Ms M De Pedro Almela v Smileright Dencare Ltd: 1600109/2019

EMPLOYMENT TRIBUNALS

Case No 1600109/2019

Between

Ms M De Pedro AlmelaClaimant

Smileright Dencare LtdRespondent

Before

Employment Judge Harfield

In person for claimant

Date 3 March 2020

JUDGMENT

The claimant’s claim of unauthorised deduction from wages is struck out on the basis that the Employment Tribunal has no jurisdiction to hear the complaint as the claimant concedes she was not a worker or an employee of the respondent.

REASONS

[1]Employment Judge Beard identified at a case management preliminary hearing on 21 June 2019 (which the claimant did not attend) that claimant’s case was whether there had been an unauthorised deduction from wages, and if so, how much was deducted. Employment Judge Beard identified that this would also involve deciding whether the claimant was an employee or a worker within the meaning of the Employment Rights Act 1996, noting the respondent’s contention that the claimant was a self-employed contractor. Employment Judge Beard also identified there was a question as to what were the contractual terms in respect of a minimum payment under the contract and was that subject to a pro-rata deduction.

[2]The full hearing was due to take place on 28 October 2019 but was postponed due to the non-attendance of the respondent. Employment Judge Frazer decided to grant a preparation time order in the claimant’s favour and made directions for the claimant to prepare a schedule of the amounts she was seeking with provision for the respondent to respond. Employment Judge Frazer directed that the amount would be quantified at today’s hearing. The parties complied with the directions but the respondent also made an application for reconsideration of the decision to grant a preparation time order. That application for reconsideration has not yet been referred to Employment Judge Frazer.

[3]I clarified with the claimant at the start of the hearing that she was seeking 6 days’ pay for a period when she says her working days, in breach of contract, were reduced from 4 days to 3 days a week and 8 days’ pay when she says that her notice period was not properly honoured.

[4]I then clarified with the claimant that the respondent asserts that the claimant was a self employed contractor and not a worker or an employee and that for the claimant to be able to bring a deduction from wages claim in the Employment Tribunal she had to be either an employee or a worker within the meaning of section 230 of the Employment Rights Act. I noted that to be a worker involves working under a contract where the worker undertakes to personally perform work or service for another party to the contract (where that other party is not a client or a customer). I brought to the claimant’s attention that I understood the respondent was saying the claimant was not a worker (or an employee) because the obligation to perform work personally was not made out, because the contract between the parties gives the claimant [see page 42 of the bundle] the right in certain circumstances to appoint a locum or assign the agreement to another dentist.

[5]I asked the claimant if her case was that this written agreement did not reflect the true position between the parties and whether she was saying that she was, at least, a worker. The claimant said that was not her case and that she accepted that she was self-employed but that she thought she was owed sums for breach of that self-employed contract.

[6]I explained to the claimant that in those circumstances the Employment Tribunal did not have jurisdiction to hear her complaint of an unauthorised deduction from wages because to bring that claim she had to be a worker or an employee and the claimant was conceding she was not a worker or an employee1. An individual who is truly self employed cannot bring an unauthorised deduction from wages claim in the Employment Tribunal. I identified to the claimant that to the extent she had any claim for breach of 1 For the sake of completeness I should add that for the claimant to be able to bring a breach of contact claim in the Employment Tribunal she would also have to have been an employee. contract (which I had not assessed) then it would appear such a claim would have to be brought in the county court not the Employment Tribunal. The claimant confirmed that she understood this, that she understood her claim could not proceed in the Employment Tribunal and that she did not have further submissions to make.

[7]On my own initiative I therefore struck out the claimant’s claim on the basis that it had no reasonable prospect of success as the Employment Tribunal does not have jurisdiction to hear the claimant’s claim of unauthorised deduction from wages as a self employed contractor. As this decision to strike out is on a jurisdictional issue there has been no judicial determination of the substance of the claimant’s claim and there is also no dismissal judgment under Rule 52 of the Employment Tribunal Rules of Procedure.

[8]That left the time preparation order. I discussed with the parties whether I could assess the amount due to the claimant subject to the reconsideration application which needs to go back before Employment Judge Frazer. In the end I did not assess the amount as it seemed to me it was more proper for it to go back before Employment Judge Frazer. I was also concerned that some of the work the claimant was seeking to recover under the time preparation order would have had to be undertaken in any event for today’s hearing and therefore from that perspective was not wasted time (save to the extent today’s hearing was ineffective in any event because of the claimant’s concession about her employment status). I therefore directed that the claimant should provide a further schedule within 14 days setting out the work/time she says was wasted or duplicated in having to get ready for the two hearings. The respondent has a further 14 days in which to provide any further comments in response. Both parties should also confirm whether they wish to attend a hearing in person or whether they are content for Employment Judge Frazer to decide the issues on the papers. The respondent’s application for reconsideration of the time preparation order and (if relevant) the quantification of that order will then be considered by Employment Judge Frazer.

[1]The Claimant brought a claim for unlawful deduction from wages on the basis of her engagement with the Respondent as a dentist. The matter was listed for a preliminary hearing on 28th October 2019. The Claimant and the Respondent were informed by the Tribunal that there Newport Road was closed on that date. The parties were notified of the hearing in advance by the Tribunal. The Respondent did not attend and informed the Tribunal on the day that this was because Mr Quail of the Respondent had made an error and got the date wrong. He had not apologized to the Claimant for his nonattendance. I considered that this was unsatisfactory. This consideration formed the basis of the preparation time order owing to the fact that the Claimant had herself attended and prepared for the hearing. I directed her to file a schedule.

[2]On 24th November 2019 Mr Quail wrote to the Tribunal requesting a reconsideration of my decision. He stated that the email address that the Tribunal had used to inform him that Newport Road would be closed was the wrong one and he did not learn of this until 30th October 2019 from the Tribunal and after he had contacted the administration to inform them of the error. He also represented that he had apologised to the Claimant for his nonattendance subsequent to the hearing. The Claimant filed a schedule claiming £923.55 for her expenses and preparation time.

[3]The parties both attended before EJ Harfield on 24th February 2020. At that hearing the Claimant conceded that she was neither a worker nor an employee for the purposes of Employment Rights Act 1996. EJ Harfield struck the claim out on the basis that it had no reasonable prospects of success. The relevant rules on reconsideration

[1]Applications for reconsideration are governed by Rules 70 to 73 of the Tribunal’s Rules of Procedure 2013.

[2]Rule 70 provides that a 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”. Following a reconsideration, a judgment may be confirmed, varied or revoked (and, if revoked, it may be taken again).

[3]Rule 72 describes the process by which an application for reconsideration should be determined. The application should, where practicable, first be considered by the Employment Judge who made the original decision or who chaired the full tribunal that made the original decision. Rule 72(1) requires that judge to refuse the application if he or she “considers that there is no reasonable prospect of the original decision being varied or revoked”. If the judge considers that there is a reasonable prospect of the original decision being varied or revoked, the Rules go on to provide for the application to be determined with or without a further oral hearing.

[4]This document sets out my consideration of the respondent’s application under Rule 70(1).

Conclusion

[5]The conduct to which the preparation time order relates is the Respondent’s non-attendance at the hearing on 28th October 2019. I have considered all of the circumstances very carefully including the fact that the Claimant’s claim was struck out for having no reasonable prospects of success upon her concession that she was self employed. I consider that on this basis there is a reasonable prospect of the order being varied.

[6]I remain of the view that there was no reasonable excuse for Mr Quail’s nonattendance at the hearing on 28th October. He accepted that he had made a mistake as to the date of the hearing. Whether Newport Road was closed was irrelevant as he would not have attended on 28th anyway. He did not say in his application that he had not received the notice of hearing. Therefore I do not consider that there is a reasonable prospect of the order being revoked.

[7]However, on the basis that the Claimant’s application had no reasonable prospects of success, I consider that the preparation time order should be limited to her travel expenses. Therefore the preparation time order shall stand but shall be varied accordingly. The sum payable to her by the Respondent shall be limited to the sum of her £12.55 rail ticket.