Civ 1363

[22]I found that the reasons the claimant had brought her claim against the wrong respondent were understandable in all the circumstances. In practical terms, as will be the case for most temporary workers supplied by an employment business, so called “agency workers” like the claimant, the timing and arrangements for rest breaks will be managed by the managers of the hirer. For that reason the claimant’s perception that the fault must lie with the first respondent is understandable. I also noted that the first respondent had not raised any jurisdictional objection to this claim in terms when the response was filed and it was therefore understandable that the claimant’s application to amend was being sometime after the claim had initially been made.

[23]Although it had not been named as being responsible for the alleged breach the fourth respondent has been aware of the regulation 12 WTR claim since the claim was served upon it. In joining the fourth respondent as respondent to this claim there is no change to the substance of the claimant’s claim – her complaint is still that she was deprived of her statutory rights to a break on the night of 8 February 2019 in the course of her work, the issue is simply who should have ensured she was able to exercise those rights.

[24]I do not consider that the fourth respondent’s arguments about the disproportionately of the remedy for this claim in terms of the costs it will face in defending the claim are relevant to the question of whether the amendment should be allowed. The remedy for breach of rest breaks is always declaratory. If the monetary value of the claim was relevant to whether it should be allowed to Case No: 1302342/2019 10.8 Reasons – rule 62(3) March 2017 continue claimants would be denied the remedy they have been provided by Parliament under the WTR. This issue of costs does not arise from the fact the substitution is made outside the statutory time limit, it arises as a result of the nature of the claim and there is no additional prejudice to the fourth respondent. The original claim and the factual basis for it was brought in time and I find that it is in the interests of justice for that claim to be determined by the employment tribunal as envisaged by the legislation, albeit that the claim is correctly to be determined against a different respondent because of the way the law applies to these particular contractual and working arrangements. Employment Judge Cookson 30 July 2021 Case No: 1302342/2019 10.2 Judgment - rule 61 February 2018 EMPLOYMENT TRIBUNALS Claimant: Mrs Donkor-Baah Respondent: University Hospitals Birmingham NHS Foundation Trust and others Heard at: Birmingham Employment Tribunal (by CVP) On: 28 September 2021 Before: Employment Judge Mark Butler Representation Claimant: Representing herself Respondents: Ms Tokhai (Solicitor) for the first respondent and Mr Olaseinde (solicitor) for the fourth respondent. This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was CVP. A face to face hearing was not held because of the ongoing pandemic and all issues could be determined in a remote hearing. OPEN PRELIMINARY HEARING (JUDGMENT)

[1]The claimant’s claims brought under Regulation 5 of the Agency Workers Regulation 2010 against the first and fourth respondent have no reasonable prospects of success and are struck out.

[2]This decision does not affect any of the other claims in this case.

[3]This is the Fourth Preliminary Hearing that has taken place in this case, with the list of issues in this case still not settled. And this is despite the case having been listed for an Alternative Dispute Resolution Hearing (‘ADR Hearing’) to take place on 17 December 2021 and a Final Merits Hearing to take place between 24 January 2022 and 11 February 2022. This is a matter that needs to be addressed Case No: 1302342/2019 10.2 Judgment - rule 61 February 2018 as a matter of urgency, to enable this case to proceed. This case so far has had preliminary hearings before Employment Judge V Jones on 12 June 2020, and Employment Judge Cookson on both 01 October 2021 and 01 June 2021.

[4]Unfortunately, due to time issues in this case, in this hearing I was only able to complete evidence and hear closing submissions on the issue of the date on which the claimant’s assignment with the first respondent ended, if at all, and on whether to strike out the Agency Worker complaint or apply a deposit order. I was unable to address directions for the final hearing or consider the list of issues. Although I am conscious of the history of this case in terms of preliminary hearings, a further preliminary hearing is needed in this case, and separate directions on this will be sent to the parties. In effect, I am converting the ADR Hearing that has been listed to take place 17 December 2021 to be a closed preliminary hearing to settle the issues in this case, and to make directions toward a Final Merits

hearing.

[5]A practical difficulty presented itself in this case in that, despite directions from the tribunal, the parties were not able to agree on a joint bundle (I attach no blame on this matter as it was something that could be accommodated). This resulted in two separate bundles being presented. The claimant’s bundle ran to 148 pages, whilst a bundle presented on behalf of the first and the fourth respondent ran to 373 pages. Unfortunately, the bundle presented by the first and fourth respondent was not in electronic format, and the hard copy had not been sent out to me in advance of this hearing. I am grateful for Mr Olaseinde for getting an electronic version to me during the course of the morning, which enabled this hearing to proceed, albeit with time lost.

[6]For the avoidance of any confusion, if I refer to a document in this judgment that was contained on the bundle presented by the claimant I make reference to Bundle A. And where I refer to a document that was contained in the bundle presented by the respondents I make reference to Bundle B.

[7]I was mindful throughout the hearing that the claimant was unrepresented and that English is not her first language. With this in mind I ensured that guidance from the Equal Treatment Bench Book was considered and applied. This ensured that the claimant was able to effectively participate in this hearing.

[8]It was explained to the parties that I could only hear evidence on matters relevant to the narrow and specific issue that today concerned. This did lead me to having to interject on occasion so as to ensure that I did not hear evidence on matters that may well be relevant to the full case but not on matters before me today.

[9]The claimant gave evidence today, and I heard evidence from Ms K Sanders of the fourth respondent. No witness evidence was presented by the first respondent.

[10]The claimant’s witness statement ran to some 113 paragraphs. It addressed a number of matters that were not needed in this hearing. It was explained that today we would only be focussing on the witness evidence in so far as it was relevant to the narrow issue of whether the first respondent suspended or brought to an end to the claimant’s assignment then.

[11]There were some IT issues in the hearing. There was a time lag in communication being received, in that there appeared to be around 4 seconds between something being said and the claimant receiving it. The respondents were reminded to pause to allow the claimant to hear any question posed and to respond. Case No: 1302342/2019 10.2 Judgment - rule 61 February 2018

Issues

[12]The issues to be determined at this hearing were defined by EJ Cookson at the Preliminary Hearing that took place on 01 June 2021. It is in paragraph 3 of the record of that hearing where EJ Cookson explained what the purpose of today’s hearing was. I copy paragraph 3 in its entirety for the avoidance of any doubt:

[13]In essence, the claimant’s position is that she was suspended by the first respondent on or around 10 February 2019, and that this suspension continued until 06 November 2019, when she was told that she could re-commence booking shifts with the first respondent. The claimant’s claim under Regulation 5 of the Agency Worker Regulations is brought on the basis that this suspension was unpaid, which is treating her lesser than non-agency worker staff who would have been paid in these circumstances. Whereas, the first and fourth respondents’ position is that the claimant’s working with the first respondent was brought to an end after the shift that she worked on 09/10 February 2019, that there was no suspension, and therefore this claim for suspension pay has no basis and should be struck out.

[14]The claimant’s claim under Regulation 5 of the Agency Worker Regulations 2010 is reliant on her assignment with the first respondent continuing and having been suspended from around 10 February 2019 up until 06 November 2019. If this is not the case, then the claim brought under the Agency Worker Regulations has no reasonable prospects of success.

[15]Unfortunately, due to time, I was unable to give the decision to the parties at this hearing nor to give case management directions in a case that really needs further case management.

[16]However, I have sent the parties case management directions alongside this decision, which should hopefully help the parties in moving the case forward toward a final hearing. These directions are contained in a separate case management document.

[17]I have been conscious throughout to ensure that in deciding the issues above, I have not made any findings that may cause difficulties to the tribunal that hears the final merits hearing. Closing remarks/arguments/submissions Case No: 1302342/2019 10.2 Judgment - rule 61 February 2018

[18]I received in advance of the closing remarks of the parties, a skeleton argument prepared on behalf of the first respondent. In addition to this document, I heard oral closing remarks on behalf of both the first and fourth respondent, and from the claimant. I do not repeat those here, but assure the parties that these have all been taken into account when reaching this decision. Rules of Procedure to be applied

[19]The tribunal’s case management power of strike out is contained at Rule 37 of the And this provides that: Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; … (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

[20]The tribunal’s case management power of imposing a deposit order is contained at rule 39 of the And this provides that: Deposit orders 39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order—(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and

(b) the deposit shall be paid to the other party (or, if there is more than Case No: 1302342/2019 10.2 Judgment - rule 61 February 2018 one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order. Findings of Fact I make the following findings of fact based on the balance of probability from the evidence I have read, seen, and heard. Where there is reference to certain aspects of the evidence that have assisted me in making our findings of fact this is not indicative that no other evidence has been considered. My findings were based on all of the evidence and these are merely indicators of some of the evidence considered in order to try to assist the parties understand why I made the findings that we did. I do not make findings in relation to all matters in dispute but only on matters that I consider relevant to deciding on the issues currently before me. I have been extremely careful to try and avoid making any findings of fact that are best left to the tribunal at the final hearing, and which could potentially embarrass that tribunal.

Findings of Fact

[21]The claimant was booked onto a shift with the first respondent on a shift by shift basis. The claimant was not on a block booking with the first respondent. The claimant would identify shifts that she wanted to work and fill in the necessary request. The fourth respondent would email the claimant to confirm the booking and ask the claimant to confirm the booking by phone (there are two examples of this process being followed at pp95 and 96 of Bundle A). Ms Sanders gave clear evidence on this under cross examination that was consistent with the approach in these documents.

[22]On 08 February 2019, the claimant identified and completed a booking request in respect of two shifts. A booking was made by the claimant to work a shift starting at 19.30 on 09 February 2019 and finishing at 07.30 on 10 February. This booking was made at 13.20 on 08 February 2019 (see p.95 of Bundle A). A second booking was made by the claimant to work a shift starting at 19.30 on 10 February 2019 and finishing at 07.30 on 11 February 2019. This booking was made at 13.18 on 08 February 2019 (see p.96 of Bundle A).

[23]Whilst working the shift that was taking place between the hours of 19.30 on 09 February and 07.30 on 10 February, Ms Chesney, the nurse in charge of that night shift, issued a report to Senior nurse Mr Casson identifying a number of matters.

[24]On the basis of Ms Chesney’s report, Mr Casson made the decision to bring the claimant’s shift to an end, and sent her home at 2.30am. The claimant accepted under cross examination that she was sent home at 2.30am. And this is consistent with the documentary evidence (see for example the shift record at p.130 of Bundle A).

[25]The claimant was never told by the first respondent that she was being suspended. This is because the first respondent was not suspending the claimant but it was terminating the claimant’s assignment with it at 2.30am on 10 February 2019. Although the claimant denies this, and seeks to argue that the first respondent did not terminate her assignment at that time, it is more likely than not that the first respondent ended the claimant’s assignment at this time. The Case No: 1302342/2019 10.2 Judgment - rule 61 February 2018 shift records (p.130 Bundle A) clearly record the claimant’s 09/10 February 2019 shift as being ended at 2.30am. The claimant accepts that she was told to end her shift and go home at this time. The claimant records in her claim form that her employment ended on 09 February 2019 (see p.4 of Bundle A), as well as recording in her particulars of claim that there had been a wrongful termination of her assignment (see p.16 of Bundle A). I do not accept the claimant’s explanation that these references in her claim form and the date given by her was to a misunderstanding as English was not her first language. And the reason why I do not accept this is that the claimant has never requested an interpreter despite being aware that she could, and therefore must have confidence in her ability to communicate in English in this process. The documents that she has produced and the way that she presented herself today supports that she has a good working understanding of the English language: she was able to answer questions, cross examine Ms Sanders and make closing submissions. And further, my finding above and the claimant’s position in her claim form is consistent with the claimant not being able to make future bookings until an investigation was concluded (see temporary staffing complaints form at pp.236- 238 of Bundle B). And is further supported by the email of 11 February 2019 from Ms Salter to the fourth respondent where it is expressed that the claimant ‘will be unable to book any further shifts’ and to ‘…ensure that all pre-booked shifts are cancelled’. All of this consistent with the evidence of Ms Sanders.

[26]The first respondent cancelled all future shifts that the claimant had booked before the incident on 10 February 2019 at 02.30. The claimant accepted this under cross-examination.

[27]The fourth respondent in effect treated the claimant as if she had been suspended with pay at 02.30 on 10 February 2019, and paid her for the full shift that she was engaged to do. However, this suspension was only for this shift, as the claimant was booked on a shift by shift basis, and this suspension came to an end when the shift ended at 07.30 on 10 February 2019. This was the unchallenged oral evidence of Ms Sanders. She accepted that the fourth respondent suspended the claimant with pay at this time. That the fourth respondent paid the claimant for the full shift. And that the suspension only covered the duration of the shift on09-10 February 2019, as the claimant was not engaged on a block booking.

[28]The claimant was never given a further shift by the first respondent after the 10 February 2019.

Conclusions

[29]Given the findings above, the claimant’s agency working with the first respondent came to an end at 02.30 on 10 February 2019. The claimant was not engaged in a block booking with the first respondent from which she was suspended.

[30]The matter was confused somewhat by the fourth respondent treating the claimant as suspended with full pay for the duration of the shift across 09 and 10 February 2019. But this does not alter the fact that the claimant’s agency working relationship with the first respondent was brought to an end on 10 February 2019.

[31]The claimant’s Agency Worker claim against both the first and fourth respondent is brought on the basis that she was suspended by the first respondent from the date of the incident until the conclusion of her grievance, that being 06 November 2019. As there was no suspension in the relationship between the claimant and the first respondent, and I have concluded that the relationship was ended on 10 February 2019, it follows then that the claim brought by the claimant under Regulation 5 of the Agency Worker Regulations against both the first respondent Case No: 1302342/2019 10.2 Judgment - rule 61 February 2018 and the fourth respondent has no reasonable prospects of success. And is therefore struck out pursuant to Rule 37. Employment Judge Mark Butler Date: 19 October 2021 Case Number: 1302342/2019 1 EMPLOYMENT TRIBUNALS Claimant Respondent Ms Donkor-Baah v

Conclusions

[1]University Hospitals Birmingham NHS Foundation Trust Sarah Salter Stuart Casson 4 Recruitment Services Ltd