Miss K John v Water Wings Swim School: 1600111/2021

EMPLOYMENT TRIBUNALS

Case No 1600111/2021

Between

Miss K JohnClaimant

Water Wings Swim SchoolRespondent

Before

Employment Judge C Butcher

Mr M John for claimant

In person for respondent

Date 3 March 2022

JUDGMENT

The Claimant is a worker within the definition of section 230 of the Employment Rights Act 1996(ERA 1996) The Respondent made an unauthorised deduction from wages by failing to pay the Claimant the full amount of wages due from on 25/10/20 and 13/12/20 amounting to £96 (8 hours). The Respondent made an unauthorised deduction in respect of holiday pay in the sum of £144. The Respondent failed to provide written terms of employment for which the Claimant should receive the sum of £192 (2 weeks pay) The Respondent shall pay the Claimant the total sum of £432 from which the Claimant must pay tax and NI.

REASONS

[1]The Claimant, Miss Kasey John, worked for the Respondent as a swimming instructor. By a claim form received on 24/1/21, the Claimant brought a claim for unauthorised deduction of wages in respect of loss of earnings and holiday pay on the basis that she was employed by the Respondent and a worker within the definition of section 230(3) Employment Rights Act (ERA).

[2]The Respondent, Water Wings Swim School Ltd contested the claim that Miss John was a worker within the definition of section 230(3) ERA, asserting that the Claimant was self-employed and was not owed any holiday pay or any other sum. The issues before the Tribunal were

[3]What was the employment status of the Claimant? Although not specifically claimed, was the Claimant an employee of the Respondent in accordance with s230(1) ERA 2006. If not an employee, was the Claimant a worker for the Respondent within the meaning of s230 (3) and /or Regulation 2(1) of the Working Time Regulations 1996?

[4]Was the Claimant therefore entitled to bring a claim before the Tribunal for unauthorised deduction of wages and holiday pay?

[5]If so, did the Respondent make an unlawful deduction of wages by nonpayment of holiday pay and wages?

[6]If the Claimant was an employee or a worker, should she receive a payment under section 38 Employment Act 2002 for the Respondent’s failure to provide a written statement of employment particulars?

The Hearing

[7]I was presented with a bundle of documents amounting to 84 pages and page references to the bundle are shown in square brackets. I also heard evidence from the Claimant, Miss John and both Mr and Mrs Francis, the Respondents.

[8]The hearing was beset with technical issues arising out of connectivity problems and it was necessary to pause the proceedings on several occasions to allow the parties to be reconnected. However, both parties confirmed that they had been able to ask all the questions they wished to raise, and I was satisfied that the parties were afforded sufficient time to put their respective positions to the tribunal.

[9]The Respondent is a small business based in Bridgend, operating a swimming school with 10 swimming instructors, lifeguards and receptionists

[10]The Respondent placed an online job advert in July 2020 for a Swimming Instructor for Water Wings Swim School in Bridgend. The job was described as part-time and offering a salary of £12.00 - £13.50 an hour. The advert described an “employment opportunity for a qualified swimming instructor” and went on to list the available hours of work with the schedule being Monday to Friday and Weekends. 11.Following a meeting between the Claimant and the Respondent, an email was sent by the Respondent offering the Claimant hours at Water Wings. The schedule was set out as follows and described as the same days and times every week. Monday - 4-7.30 (teacher) Tuesday - 4-7.30 (lifeguard) Wednesday - 4-7.30 (teacher) Thursday - 4-7.30 (teacher) Sunday 9-1 (teacher) Teachers’ hourly rate of pay was noted as £12 for the first month, increasing following the first month dependent on retention level of swimmers. Lifeguard pay was £8.50. A start date of 1/9/20 was agreed. The parties disputed whether there had been a discussion about the Claimant’s status at that meeting. Due to a delay in the Claimant providing a Disclosure and Barring Service Certificate (DBS), it is accepted that the Claimant began work on 8/9/20.

[12]The Claimant was provided with a t-shirt with the Water Wings company logo to be worn during her shifts. Her working hours were set for Sundays between 9- 1pm and Tuesdays between 4-7.30. The Claimant was contacted to cover additional shifts in the event that other instructors were not available and the Claimant was also able to obtain cover should this be required [37,38,41,42, 45].

[13]The Claimant was required to complete post lesson assessments and a written record of her hours worked and submit these to Mrs Francis (Company Director). Payment for hours worked were made directly into the Claimant’s bank account. There were no payslips produced, nor were any tax or national insurance payments deducted. The Claimant described these documents as timesheets, whilst the Respondent referred to them as invoices and referred to pages 70-72 to illustrate this.

[14]The Claimant asked the Respondent in a WhatsApp message dated 11/9/20 whether she was to provide her national insurance number. The Respondent replied that this would not be needed as she would not be an employee. It was a self-employed post and the Claimant would be responsible for tax and NI payments at the end of the year [69].

[15]Due to COVID restrictions, a company headed letter was produced for the Claimant confirming that as an employee of the company, she was authorised to travel [36]. Although this evidence was provided by the Claimant, this was not a claim that she was an employee and it was not suggested during the Tribunal that this letter was for any other purpose but to comply with COVID regulations. During the firebreak period 23/10/20-9/11/20, teachers were paid for the Saturday, Sunday and Monday of lockdown to cover administration [48]. The Claimant was unable to teach between 27/11/20 – 7/12/20 having received a positive COVID test [50].

[16]On 12/12/20, the Claimant informed the Respondent (Mrs Francis) via WhatsApp that she had been offered a job that day to work in France and that her last shift would be on 15/12/20. On 13/12/20, the Claimant sent a message to the Respondent (Mr Francis) asking if her assessment sheet had been removed from reception as she had not had the opportunity complete this but would do so once a copy was sent to her [56]. The Respondent agreed to send it to the Claimant within the next 24 hours [81]. The Claimant received a message from Mrs Francis on 15/12/20 stating that they would not be comfortable having the Claimant at the pool and not to attend [57].

[17]During further WhatsApp messages, the Respondent informed the Claimant that there was no money outstanding to her. The payment received during lockdown was for completion of assessments which had not been completed and would therefore be to cover the shift on 13/12/20. The payment for the 15/12/20 shift would be used to refund swimmers for the Sunday she was not going to cover [57,59].

[18]The Claimant brought a claim on the basis that she was a worker of the company and that she had not received payment for her shift on 13/12/20 (5 hours) at £12 per hour. She also claimed non-payment for her shift on 15/12/20 (5 hours) and holiday pay for 1.5 days amounting to £144. The Schedule of Loss completed on behalf of the Claimant claimed an additional sum of 4 weeks statutory pay for failure to provide a statement of terms and conditions 26].

[19]The Respondent disputed the above. Details of invoices issued throughout the relevant period [28] and a Schedule of Loss calculated holiday pay at £84.

The Law

[20]Section 230 ERA 2006 provides the definition of employee, employment and worker as follows: “(1) In this Act, “employee” means an individual who has entered into or who works under (or, where employment has ceased, worked under) a contract of employment. (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 “worker” (except in the phrases “shop worker” and “betting 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 a customer of any profession or business undertaking caried out by the individual; and any reference to the worker’s contract shall be construed accordingly. (5) In this Act “employment” – (a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and (b) in relation to a worker, means employment under his contract, and “employed” shall be construed accordingly..”

[21]Reg 2(1) WTR 1998 adopts the same definition of worker as ERA 2006. An unauthorised deduction of wages is defined at s13(1) Employment Rights Act which states that an employer shall not make a deduction from the wages of a worker employed by him unless:(a) a deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

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

[22]Section 38 Employment Act 2002 provides that an award should be made by the Tribunal in the event of failure to provide written terms and conditions of employment in respect of employees. This was extended to workers after 6.4.20. Caselaw

[23]For the purpose of this Tribunal, if the Claimant was an employee or a worker, then she can pursue all the claims she seeks to pursue. If she is found to be a self-employed contractor, she can pursue none, as the Tribunal does not have jurisdiction to hear them.

[24]In Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2 QB 497

, McKenna J set out the conditions required for a contract of service, namely that “(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.”

[25]There must be an irreducible minimum of obligation on each side to create a contract of service. The employer must be obliged to provide work and the employee to accept what is provided.

[26]In Bates van Winkelhof v Clyde & Co LLP and anor (Public Concern at Work intervening)

2014 ICR 730

and Hospital Medical Group Ltd v Westwood

2013 ICR 415

it established that the following are necessary for an individual to fall within the definition of “worker”: i. There must be a contract, whether written or oral and whether express or implied; ii. The contract must provide for the individual to carry our personal services and iii. Those services must be for the benefit of any other party to the contract who must not be a client or customer of the individual’s profession or business undertaking.

[27]The key factors to be taken into account in determining whether an individual is an employee are:- a) The degree of control that the employer has over the way in which the work is performed; b) Whether there is a mutuality of obligation between the parties, ie was the employer obliged to provide work and was the individual required to work if required; and c) Whether the employee has to do the work personally; d) Were the other terms of the contract consistent with there being an employment relationship? Other relevant factors include:a. The intention of the parties;

b. Custom and practice in the industry;

c. The degree to which the individual is integrated into the employer’s business;

d. The arrangements for tax and national insurance;

e. Whether benefits are provided; and

f. The degree of financial risk taken by the individual.

[28]In the Bates van Winklehof case, Baroness Hale describes control as including the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place when it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant. The right need not be unrestricted”.

[29]The cases of Pimlico Plumbers Ltd v Smith

[2018] IRLR 872

and Uber BV v Aslam

[2018] IRLR 97

are relevant in considering whether the Claimant had the right of substitution and was able to choose her own hours. In Pimlico, the Supreme Court endorsed the principles set out by Sir Terence Etherton MR in his judgment in the same case

[2017] ICR 657

at [84]: “.. I would summarise as follows the applicable principles as to the requirement of personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do the job personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality.. and..the extent to which the right or substitution is limited or occasional. Thirdly, only when the contractor is unable to carry out the work will.. be consistent with personal performance…”.

Findings

[30]I find that the Claimant is a worker as defined by section 230(3) ERA.

[31]I accept the evidence of the Claimant that she was given set hours of work by the Respondent and was provided with a uniform to identify her as a member of staff.

[32]There was no evidence before the Tribunal that the Claimant could provide cover for her shifts from outside the company, nor that this had occurred. The messages relating to changes to shifts show that the Respondent (Mrs Francis) was largely responsible for arranging replacements from within the company. I find that there was an expectation of personal performance and a limited right of substitution.

[33]In relation to hours worked, in her evidence, the Claimant was insistent that the documents were timesheets. There were no figures of value written on the sheets and they detail the hours worked. Whilst I note that the Respondent has labelled these as invoices [70], she does also refer to them as timesheets [p34]. I accept the evidence of the Claimant that any sums considered due to her were added by the Respondent that she did not submit them as invoices. They were handwritten and strongly suggestive that the Claimant was not operating a small business with the Respondent as a client of that business.

[34]The Claimant’s evidence was that she had completed all assessments apart from that for 13/12/20, due to it having been removed from reception. That Mr Francis removed the document is clear from the evidence and he accepted that he did. At no point did the Claimant agree that her pay should be deducted due to this assessment not being completed and there is no evidence before the Tribunal that she did so. In any event, the Respondent informed the Claimant that this sum would be used to refund patrons. It was not described, as the Respondent suggested in evidence, as an overpayment.

[35]The Claimant described the payment made during lockdown as one which all teachers received and viewed it a goodwill payment. The Respondent considered it an overpayment for work not completed. I accept the evidence of the Claimant that she completed all the work she had been in a position to complete and had a reasonable expectation that she would, like the other teachers, receive payment for a shift during lockdown in circumstances where the Claimant was ready and willing to work. As above, the Claimant had not provided consent to this deduction.

[36]With regard to the shift of 15/12/20, in her evidence, the Claimant acknowledged that she did not expect to be paid for work she had not done. Although the Respondent instructed her not to attend and the Claimant had indicated she was available for work, I am not persuaded that the Claimant should receive payment, in the light of her own evidence. The Respondent did not claim that the Clamant should have provided notice, but the Claimant gave only two days’ notice of termination and in my view, the Respondent’s instruction not to attend was not unreasonable.

[37]The Claimant received no holiday pay. I accept the calculation provided by the Claimant that she should receive payment calculated as follows: 1 x 5.6/3.83 = 1.5 days @ £12 per hour which equals £144.

[38]In relation to the failure to provide written terms, in my oral judgment, I erroneously indicated that as I had found the Claimant to be a worker rather than an employee, I would be making no award. In considering this further and having regard to The Employment Rights (Miscellaneous Amendments) Regulations 2019, I award the Claimant the sum equivalent to two week’s pay totalling £192.

[39]It is for the above reasons that I consider the Claimant to be a worker. She was not in a business of her own, she was not able to negotiate her own fees and required permission to take time off and arrange cover. The Claimant paid no rental fee for use of premises and customers paid the Respondent directly. The Claimant was obliged to wear a t-shirt identifying her in her role and the Respondent undertook all COVID measures and operations. I did not find that the Claimant was integrated in the business to the extent that an employee would be.

[40]Although no deductions were made by the Respondent for tax and NI contributions and the Respondent sent a message to the Claimant informing her that she was self-employed, I accept the evidence of the Claimant that she was unaware of the consequences of this and merely checked the money had gone into her bank account and that she had not previously operated a business.

[41]I therefore find that the Claimant’s claim is well founded and that the Respondent made unauthorised deductions from the Claimant’s wages amounting to £240 and the sum of £192 for the failure to provide written terms of employment, from which the Claimant must pay tax and NI.

Findings

[1]An application for reconsideration is an exception to the general principle that (subject to an appeal on a point of law) a decision of the Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (Rule 70).

[2]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor

[2016] EWCA Civ 714

where it said: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party’s representative to draw attention to a particular argument will not generally justify granting a review.”

[3]Similarly, in Liddington v 2gether NHS Foundation Trust

EAT/0002/16

the Employment Appeal Tribunal said: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or reargue matters in a different way or by adopting points previously omitted. There is an underlying policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”

[4]In my letter to the parties dated 13 May 2022, I set out my provisional view that this matter should be reconsidered as having delivered my oral judgment, I made no award for failure to provide a written statement of employment particulars as required by s38 of the Employment Act 2002. That letter states as follows: “The Claimant was found to be a worker and under s38(3) of the Employment Act 2002, the Tribunal must, subject to subsection (5) increase the minimum award and may, if it considers it just and equitable in all circumstances, increase the award by the higher sum. The oral judgment did not take into account the amendments made by regulations 1(2) and 17(2) of the Employment Rights (Miscellaneous Amendments) Regulations 2019 which extends the duty to provide a written statement of particulars to workers. In the written judgment, an award equivalent to two weeks’ amounting to £192 was made. This was a departure from the oral judgment and as such, a reconsideration of the judgment can be considered.”

[5]The parties were given until 23 May 2022 to write to the Employment Tribunal to set out their views on reconsideration and whether a reconsideration could be determined by written submissions. The Respondent was also requested to give reasons if they considered any exceptional circumstances which would make an award unjust or inequitable. The Claimant did not provide a response in relation to the reconsideration. The Respondent did not indicate any exceptional circumstances. In response to this letter, the Respondent requested a reconsideration of the Judgment by email dated 23 May 2022. I have considered all relevant documentation by the parties in the matter.

[6]In their application dated 23 May 2022, the Respondent raises the following points: i) “The absence of a written statement of employment was not pleaded during the hearing, nor at a preliminary hearing heard by Employment Judge Ryan. ii) The amount and date of the unauthorised deductions are incorrect iii) Support by Employment Judge Butcher iv) The Claimant’s witness statement was amended v) The Claimant was cross-examined by Employment Judge Butcher without affirmation or oath vi) References made by Employment Judge Ryan during a preliminary hearing regarding the Claimant’s status and Employment Judge Butcher “ignoring this evidence”. vii) Interruptions made by the Claimant’s father and representative making the Hearing unfair.”

[7]By a further letter dated 1 July 2022 and in accordance with Rule 72(2) of the Employment Tribunal Rules of Procedure 2013, the parties were notified that the application would proceed by way of written submissions in the absence of a hearing and were requested to provide any further written submissions upon which they intended to rely by 15 July 2022. The parties did not request an oral hearing for the reconsideration. No further submissions have been received and I have therefore addressed the matters raised in the Respondent’s application for reconsideration.

[8]In relation to point (i) of the Respondent’s application, the Claimant had provided a Schedule of Loss which was considered at the beginning of the final hearing. The Claimant’s representative confirmed a sum for 4 weeks’ pay in relation to the Respondent’s failure to provide a written statement was being claimed as opposed to 2 weeks due to the emotional stress this matter had caused the Claimant. The Respondent did not question this at the time, nor was the Claimant questioned by the Respondent on this issue. As the Claimant’s claim was upheld, in accordance with s38 Employment Act 2002, the tribunal must… make an award of the minimum amount.

[9]The Respondent did not identify any issues arising in the preliminary hearing heard by Employment Judge Ryan during the Hearing on 3rd March 2022. This has only now come to my attention as part of the Respondent’s application for reconsideration.

[10]In relation to point (ii), the Respondent does not dispute the award in relation to deduction in respect of holiday pay. I refer to paragraphs 35 and 37 of the Judgment and I find nothing to lead me to consider departing from this.

[11]Turning to points (iii) and (vii), the Respondent does not provide any specific detail. It would be a matter of supposition on my part to infer that this suggests I did not conduct the hearing in a fair manner. In the event that this is what the Respondent intends, I have addressed this together with points iv) and vii) raised by the Respondent. At Paragraph 8 of my judgment, I record that both parties confirmed that they had been able to ask all the questions they wished to raise and that I was satisfied that the parties were afforded sufficient time to put their respective positions to the Tribunal. I have in mind at all times Rule 2 of the Tribunal Procedure Rules and my obligation to ensure the parties are on an equal footing and seeking flexibility in the proceedings in order to deal with cases fairly and justly. I have considered these matters carefully and am satisfied that there were no procedural irregularities which would render the Hearing unfair.

[12]With regard to points (iv) and (v), at the beginning of the Claimant’s evidence, the Claimant’s father and representative began asking questions of the Claimant and the Claimant responded. At that point, the Claimant had not affirmed. As soon as this became apparent, I explained this to the parties and asked the Claimant to provide an affirmation dealing with the evidence she had given and the remainder of her evidence. Mr Francis, on behalf of the Respondent confirmed that he was content to proceed on this basis.

[13]I am satisfied that the evidence provided by the Claimant was therefore valid and in accordance Rule 43.

[14]In relation to point (vi), this was not raised by the Respondent at the Hearing on 3 March 2022 and I was not involved in the preliminary hearing. A copy of Employment Judge Ryan’s Order was not provided to me by either party but I have since seen a copy of the Order. The Preliminary Hearing to which the Respondent refers was for case management only and no evidence was given.

[15]The Respondent’s application for reconsideration is allowed in accordance with my preliminary view as set out in my letter to the parties dated 13 May 2022. Following my oral Judgment, I reflected on the amendments made by Regulations 1(2) and 17(2) of the Employment Rights (Miscellaneous Amendments) Regulations 2019. As I found the Claimant to be a worker, I considered I was bound to make an award under s38 Employment Act 2002. This was reflected in my written Judgment.

[16]In relation to the other matters raised in the Respondent’s application, I am satisfied on the basis of what is before me that there is no reasonable prospect of the original Judgment being varied or revoked,