Mr M Bonner and Romick Plant Hire v Chepstow Plant International Ltd: 1600883/2016
EMPLOYMENT TRIBUNALS
Case No 1600883/2016Venue privateHearing 7 March 2017
Between
Mr M Bonner and Romick Plant HireClaimantChepstow Plant International LtdRespondent
Before
Employment Judge BedeauMr J Anderson (instructed by Counsel) for claimantMr R Vernon (instructed by Counsel) for respondentDate 6 October 2017
JUDGMENT
[1]The claimant was not employed by the respondent.[2]The claimant was, at all material times, a worker working for the respondent.
REASONS
[1]By a claim form presented to the tribunal on 30 November 2016, the claimant issued proceedings in his name as First Claimant and by Romick Plant Hire, as Second claimant, in which he claimed that he had been unfairly dismissed and or suffered a detriment on the grounds that he made a protected disclosure/s.[2]In the response presented to the tribunal on 11 January 2017, the respondent averred that the claimant was neither an employee nor a worker and was, therefore, not entitled to pursue either a public interest dismissal and/or detriment claim. He was at all material times a self-employed independent contractor and that Romick Plant Hire could not pursue the claims as a corporate entity. 1 ph judgment + cm Nov 2014 wip version
The issues
[3]At the preliminary hearing held in private on 7 March 2017, Employment Judge Lewis, listed the case for a preliminary hearing for me to hear and determine whether the claimant was either:3.1 an employee within the meaning of section 230(1) Employment Rights Act 1996 “ERA”;3.2 a worker within the meaning of section 230(3) ERA 1996; or3.3 a worker within the meaning section s.43(K)(i)(a) ERA 1996? The evidence[4]I heard evidence from the claimant. On behalf of the respondent evidence was given by Mr Robert Aidan Smith, senior operations manager. In addition to the oral evidence, the parties adduced a joint bundle of documents comprising of 85 pages. References will be made to the documents as numbered in the bundle. The claimant’s application to adduce evidence[5]The claimant’s legal representatives wrote to the tribunal on 24 July 2017, requesting an order that Mr Paul Somers, an employee of the respondent, be ordered to attend to give evidence about whether or not the claimant was required to complete a holiday request form prior to going on leave as that form had to be authorised. The application was refused on 26 July by Employment Judge Lewis, who considered that the relevance of the evidence was limited and that the witness had not been asked to attend voluntarily.[6]It further appears that the claimant had covertly recorded a conversation on 21 July 2017 with Mr Somers without either Mr Somers’ knowledge or permission. A copy of the transcript was disclosed to the respondent’s representatives on 24 July 2017 by the claimant’s representatives who invited them to agree that it could be admitted into evidence at the preliminary hearing.[7]The respondent’s representatives replied on 27 July 2017, opposing the request. They stated that the evidence was of little relevance; where it was relevant the admission of it breached Mr Somers’ Article 8 human rights; and the preferred course of act was to call Mr Somers to give evidence.[8]Mr Anderson, counsel on behalf of the claimant, took me to those parts of the transcript in support of the claimant’s case that he was either an employee or a worker of the respondent. On page 5, the claimant asked in respect of the holiday forms: “Well you still remember that I filled one in” and Mr Somers’ reply was: “Oh yeh yeh”. On page 10, the claimant asked: “Yeh, did he, did he ask you about the holiday form then?” Mr Somers: “What do you mean about the holiday form what? Oh yeh he did ask me about the holiday form and I said yes they’re all on the computer. When the computer came back all that was on there now isn’t on it.” Claimant: “So he’s deleted mine” Mr 2 ph judgment + cm Nov 2014 wip version Somers: “He’s rubbed Gillies off, everybody’s, anybody who had their holiday on my fucking computer has gone.” The claimant: “Rubbed it all off Mr Somers’ computer.”[9]On page 8, it appears that Mr Somers was mindful that he should not be talking to the claimant. He said: “Yeh I’m not supposed to be talking to you at all and I’ve talked to then I could have done for disciplinary and everything.”[10]Mr Anderson submitted that the transcript, for the purposes of the preliminary hearing was limited to the issue of holiday leave and the forms submitted by the claimant to the respondent. He relied on those parts I have made reference to. He acknowledged that the recording was made clandestinely but submitted that I do have a wide discretion under Rule 41, Employment Tribunals Rules of Procedure 2013 and referred me to the case of Chairman and Governors of Amwell View School v Dogherty [2007] IRLR 198, a judgment of the Employment Appeal Tribunal “EAT”.[11]Mr Vernon, counsel on behalf of the respondent, submitted that I should engage in a balancing exercise. On the one hand, there is the claimant’s right to a fair trial and the on the other, Mr Somers’ right to private life as he was not aware that he had been recorded by the claimant and said to the claimant that he should not be talking to him. He did not expect that the conversation would be recorded, transcribed and put before the tribunal to be admitted into evidence. There is on the other hand, the claimant’s position, whether he should be allowed to rely on parts of this evidence in support of his case. The interference with Mr Somers’ Article 8 rights impacted more severely on him than upon the claimant’s right to a fair hearing. Accordingly, Mr Vernon has invited me to exclude those parts of the transcript Mr Anderson relied upon in support of the claimant’s case.[12]The case was stood down for a short while to ascertain whether or not the claimant had requested disclosure of his holiday request forms. When we reconvened, I was told that a request was made on 21 April 2017 and a reply was sent on 9 May 2017, stating that the respondent did not have any holiday request forms for the claimant. The claimant was not required to complete such forms as he was neither an employee nor a worker.[13]In the Dogherty case, the Employment Appeal Tribunal held that an order allowing into the public domain remarks made by the governors during private deliberations did not amount to an interference with the right to “respect for private life” in Article 8 of the European Convention on Human Rights. The privacy element of Article 8 was not engaged. The panel members had put themselves and the contributions they made during the course of their work as school governors, into the public domain whilst acting in their role. They did not retain the right to personal privacy in relation to their participation in their public or quasi public function.[14]The EAT then went on to hold: “The employment tribunal was entitled not to refuse to admit the evidence consisting of recordings on the ground that the evidence had been disclosed very late in the proceedings.” 3 ph judgment + cm Nov 2014 wip version Conclusion on the admissibility of
The evidence
[15]I engaged in a balancing exercise and acknowledged Mr Somers’ right to private life in Article 8 of the European Convention. He was talking to the claimant and believed it was a private conversation, not recorded. My concern, however, was that Mr Somers was indeed aware that the claimant had engaged in legal proceedings against the respondent as the claimant had told him that the respondent had denied that he had filled in holiday request forms. Notwithstanding that, Mr Somers continued in his discussion with the claimant and part way through acknowledged that he should not have been talking to him, the very person who had issued proceedings against the respondent. In my view, he must have known the import of what he was saying to the claimant and ran the risk that the information he disclosed was likely to be used by the claimant in tribunal proceedings as the claimant was telling him that the respondent was challenging his assertion that he had completed the holiday request forms.[16]I have, therefore, come to the conclusion that the extracts referred to me by Mr Anderson, are relevant to the issues in these proceedings and that the claimant’s right to a fair hearing requires reliance on those extracts to the extent circumscribed in Mr Anderson’s address to me. That right to a fair hearing outweighed Mr Somers’ right to private life under Article 8. Applying the judgment in Dogherty I will allow those extracts to be admitted into evidence.
Findings of fact
[17]The respondent is a privately owned, family run business operating within the plant industry. Its business is divided into two sections, contracting and used equipment sales. The used equipment involves plant sales and the purchasing of all categories of machinery. Within the higher end contracts division, equipment is supplied on a national basis to all sectors of industry including quarrying, steelworks, power stations and earth works. The respondent offers services ranging from a single machine on a small contract to several teams for an extensive quarrying operation.[18]In June 2007 Romick Plant Ltd (RPL) was incorporated as a limited liability company with the claimant being the sole director and employee. It has its own accountant for accountancy and tax purposes; is registered for value added tax; and has its own bank account with Lloyds Bank. (page 50 of the joint bundle).[19]By consent, RPL was formally dismissed as a party in these proceedings at the preliminary hearing held on 17 March 2017.[20]On 14 December 2015, the claimant was engaged by the respondent through his company, RPL, to provide work as a labourer driving a dumper truck. He was based on a site in St Albans owned by Tarmac called the Tyttenhanger Quarry. There was no written agreement between RPL and the respondent. There was, however, and oral contract was oral contact between them. There was no contract either written or oral between the claimant and the respondent. 4 ph judgment + cm Nov 2014 wip version[21]At or around the time the claimant commenced work with the respondent he offered to sell, on behalf of RPL, two dumper trucks to the respondent but the offer was rejected. The trucks were later sold by him in April 2016.[22]On his first working day, he had a 45 minutes induction conducted by Tarmac followed by a one hour induction by the respondent. As work on the quarry site is highly regulated, the induction was to do with Tarmac’s and the respondent’s procedures as well as health and safety policies and procedures.[23]The claimant brought in to work, on the first day, a yellow high visibility jacket but was instructed instead to wear the respondent’s yellow high visibility jacket and trousers as well as protective headgear and gloves. He provided his own footwear but signed for the respondent’s personal protective clothing and equipment.[24]In the course of his work, he drove the respondent’s dumper truck.[25]Following discussions with the respondent, it was agreed that for his work on behalf of RPL, he would be paid at the rate of £12.00 per hour. I am satisfied that this was as a result of him negotiating with the respondent a suitable hourly rate of pay. I also acknowledged that other sub-contractors had negotiated a much higher rate of pay of £18.00 per hour.[26]The respondent’s hours of work were from 7am to 7pm although this would extend to 8pm depending on the amount of work required to be done on the day. There is no dispute between the parties that the claimant worked 50-65 hours per week. His times would be recorded on the respondent’s machine and on the operator’s timesheet which included a daily health and safety checklist. These would be completed by either Mr Juby McCulloch, site foreman, or by Mr Alun Jenkinson, site supervisor (40-59).[27]Payment would be made to RPL after the claimant submitted his time sheet covering the work done. RPL would issue an invoice for payment to the respondent giving its VAT number, tax reference and bank details. (38-39, 50, 52, 53 and 55).[28]On 10 February 2016, the claimant had signed personal protective equipment form acknowledging that he received protective glasses, gloves and clothing as well as footwear from the respondent. I was not satisfied that he had used, up until that time, his own PPE, as he had claimed. The evidence given by Mr Smith was to the effect that all workers on the respondent’s site were and are required to wear its PPE in order to project a positive image to third parties and they are provided early on in their engagement.[29]The claimant said that Mr Jenkinson had instructed him to train new drivers on the use of a dumper truck and on the respondent’s policies and procedures for which he would be paid the increased rate of £14.00 per hour upon the promise that he would be promoted to team leader. This he agreed to do. He asserted that he became team leader in 2016 but I do not accept his evidence in that regard. I accepted Mr Smith’s evidence that there was no such position in the respondent’s hierarchy nor had there been subsequently to the claimant’s 5 ph judgment + cm Nov 2014 wip version departure. There is the position of lead operator and that person is paid in accordance with a defined salary structure. There is also a procedure to be followed when someone is promoted. Either the site foreman or the site supervisor would put in a request for an increase in pay which would be considered by either Mr Smith or the managing director for approval. The request must demonstrate why that person should be promoted referring to either an increase in responsibilities and duties or additional qualifications or to all three. In the claimant’s case, no such procedure was followed.[30]In order to train the respondent’s staff a person must have the requisite mineral products quality control qualifications which the claimant does not possess. Furthermore, a request for training is normally made in writing. The site supervisor would fill out a request for training form. This would be approved either by Mr Smith or the managing director. A qualified trainer would then be sent to the site to train the employees and/or workers.[31]I find that the claimant was asked to be a buddy to new employees for a limited period, showing them how to drive a dumper truck and advising on the respondent’s policies and procedures. This was distinct from providing formal training to the respondent’s employees and acting as a team leader.[32]I further find that the increase in the claimant’s hourly rate of pay made to RPL, reflected the busy nature of the work required to be done at the time and the demand for people with the claimant’s knowledge and skill. It was increased from £12.00 to £14.00 per hour in or around January 2016, taking into account the demand for experienced labour. The respondent’s Band 3 dumper driver was paid at the rate of £9.22 per hour from December 2015 which was increased to £9.40 in June 2016. The claimant did not benefit from a salary review conducted every June by the respondent and did not receive the 2.5% salary increase in 2016 whereas the respondent’s employees did.[33]I find that there was no discussion between the respondent and the claimant as to whether he could substitute someone in his place to carry out his work. In order to do so, the respondent would have to be satisfied that person had the requisite knowledge and skills to carry out the work and had been inducted by Tarmac as well as itself.[34]In the response presented to the tribunal on 11 January 2017, in paragraph 24 of Rider A, the respondent wrote the following: “The first claimant worked varying hours depending upon when he wanted to work and what hours were available for him. The first claimant was informed on a Monday morning what the site was working and what hours were available for him should he choose to work them. On average he worked between 50 to 65 hours per week.” (30)[35]The claimant took leave for one week commencing 18 July 2016. He said that he completed the holiday request form following the advice given to him by Mr Paul Somers, site supervisor. This form could not be found by the respondent and it has denied that the claimant was required to submit such a form for leave to be approved. 6 ph judgment + cm Nov 2014 wip version[36]From reading the transcript of the recording made of the claimant’s conversation with Mr Somers on 21 July 2017, that Mr Somers appear to be admitting that the claimant did complete such a form. I accept that he did but there was no indication that Mr Somers had treated the claimant as an employee in such circumstances. A worker equally is entitled to leave with pay. The claimant was not, however, paid for the one week he took as leave. He also did not raise a grievance in respect of the non-payment.[37]Although the claimant said that he was paid for days when work was not available, for example, due to rain or when the quarry was waterlogged, such an account was neither in his witness statement nor in his claim form. He took me through the timesheets showing that he had been paid the minimum period of eight hours when work was not available but I was not satisfied that he had left the respondent’s site on those occasions or that he did not carry out some form of work for the respondent on the days in question. What had been recorded in the timesheets are his start and finishing times with no reference to him having left site. He might not have been working the quarry, but still working for the respondent in some other capacity, for example, cleaning or being engaged in the maintenance of the respondent’s equipment. It made no sense sending the claimant, other workers and employees home when it was raining as the respondent did not know how long it would last. Its practice was to keep the workers and its employees on site.[38]The claimant took one day’s sick leave for which he was not paid. He did not challenge the non-payment based on his assertion that as an employee he should have been paid.[39]His duties, like the other workers and employees at the Tyttenhanger site, were placed on a board and would follow what was required of him on any particular day. He knew that his shift would come to an end either at 7pm or extended to 8pm. I was satisfied that he worked long hours including overtime and at weekends but this was at his own choosing. He told me that the pay was good and that he enjoyed working at the site.[40]The respondent’s employees were paid through its payroll with income tax and national insurance deducted. In the claimant’s case, he was not paid through that process and neither did the respondent deduct tax nor national insurance. He held a Construction Industry Scheme card. Under that scheme RPL, as the contractor, would be responsible for deducting money from the claimant’s earnings and passing it on to Her Majesty’s Revenue and Customs.[41]On 1 August 2016, the respondent had concerns about the claimant’s conduct in relation to an internal investigation and terminated its contract with RPL. The claimant was then told that he would no longer be engaged in work with the respondent. I was satisfied that the respondent did not follow any recognised disciplinary procedures in terminating his engagement.[42]Reference has been made to a statement prepared by Mr Smith as part of the grievance lodged by the claimant on 15 August 2016. The statement dated 29 September 2016, referred to the claimant allegedly saying to Mr Smith when he was told that the respondent was not able to offer him further work that he knew 7 ph judgment + cm Nov 2014 wip version he was self-employed and the respondent had no obligation to find work for him. (64-65)[43]I do not place much credence on Mr Smith’s statement as it came after a letter had been sent by the claimant’s solicitors dated 15 September 2016 in which they asserted that the claimant was an employee, had been unfairly dismissed and suffered detriments for whistleblowing. (64-65, 67-73). Submissions[44]I have taken into account the submissions by Mr Anderson, counsel on behalf of the claimant and by Mr Vernon, counsel on behalf of the respondent. Their submissions were in writing and supplemented orally. I do not propose to repeat them herein having regard to Rule 62(5) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended.
The law
[45]Section 103A, Employment Rights Act 1996, gives an employee the right to claim unfair dismissal if the reason or the principal reason for his or her dismissal is that they made a protected disclosure. There is no qualifying period of service but it is restricted to an employee.[46]Section 47B ERA provides that a worker shall not be subjected to any detriment on the ground that he or she made a protected disclosure.[47]Sections 230(1), 230(3) and 43(K)(1)(a) ERA defines an employee and a worker respectively. Section 230 provides: “(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. (2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is expressed) 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 expressed) 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 professional business undertaking carried on by the individual; And any reference to a worker’s contract shall be construed accordingly.”[48]On the definition of a “worker” under the public interest disclosure provisions in Part IVA, the relevant part of section 43K ERA, states: “43K Extension of meaning of “worker” etc. for Part IVA. 8 ph judgment + cm Nov 2014 wip version (1) For the purposes of this Part “worker ” includes an individual who is not a worker as defined by section 230(3) but who— (a) works or worked for a person in circumstances in which— (i) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them, (b)contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”,”[49]In the case of Ready Mix Concrete (South East) Limited v Minister of Pensions and National Insurance, [1968] 2 QBD 497, an employment tribunal, in determining employment status, should consider whether there was mutuality of obligations; control; and any other provisions in the contract consistent with it being a contract of service. The starting point is to look to see whether there was a written contract.[50]I have taken into account the cases referred to me of: Windle v Secretary of State for Justice [2015] ICR 156; Montgomery v Johnson Underwood Ltd [2001] ICR 819; Bates van Winkelhof v Clyde & Co LLP [2014] ICR 730; Cotswold Developments Construction Ltd v Williams [206] IRLR 181; Byrne Bros (Formwork) Ltd v Baird [2002] ICR 667; Chairman and Governors of Amwell View School v Doherty [2007] IRLR 198; Autoclenz Ltd v Belcher [2011] ICR 1157; Catamaran Cruisers Lt v Williams [1994] IRLR 386; Pimlico Plumbers Ltd v Smith [2017] IRLR 323; Keppel Seghers UK Ltd v Hinds [2014] IRLR 754; Croke v Hydro Aluminium Worcester Ltd [2007] ICR 1303; McTigue v University Hospital Bristol NHS Foundation Trust [2016] IRLR 742; and Day v Lewisham & Greenwich NHS Trust [2016] ICR 878.[51]In Autoclenz Ltd v Belcher, the Supreme Court having considered the authorities, held that in determining whether there is an employment relationship the question to ask is, “What was the true agreement between the parties?”, Lord Clarke, paragraph 29. In that case the Court had to look at the terms of the written agreement between the parties and further held that a written contract is not necessarily determinative of the relationship. The focus of the enquiry must be to discover the actual legal obligations of the parties. All relevant evidence must be examined, including: the written term itself, read in the context of the whole agreement; how the parties conduct themselves in practice; and their expectations of each other. There could well be a legal right to provide a substitute worker and the fact that the right is never exercised in practice does not mean that it is not a genuine right. 9 ph judgment + cm Nov 2014 wip version[52]In paragraph 84, Sir Terence Etherton MR, in Pimlico Plumbers Ltd and Another v Smith, in the Court of Appeal, summarised the applicable principles required for personal performance. His Lordship held, “84. Some of those cases are decisions of the Court of Appeal, which are binding on us. Some of them are decisions of the EAT, which are not. In the light of the cases and the language and objects of the relevant legislation, I would summarise as follows the applicable principles as to the requirement for 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 so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance. 85. In the present case the ET was correct to find that, on the proper interpretation of the 2009 Agreement, Mr Smith undertook to provide his services personally within section 230(3)(b) of the ERA, regulation 2 of the WTR and the definition of "employment" in section 83(2) of the EA.”[53]In Croke v Hydro Aluminium Worcester Ltd, the claimant, an engineer, in July 2001, incorporated Amerstar Ltd. He was the sole director with his wife as company secretary. Huxley is a recruitment consultancy providing recruitment services primarily in the field of information technology and engineering. The claimant signed, as director of Amerstar, a contact with Huxley for the provision by his company of technical services and was not a party to it. There was a substitution clause in the agreement allowing Amerstar, “the service provider” to substitute the claimant if the services remain as set out in the agreement and the client was satisfied that the substitute possessed the necessary skills and resources to fulfil the services and he or she would comply with health, safety, security and confidentiality requirements.[54]In the agreement between Huxley and Hydro, Huxley, “the company” agreed to supply technical services. Hydro was described as “the client”. The service provider was “the limited companies employing the consultants and with whom the company as contracted to carry out the services…” The claimant was defined as “the consultant”. The contract permitted Huxley to substitute the consultant similar to that contractual provision between Amerstar and Huxley.[55]The claimant worked on two contracts between Hydro and Huxley. Amerstar sent a monthly invoice to Huxley supported by the claimant’s time sheet for the provision of intellectual engineering consultancy services. Huxley sent a monthly invoice to Hydro. Payment by Huxley to Amerstar was not dependent on payment by Hydro to Huxley. Amerstar paid the claimant on an “as and when 10 ph judgment + cm Nov 2014 wip version required” basis. Details of his salary were in Amerstar’s annual audited accounts. The claimant did not receive dividend payments.[56]Huxley provided at least three other consultant engineers who worked on the same project, each using their own limited companies as “the service provider”.[57]There was a dispute between the claimant and Hydro resulting in Hydro notifying Huxley that it no longer required his services on the site.[58]The EAT referred to the following findings of fact: “11. Throughout the two contracts Mr Croke was the only consulting engineer provided by Amerstar. In evidence, Mr Vine admitted that he would have been unhappy to accept a substitute because he had spent time training Mr Croke to carry out the necessary engineering tasks. Mr Vine accepted that, although Mr Croke was not subject to Hydro's disciplinary processes and could, within reason, choose his own time to attend work, in practice he attended during normal working hours. Mr Croke was provided with the IT equipment necessary. He received neither holiday pay nor sick pay but was subject to Mr Vine's overall direction when working at Hydro. Mr Croke was an experienced engineer operating on a contract where he was expected principally to be self managed, but was still working in accordance with Mr Vine's general direction.12. During the period Mr Croke worked at Hydro he was identified by name in internal documents and described as a contractor. He was interviewed personally before his company was offered the work through Huxley and his personal details were contained in the temporary work/contract form. He was given a security swipe card to record his presence at Hydro.13. Mr Croke, in his complaint to the ET, asserted that he had suffered detriment as someone who had made a protected interest disclosure. The protected disclosure alleged was raising concerns with Mr Vine that Hydro had failed, or were failing, or were likely to fail, to comply with a legal obligation to Aston Martin. He complained that the detriment he suffered was the termination of his service contract on the basis that he had made a protected disclosure.”[59]Mr Croke did not assert that he was an employee of the respondent but that he was a worker under sections 230(3)(b) and 43K ERA 1996. The Employment Judge dismissed his claim that he was a worker under those provisions in the statute. The EAT held: “40. In our judgment the starting point is the contract between Huxley and Hydro, the contractual vehicle by which any supplying by Huxley to Hydro for the purpose of Hydro's work being done was achieved. Under it, Huxley contracted to provide "the service provider" to Hydro and represented that "the service provider" was contractually engaged by Huxley under a contract for services. "The service provider" was, however, defined in the contract by reference to the fact that it employs "the consultant," identified as Mr Croke. Moreover, although "the service provider" was entitled to substitute Mr Croke under a genuine agreement, it could do so only in circumstances in which both Huxley and Hydro had "a reasonable veto". In fact, the question in this case 11 ph judgment + cm Nov 2014 wip version only arose because Mr. Croke was doing the work and so any right to substitute him had not been exercised. 41. In our judgment, adopting the purposive approach referred to in Tansell, Mr Devonshire is correct in his submission that the ET misdirected themselves in concluding that Mr Croke was not supplied to do that work by Huxley. The ET concluded that Mr Croke "worked for" Hydro by reference to the realities rather than the strict contractual position. Adopting that approach to the question, who "supplied" Mr Croke to Hydro to do the work, the correct answer, in our judgment, is that it was Huxley. He was the consultant named in the schedule as the employee of "the service provider" whom Huxley was agreeing would provide the services and he was the one who was supplied to the end user to perform the work and for whose work the end user paid Huxley.”[60]On the application of section 230(3)(b), the EAT went on to hold that the ET had not erred in law in concluding that there was no contractual relationship between the claimant and Hydro, “48. Since the ET's decision, the EAT, presided over by the President has in James and Greenwich Council UKEAT 0006/06/ZT was given guidance on the circumstances in which a contract may be implied between the worker and end user in circumstances where the worker is supplied through an agency. We refer particularly to paragraphs 56 to 60 in which it is said that, when the arrangements are genuine and when implemented accurately represented the actual relationship between the parties, as is likely to be the case where there is no pre-existing contract between worker and end user, then it will be a rare case where there will be evidence entitling the tribunal to imply a contract between a worker and the end user. If any such contract is to be inferred there must, subsequent to the relationship commencing, be some words or conduct which entitle the tribunal to conclude that the agency arrangements no longer dictate or adequately reflect how the work is actually being performed and that the reality of the relationship is only consistent with the implication of the contract. It will be necessary to show that the worker is working not pursuant to the agency arrangements but because of mutual obligations binding worker and end user which are incompatible with those arrangements. Conclusions Was the claimant employed by the respondent?[61]It is for the claimant to prove that he was an employee of the respondent. There was no written agreement defining the relationship between them. The oral agreement was between RPL and the respondent.[62]Although the claimant’s name was on the board and he worked long hours of between 50 to 65 hours a week, he chose to work those hours because he enjoyed the work and the extra hours were also available. The respondent was, however, under no obligation to provide him with work nor was he obliged the carry out the work. He did not work in inclement weather conditions and was not instructed to go home but was engaged in non-driving duties until he was able to resume his normal driving duties when the weather conditions improved. This is supported by the time sheets. 12 ph judgment + cm Nov 2014 wip version[63]There was little control over his work as he was taken on as an experienced driver and was a buddy to the new drivers. I was satisfied that he was expected to self-manage and did do so.[64]RPL was able to charge the respondent a higher rate of pay for his services when compared with the other dumper truck drivers. The respondent’s payroll paid for his services directly into RPL’s bank account. Its employees, however, had income tax and national insurance deducted at source.[65]The dispute between the claimant and the respondent did not result in disciplinary proceedings, instead he was told to leave.[66]I have concluded, taking the above matters into account, that the claimant was not employed by the respondent. Was the claimant a worker under section 230(3)(b)?[67]I have considered s.230(3) and have come to the conclusion that I am unable to imply a contract between the claimant and the respondent as the end-user. Having regard to James and Greenwich Council, there was no cogent evidence leading me to conclude that the arrangements between RPL and the respondent no longer dictated how the claimant performed his work. Accordingly, I have come to the conclusion that the claimant was not a worker under section 230(3)(b). Was the claimant a worker under section 43K(1)(a)?[68]I have come to the conclusion that the claimant was at all material times a worker within the wider definition in section 43K(1)(a). There was no mutuality of obligation but he performed services as a dumper driver personally and was aware of the work he was required to do and the hours available to him should he choose to work them. These were personal to him and not to any other individual.[69]He could not substitute his services as the respondent required someone with the relevant knowledge, skills and experience as a dumper truck driver who also had already undergone induction training by it and by Tarmac. On this point, I have applied paragraph 84 of the Pimlico Plumbers’ judgment.[70]The judgment in the case of Croke v Hydro Aluminium Worcester Ltd I do have regard to the facts, although not the same, they are similar. An individual providing services through his own company to an end-user can be a worker under section 43K. Through RPL the claimant was introduced as the person who would personally provide its services.[71]Having regard to my judgment, the claimant does not have the right to pursue an unfair dismissal claim under s.103A Employment Rights Act 1996. Accordingly, that claim is struck out. He is, however, entitled to pursue his claim under section 47B. 13 ph judgment + cm Nov 2014 wip version[72]The case has already been listed for a final hearing on Monday 6 through to Thursday 9 November 2017 before a full tribunal.
The facts
[73]Further, both Mr McGill and the claimant said that they could not contact Steve Smith about such matters. The Tribunal does not accept that evidence. Mr Smith has shown he was completely committed to near misses being reported to him, and from the evidence the Tribunal is satisfied that his telephone number was available on site had they wished to contact him.[74]Further, Robert Smith states quite clearly in his witness statement at paragraph 20 that there is no record of any other reports being made by the claimant other than that which had been recorded of 4 July. Suspension of Keith McGill and Dai McCulloch[75]On 19 July 2016 Keith McGill and Dai McCulloch were suspended from site whilst an investigation was conducted following their refusal to partake in a “with cause” drug and alcohol test that had been requested by Juby McCulloch. As the most senior manager on site at the time Alun Jenkinson was placed in charge of undertaking the investigation. The claimant was on holiday.[76]The Tribunal accepts the evidence of Robert Smith that on or around 21 July he was advised by Alun Jenkinson that his internal investigation was being impeded by the claimant. He was told several workers had complained about the claimant’s involvement in discussions surrounding this matter. The Tribunal accepts that is what he was told at the time and that there was a genuine belief that the claimant was indeed interfering in this way. He may have been on holiday and not on the site but could still contact people by telephone. The Tribunal has no doubt that was the respondent’s genuine belief.[77]Alun Jenkinson and Robert Smith subsequently met with the claimant and asked him to refrain from getting involved in the investigation. It was explained to him that his behaviour was hindering the investigation as staff were refusing to speak to them. The claimant was offered the opportunity of temporarily transferring to another project to enable Alun Jenkinson to continue the investigation unhindered. The claimant said that he did not wish to work at another project. It is to be noted that in final submissions the claimant’s representative did not make any argument that the claimant suffered any other detriment (for example by being asked to move to another location) but only pursued the ultimate termination of the arrangement as a detriment.[78]The claimant in cross examination accepted that he had this meeting with Robert Smith and Alun Jenkinson. He accepted they told him not to interfere in the investigation. He also accepted that they offered to move him to another site but he preferred to stay where he was.[79]The only reference in the claimant’s witness statements to meetings with Robert Smith and Alun Jenkinson is at paragraph 17, and he refers to the meeting on 1 August. He does mention being offered work on another site, but he does not state that he raised anything about the near miss at that meeting, and the Tribunal does not find that he did.[80]Neither is it accepted that the claimant handed over his near miss book to the respondent. Conversation in car park with Adam Conway[81]The Tribunal heard evidence from Adam Conway who worked for the respondent from 16 May 2016 until the 27 March 2018 as a labourer/trainee machine operator. He was paired with the claimant as one of the most experienced drivers on site at the time. This was part of the ‘buddy system’ that the respondent had in place. Mr Conway was one of the youngest and most inexperienced employees, but the Tribunal is satisfied that he came to the Tribunal and gave his evidence in the most honest and straightforward manner.[82]The claimant had decided that Juby McCulloch was spending company money in paying Adam Conway to take him to Stanstead airport when he flew back to Scotland at weekends and that this had not been approved by the respondent. Adam Conway was subsequently approached by the claimant, Keith McGill and Dai McCulloch in the site canteen as they had become aware that he was transporting Juby McCulloch to the airport outside of work hours. They publicly questioned him about the transfer and he believed it was an attempt to belittle him in front of colleagues. Mr Conway always understood that there was an agreement that had been approved by management that he be reimbursed for this work. He therefore informed them that he was paid through the company and the time that he was taking to transfer Juby McCulloch to the airport was being reflected in his timesheet.[83]After Keith McGill and Dai McCulloch were suspended Adam Conway was asked to call Keith McGill. He was then approached by the claimant who informed him that Dai McCulloch would be contacting him. He was contacted by him by telephone and told that Keith McGill and Dai McCulloch were going to be building a case against Juby McCulloch and would be asking Adam Conway for a statement surrounding his taking Juby McCulloch to the airport. He was approached by the claimant, Keith McGill and Dai McCulloch by telephone and in person to get him to provide evidence to support their challenge of their suspension.[84]On 29 July 2016 the claimant approached Adam Conway in the car park. Unbeknown to Mr Conway the claimant recorded the conversation that they had. In the conversation the tribunal accepts that Mr Conway is stating that he did not want to get involved. The claimant states that they had to get the truth out to discredit Juby McCulloch and that “it’s corruption mate, it’s err … it’s misuse of company funds”. The tribunal is satisfied that Mr Conway was trying to get away from him and that the claimant was pressurising a much younger employee who is saying he clearly did not want to get involved. Mr Conway told the Tribunal that he believed at that point he still had some work to do and that his radio was going. In his answers in appearing to agree with the claimant the Tribunal is satisfied this was his way of responding to someone who was intimidating him, who he wanted to get away from without causing a scene or confrontation.[85]The very next day Mr Conway raised a grievance and met with Alun Jenkinson to discuss it. Although it was not a formal written grievance there was a meeting to discuss it and he made it clear in his meeting that he did not want to get involved.[86]On 1 August 2016 the claimant was advised that whilst the investigation into his two colleagues was continuing he was not allowed onto the site.[87]The claimant submitted a grievance on 15 August 2016. He asserted he believed the respondent had failed to observe its statutory duties and the Health and Safety at Work Act, the management of health and safety at work and the “Whistleblowers Act”.[88]By letter of 30 August 2016 the claimant was advised that his letter had been considered, emphasising that the respondent took matters concerning health and safety very seriously. It refuted the suggestion he had been victimised or harassed for having raised such. They had terminated the contract: “In view of the fact that you were threatening and intimidating company employees who were acting as witnesses as part of an internal company investigation. We asked you to refrain from discussing the investigation with the company’s operators, but despite our request you continued to share your views and intimidate some of the company’s employees. Such behaviour is entirely unacceptable and not in keeping with the company’s ethos. We therefore took the decision to continue to engage you as a self-employed contractor”. Statement of David Roach[89]It was suggested that a draft statement exhibited to Mr Roach’s statement had been fabricated but the Tribunal does not accept that position. Robert Smith it accepts had typed up his recollection of his discussion with Mr Roach as a statement. He had wanted him to sign it but it never was. The tribunal does not accept that he offered Mr Roach a cash incentive to sign it. Mr Roach was an individual living on the campsite with the claimant. When Mr Smith came to the site in October Juby McCulloch told him that David Roach wanted to speak to him. He drove in his 4x4 to the area where Mr Roach was working on his own. He was extremely nervous about talking to Mr Smith but felt the truth needed to come out and spoke to him about drinking and drug taking on site. He did not want to put that into a statement but wanted to talk to him. Because of his position Robert Smith felt he had to type exactly what had been said to him. He left that with Juby McCulloch as a transcript and said that he knew David Roach did not want to sign it but that he should do the right thing and sign. He did not do so. Mr Smith then sent the typewritten document to the solicitors which is how it came to be in evidence. The Tribunal is satisfied that Mr Smith would not have made up this statement, that it was a written account of what he was told.
Relevant Law
[90]The claim that is brought is one of detriment under s.47B Employment Rights Act 1996. It must therefore be established there was a protected disclosure within the meaning of s.43B. That section provides:- 43B Disclosures qualifying for protection. (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[91]The disclosure is to be made to the employer within section 43C ‘or other responsible person’ within the meaning of that section. The subsequent sections provide for other methods of disclosure but none are relied upon in the circumstances of this case.[92]Guidance was given in Fecitt and others & Public Concern at Work v NHS Manchester [2012] IRLR 64 as to the application of these provisions. The Court of Appeal stated: ‘With regard to the causal link between making a protected disclosure and suffering detriment, s.47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower. If Parliament had wanted the test for the standard of proof in s.47B to be the same as for unfair dismissal, it could have used precisely the same statutory language. Igen is not strictly applicable since it has an EU context. However, the reasoning which informed the analysis in that case is that unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer's decisions. That principle is equally applicable where the objective is to protect whistleblowers, particularly given the public interest in ensuring that they are not discouraged from coming forward to highlight potential wrongdoing. This creates an anomaly with the situation in unfair dismissal where the protected disclosure must be the sole or principal reason before the dismissal is deemed to be automatically unfair. However, that is simply the result of placing dismissal for this particular reason into the general run of unfair dismissal law.’ Submissions[93]The representatives relied upon the skeleton arguments that they had prepared for the preliminary hearing back in February and then spoke to them orally. Oral submissions on behalf of the Claimant[94]The claimant remains adamant that he reported a near miss to Juby McCulloch on the 7 July. His case has been clear and consistent throughout on that. His instruction to Ian Garner was ignored.[95]With regard to the Near Miss report that was entered on the spreadsheet for the 4 July the respondent will say it is straightforward and that this is when it was reported to Juby McCulloch. However, the documents have not been backed up by the original near miss report the claimant hand wrote. There has been no explanation why that is.[96]Counsel accepted that it would be disingenuous of him to suggest that the near miss report seen at p198 did not find its way onto the spreadsheet, this was however under the control of Juby McCulloch. The procedure depends on him getting it right. Steve Smith accepted that he does not go behind the data on the report to him. There is scope on the facts for the data that makes its way onto the spreadsheet to not necessarily represent the correct position as that is within the custody and control of whoever completes the near miss report. This leads to the question, did Juby McCulloch get the date right on the report he submitted? That cannot be answered by just looking at those two documents together.[97]The Morning Safety Briefing document is a Tarmac document. Counsel was not going to advance a positive case that they falsified it as he accepted the tribunal does not have evidence of that. However, the briefing document for the 1 July 2016 is ‘curious’. It refers to what appears to be the Chepstow near miss. There is a dispute as to whether these documents went to the respondent. The claimant’s case is that they do. There is an irresistible conclusion that it refers to the near miss which the claimant reported. There is however no entry on the spreadsheet for the 1 July.[98]Counsel accepted it was difficult to see what conclusion the tribunal could draw from p140. However, he submitted it put into question the veracity of the documents produced by the respondent. He was not suggesting it was anyone’s fault that it did not find its way onto the spreadsheet but it appeared to back up the position, which he acknowledged could not be conclusive, that Mr McGill handed the near miss report to Tarmac on the 11th July. On the balance of probability and looking at the date, as the 1st is not dissimilar to the 11th the tribunal can conclude that this document is probative of a determination that Mr McGill communicated the near miss to Tarmac on the 11 July. He accepted that was not conclusive.[99]The claimant’s position is that the dates have been changed. Counsel accepted that they can’t show that.[100]The following could however be deduced:100.1 that not all near miss reports appear on the spreadsheet.100.2 That the near miss report of the 4 July 2016 is not reliable100.3 The narrative on the Tarmac briefing of the 1 July is consistent with what the claimant reported100.4 On the balance of probability, the tribunal can accept that the claimant is right that he made a report to Tarmac on the 7 July and that it was ignored.[101]Dealing with the safety briefing on the 5 July the respondent is keen to point out that the near miss was dealt with on the 5 July. There are two witnesses who categorically dispute their signature on that document. It is significant that included Mr Roach and not just the claimant. His evidence was powerful as he emphasised he ‘swore on his kid’s life’ that it was not his signature.[102]The claimant asserts that this document is convenient to the respondent as it corroborates that they dealt with the near miss the next day after it was reported, as they state, on the 4th. The claimant paid for expert evidence which it is accepted is not conclusive but states there is ‘moderate’ level of evidence it is not his signature. There are legitimate concerns although it was accepted there may not be evidence as to how this document was created.[103]The claimant relies predominantly on the termination of his contract as the detriment. The suggestion he moved site was not really looked at in evidence and Counsel stated he was not going to ask the tribunal to make a determination of detriment in relation to that.[104]Has the respondent proven the termination was not on the grounds of protected disclosure? The representatives are agreed on the test as set out in Fecitt. Has the respondent given a full picture and is it really the case that in view of what the claimant said to Andy Conway the respondent moved straight to termination. That it was submitted is not the full picture. It might be a partial picture. There must have been something else for the respondent to jump to that conclusion rather than move the claimant to another site.[105]It was submitted that the respondent’s case has slightly shifted. In Alun Jenkinson’s statement there was a suggestion that the termination was because the claimant was interfering with the investigation by contacting numerous employees. He appears to be the only person who has direct evidence of contact with those employees that the claimant is meant to have contacted. If it was so serious where are those people and who are they. Whilst accepting Mr Jenkinson’s valid reason for not attending to give evidence he was the only one with that direct knowledge. Robert Smith didn’t have and seems to have abandoned the suggestion there were other employees who were intimidated.[106]It is arguable that the claimant should not have contacted Adam Conway. He was however entitled to have a conversation with him. There is no evidence he was putting pressure on him or bullying him. It does not appear that the claimant was interfering. He was asking Adam Conway to tell the truth. That is not pressure. The transcript does not give evidence of interference. There must have been something else on the respondent’s mind.[107]The respondent has not discharged the burden of proof on it of showing that the termination was not on the grounds of the protected disclosure. Oral submissions on behalf of the respondent[108]It was submitted there must be a causative link between the protected disclosure and the alleged detriment. It must materially influence the treatment of the worker. The respondent submitted that had not been made out. It was accepted that the burden falls on the respondent to show the grounds why the relationship was terminated. Even however if the respondent does not discharge that burden it does not mean that the claimant automatically succeeds in his claim. It is still a matter for the tribunal to assess.[109]Counsel question whether it was probable that the respondent treated the claimant to his detriment because he made a near miss report. It is not if the background is looked at. The respondent took the claimant through induction, health and safety and courses on the importance of near miss reporting. The respondent takes health and safety seriously. The email of Robert Smith to the staff demonstrates active encouragement to report near misses. Steve Smith was also concerned about the level of reporting and it did increase. It was seen as a positive thing to do.[110]It has been seen how when there was a report on 27 June the men were stood down. That is important and an indication of even an anonymous report being acted upon.[111]The respondent’s witnesses were clear, coherent, consistent and helpful. They were doing their best to help the tribunal. The claimants witness not so. The claimant was it was submitted irreparably damaged by cross examination. Mr McGill showed a number of inconsistencies. Mr Roach’s attitude and demeanour showed he did not want to be here and was evasive. Where there was a conflict the tribunal should prefer the evidence of the respondent.[112]The tribunal must be conscious that there is a big difference between evidence and speculation. The claimant invites it to speculate with not one shed of evidence to support the date he gives of his report. On the other hand there is a volume of evidence to support the respondent’s contentions.[113]The claimant’s case is based on a huge conspiracy theory involving the respondent, its employee and Tarmac to a certain extent, to cover up a near miss report on the 7 July and to do everything including fabricating documents in pursuit of that. There is no evidence as to why it would do that. No reason is advanced by the claimant.[114]When documents were put to the claimant and his witnesses they made no concessions but at every stage alleged the document to be wrong, forged or tampered with in a way that cannot be identified. It stretches credibility ‘beyond breaking point’ it was submitted. The claimant cannot explain the respondent’s documents save to say that they cover up something.[115]The documents should be taken at face value. They show the chain of events. The claimant reported a near miss on the 4th July which was dealt with on the 5th and Steve Smith’s signature is on the spreadsheet signing that incident off.[116]With regard to the meeting on the 5 July it is accepted that perhaps not every signature was there but it is not a formal register. It is not difficult to envisage circumstances where on a busy site not everyone signs or not in the correct box. That does not mean that the document was created. There is a correlation between the documents for example between p143 the Tarmac briefing of the 5 July and the staff briefing on the same date.[117]The claimant asserts that the Tarmac briefing note of the 1 July should be the 11th to coincide with his alleged report to Mr McGill. There is no basis for concluding that. It is not the respondent’s case that there was a near miss earlier than the 4 July. The respondent cannot really explain the document for the 1 July as it is not its document. That does not detract from the respondent’s position that the claimant made a disclosure of a near miss on the 4 July which was dealt with on the 5th.[118]The expert handwriting evidence is not conclusive. Even the claimant’s evidence only gives ‘moderate support’ to it not being his signature. There were limitations to the examination as stated in the respondent’s report. The evidence is inconclusive with both experts recognising the limitations of the signatures provided.[119]The only detriment now relied upon is the termination of the contract the claimant had with the respondent. It is for the respondent to show the reason for the termination and it has done that. There were concerns expressed by Alun Jenkinson that the claimant was interfering with his investigation. The claimant was called to a meeting and told that. He accepted he was told not to interfere. The claimant then had a conversation with Adam Conway and it is clear he was putting pressure on him. Adam Conway raised a grievance the next day. The respondent had told the claimant not to interfere but he continued to do so. His termination had nothing to do with the protected disclosure.[120]It was suggested that Juby McCulloch in some way covered up the report on the 7 July and/or was instrumental in the claimant’s termination. Robert Smith terminated it and Juby McCulloch had no involvement in that. The Tribunal’s
Conclusions
[121]The claimant relies upon making a protected disclosure on 7 July. The Tribunal accepts the respondent’s submissions that that case must fail as the Tribunal does not find there was such a disclosure. From its findings of fact, it is satisfied no disclosure was made by the claimant on that date. A disclosure was made on the 4 July and dealt with by the respondent on the 5th but the claimant was not subjected to any detriment arising from raising that.[122]The Tribunal has also concluded that no disclosure was made by the claimant to either the respondent or to Tarmac on 11 July. There is no evidence in the documents to support the contention it was raised at the Tarmac meeting on the 11 July. To suggest without any evidence that the meeting summary of the 1 July should read the 11th cannot be accepted and is without foundation.[123]The claimant’s engagement was terminated for interference in the investigation. All the respondent’s witnesses have shown how committed the respondent is to the reporting of near misses, and Robert Smith actively encouraged reporting. The claimant does not point to anyone else that was treated detrimentally for raising these. The claimant only made one report. His conspiracy of fabricated documents by the respondent is now so wide as to lack all credibility. It is all conjecture against unnamed people at the respondent and Tarmac and cannot be accepted.[124]With regards to the issue with Adam Conway and whether he was taking Juby McCulloch to the airport, this was none of the claimant’s business and was in fact an arrangement approved by the respondent. The tribunal has concluded from Adam Conway’s evidence that he had felt intimidated by the claimant. He raised a grievance about that.[125]The engagement of the claimant was terminated as, having been asked not to interfere in an internal investigation, he continued to do so. It was not due to anything to do with a protected disclosure. His claim therefore fails and is dismissed.