Ms K Noble v Jambo Ltd: 1801446/2017
JUDGMENT
[1]Jambo Limited is removed as the Respondent in these proceedings and the claim against Jambo Limited is dismissed.[2]The correct Respondent in these proceedings is RACS Group Limited who are not a party to these proceedings.[3]The claim is accordingly dismissedREASONS
[1]The Claimant presented a claim against Jambo Limited on 23 August 2017 in relation to holiday pay and a breach of the Agency Worker’s Regulations 2010.[2]Although she had in her claim form, identified RACS Group as a Second Respondent. She had not complied with the requirements of early conciliation and did not have an ACAS certificate confirming compliance. She had also incorrectly ticked the box to show that her claim contained an application for interim relief when it did not.[3]Accordingly her claim against RACS Group was rejected by the Tribunal on 25 August 2017, because the exemption claimed did not apply and because the early conciliation process had not been followed with RACS Group. With that rejection notice the Claimant was given details about how to apply for reconsideration and could have then complied with the early conciliation process with RACS Group and presented her claim with a certificate. Any time points that arose as a consequence of that delay could then have been dealt with.[4]At this hearing, I considered the written representations and documents provided by Jambo Limited and their application to be removed as the Respondent in these proceedings made in accordance with Rule 34.[5]In accordance with that ruler I had to consider whether it was in the interests of justice to remove them as party if they had been wrongly included.[6]It is clear from the claim form that the Claimant considered at the time of presenting her complaint that RACS were the company paying her wages for the period of her assignment and were a potential Respondent at that time. After rejection of the claim against RACS she chose not to apply for reconsideration and comply with the early conciliation process.[7]At this hearing I also considered the documentation that Jambo Limited provided and the documentation the Claimant had provided to me. At page 50 of the Respondent’s bundle which is document D1 in the Claimant’s bundle is a letter dated 17 January 2017 which is about the Claimant’s placement to Barnsley College (the client) starting on 19 January 2017. The Claimant was engaged as an English teacher to cover the absence of a permanent teacher employed at the college.[8]The letter clearly identifies that the “contract” for this assignment would be provided by RACS.[9]Separately Jambo Ltd sent the Claimant information about their timesheet system which the Claimant was required to comply with sending in timesheets recording the number of hours that she worked before payment would be made by them to RACS who were responsible for paying the claimant.[10]Importantly the email informs the Claimant that she “will receive an employment contract from RACS”. RACS had also confirmed to the claimant that they will assume the ‘employment rights’ associated with permanent employees which includes holiday pay.[11]This confirmation came from a document the Claimant provided me which she had downloaded from the portal of RACS during her assignment which explains how holiday pay is worked out and states : “Our team will also explain the various options available to you regarding your holiday pay. Holiday pay is calculated at 12.07% of gross earnings (this is 5.6 weeks per annum or 28 days per annum). Holiday pay is accrued by RACS Collective Limited on your behalf and can be drawn upon during the periods when you are on holiday or not working. You can request (in writing) a full or part payment of your accrued holiday pay at any time. If you do not want RACS Group to accrue your holiday pay you must notify us by email …”[12]The correct Respondent in these proceedings was RACS Group Limited and not Jambo Ltd. In those circumstances the claim is dismissed.