Mr L Mbuisa v Care AK Ltd T/a Kare Plus Huddersfield: 1802005/2019
EMPLOYMENT TRIBUNALS
Case No 1802005/2019
Between
Mr L MbuisaClaimantCare AK Ltd T/a Kare Plus HuddersfieldRespondent
Before
Employment Judge DaviesIn person for claimantMs Rumble (instructed by counsel) for respondentDate 23 August 2021
JUDGMENT
[1]The Claimant was not an employee of the Respondent as defined in s 230(1) and (2) Employment Rights Act 1996. The Tribunal does not have jurisdiction to hear his claims of unfair dismissal and breach of contract and they are dismissed.[2]The Claimant had a disability as defined in the Equality Act 2010 at all relevant times for the purposes of this claim because of a physical impairment (back pain) and a mental impairment (depression and anxiety).
REASONS
[1]This was a preliminary hearing in public to decide:1.1 Whether the claimant, Mr Mbuisa, was self-employed, a worker or an employee; and1.2 Whether he met the definition of disability in the Equality Act 2010 at the time of the events in this claim.[2]The claimant represented himself and the respondent was represented by Ms Rumble (counsel). I had in front of me the agreed preliminary hearing file of documents. I heard evidence from the claimant.[3]At the preliminary hearing, the Claimant’s medical records were incomplete. He had had ample time to disclose them. He is an experienced litigant and is well aware that he needs to disclose in full the documents he relies on. They were in his possession, he had simply failed to disclose them comprehensively or to check the hearing file. After the preliminary hearing he sent two emails to the Tribunal attaching additional medical records. No explanation or application was made. The Respondent objected to the Claimant relying on them, and noted that it had not had the chance to cross-examine him about them. Despite these matters, I have taken some account of the additional documents, simply as a record of when the Claimant consulted his doctors about back pain or mental health, and when he was prescribed particular medications. There are some reasons to approach the Claimant’s medical records with caution – see below – but as a factual record of appointment dates, reasons for attendance and medications prescribed I consider it is in the interests of justice to admit the documents in evidence. They are relevant and they help me to understand the sequence of events. It is not proportionate to put the Respondent to the further expense and delay of another hearing to decide about the admissibility of the documents and, if admitted, to hear further evidence from the Claimant. The Claimant was not challenged about the accuracy of the medical records that were in the preliminary hearing file. In respect of the new documents, I have not assumed that what the Claimant told the doctor was accurate, I have simply noted what the doctor recorded and prescribed. WORKER STATUS
Findings of fact
[4]In June 2018 the claimant telephoned Kare Plus Huddersfield on the recommendation of a friend. It appears he spoke to someone called John who filled in a short form. Kare Plus Huddersfield then emailed him on 28 June 2018 thanking him for his interest in their “agency.” They invited him for an interview and asked him to complete some forms and bring them with him. The email came from “Kare Plus Huddersfield.” At the bottom of the email it said “A Kare Plus Franchise owned and operated under license by Care AK Ltd.”[5]The claimant filled in an application form. He went to an interview on 6 July 2018. One of the questions was whether he had worked for an agency before and he said he had. He was told on the day that his application was successful. References were taken up and a DBS check was carried out. The led to a further risk assessment being carried out on 18 July 2018.[6]On 25 July 2018 Kare Plus Huddersfield emailed the claimant to tell him his badge had been issued and that he had been booked on an induction on 31 July 2018.[7]On 1 August 2018 the claimant signed a Kare Plus induction checklist. He confirmed he had received a number of documents including a company handbook.[8]The handbook was the Kare Plus Ltd handbook. It included a blank Agency Worker Declaration. The claimant said in evidence that he looked at the declaration. He said that the handbook talked about both “employees” and “agency workers”, which it did. However, it was essentially a handbook about agency work. The section about working for Kare Plus opened by explaining that the process of ensuring compliance with legislation and client requirements was managed by the Kare Plus team who would maintain each “agency worker’s” records so that they never found themselves unable to work because of shortcomings in their file. The handbook told workers to complete timesheets and return them as instructed by their Kare Plus office. Workers were asked to tell Kare Plus office staff of their future availability in advance to ensure a regular supply of work. Under the heading “Tax and National Insurance”, the handbook said that although agency workers were self-employed unless registered as a limited company, Kare Plus was required by law to treat them as though they were employed for the purposes of PAYE and Class I National Insurance Contributions only. Many of the other paragraphs also made clear that the workers were regarded as agency workers, for example the section dealing with working time and annual leave. In the section headed “Before You Start Work”, a number of general obligations were set out. The first one started, “As an Agency Worker to be deployed in the provision of the Services you need to be aware that at all times whilst on the Client’s premises you: (a) are under the direction and control of the Client at all times…” There was a whole section summarising the effect of the Agency Worker Regulations and setting out the entitlements of agency workers under those regulations.[9]On 1 August 2019 the claimant signed a second document, about accepting and cancelling requests to work. The document recorded that Kare Plus would try to find work for the claimant within his capability and noted that they might sometimes ask him to accept work at very short notice. The claimant made a commitment to try to fulfil any work requested of him unless there were good reasons why he could not. The claimant was asked to provide a minimum of 24 hours’ notice when cancelling the shift so that it could be reallocated. Failure to follow the guidance might result in Kare Plus declining to offer him further work.[10]The claimant was paid through a payroll company called Kare Pay. I saw a contract for services apparently entered into on 4 October 2018 between the claimant and that company. The claimant said that he had never seen this contract. However, he accepted that Kare Pay had issued his payslips throughout.[11]The Claimant’s evidence to me was that he understood at the start of the arrangement that he would be offered shifts and he could choose to accept or refuse them. I was shown extensive evidence of precisely that happening over the coming months by text. There were also examples of the claimant cancelling shifts after he had previously accepted them.[12]The situation was therefore that Kare Plus Huddersfield would offer the claimant shifts by text message and he would either accept or refuse them. If he accepted the shift he would attend for work at the client’s premises and would be told where to work and what to do by the client. The claimant only accepted work as the senior in charge of the shift so he would direct the more junior carers in their duties. He has qualifications that allow him to do that work.[13]The relationship appears to have operated as set out in the handbook. The Claimant told me that at the start he thought he fell into the category of agency worker, but that it subsequently changed. The claimant now bases his claim that he was an employee working under a contract of employment on essentially two matters. First, he says that he did not get a wide choice of roles. Secondly, he says that there came a point where he was no longer allowed to refuse shifts and that he was “dismissed” when he did so. I make the following further findings about those matters.[14]The claimant was asked about the choice of roles when he gave evidence. He appeared to say that his experience with Kare Plus Huddersfield was different from his experience of other agencies because other agencies would tell him about shifts in a range of places and he could choose from those shifts. Kare Plus Huddersfield did not give him a choice: he was told this was the shift he was to do. However, he accepted in cross-examination that he might be offered shifts at White Rose or Tolson Grange. The written evidence showed offers of work being made to the claimant and the other workers at a range of locations. It may be that other agencies he has worked for offered a wider range of shifts but there was quite clearly no difference in principle. Kare Plus Huddersfield were offering shifts at different venues doing a range of roles for the claimant (and others) to refuse or accept; they were not directing or instructing him to attend particular shifts or locations.[15]The second aspect is the claimant’s assertion that there came a point he was no longer allowed to refuse shifts. He said that this was in February or March 2019. I note at this stage that the claimant very sadly suffered a bereavement on 2 February 2019, when he lost his daughter. I expressed my sympathy to him at the hearing and I do so again.[16]At the time of his bereavement the claimant continued to receive the generic texts from Kare Plus Huddersfield offering shifts. On 4 February 2019 a text was sent confirming that the claimant was booked on shifts on 5 and 6 February 2019 and the claimant texted to confirm his attendance. Texts offering shifts were sent (to all) between 6 February 2019 and 17 February 2019, to which the claimant did not reply. On 18 February 2019 he was texted a confirmation that he was booked on shifts on 22 February 2019 and 1 March 2019. He replied to confirm. On 19 February 2019 he was asked if he could cover shifts on 20 February 2019 and 2 March 2019. He confirmed he could cover the 20 February 2019 shift. The claimant forgot about the shift on 22 February 2019. He was texted by Kare Plus Huddersfield about an hour after the start time and replied to say that he had forgotten about the shift and would have cancelled it.[17]On 27 February 2019 texts were sent asking if the claimant could do team leader shifts at Tolson Grange on 4, 5 and 9 March 2019. He replied to say he could and was told that his name had been submitted and a confirmation text would be sent if and when the shifts were confirmed. He was also asked if he could do senior carer shifts at White Rose on Thursday, Friday, Saturday and Sunday night that week (28 February and 1, 2, and 3 March 2019). He replied to say that he could not as he was only available “Saturday day.” That appears to have prompted a text saying that the claimant’s name was still put forward against the team leader shifts for next week at Tolson Grange. The claimant was asked if he wanted his name withdrawing while the bookings were still unconfirmed. He did not reply. The following morning he was texted with confirmation that those shifts were booked. The following day, Friday, 1 March 2019, a text was sent, which noted that the claimant had not texted acknowledgement of those shifts as normal. It said that staff had rung the claimant many times the previous day to make sure he had got the text but there was no answer and the claimant had not called back. The claimant was told that if they did not hear back by midday they would take it that he was not committed to covering the shifts and he would be replaced on them.[18]On Saturday, 2 March 2019 claimant texted to say that he did not want to argue and asked to be taken off the shifts. He said that he did not want to be spoken to “like that” when he had legitimate reason and complained about being called after his daughter passed away. He said he had been left with no choice but to make a claim for money he was owed and his holiday pay. A reply was sent to him on 4 March 2019 disagreeing with his version of events. It said that the claimant had not been offered any new shift since last Wednesday, they were only checking on the shifts at Tolson Grange that he had agreed to cover prior to his last cancelled shift at White Rose. The text also said that the agency had rung the claimant many times last week but when he did not reply they had sent him an email on Friday saying that they would not be able to offer him any further shifts and that he must return his uniform, badge and timesheets, following which his withheld payment would be released. I was not shown any relevant email.[19]The claimant’s evidence to me was that he called the agency sometime between 27 February and 2 March to say that he did not want to take the shifts. He said that he was told he could not cancel shifts. He did not know why he had not simply texted to say he did not want his name withdrawing when asked.[20]I did not hear evidence from Kare Plus Huddersfield about these specific events and it appears the full documentary evidence was not in the file of documents for this hearing. I am conscious that these events form part of the claimant’s substantive complaints and I do not want to make findings that are binding on a future tribunal without having heard full evidence.[21]Therefore, for the purpose of this preliminary issue I assume that, as the claimant says, he called the agency some time between 27 February and 2 March 2019 to say that he did not want to take the shifts and was told that he could not cancel them. I also assume, as stated in the text on 4 March 2019, that the agency emailed the claimant on 1 March 2019 having not heard from him to say that they would not be able to offer him any further shifts.
Legal Principles
[22]The legal dispute about the claimant’s status as a worker or employee is narrow. Kare Plus Huddersfield accepts that it had a contract with the claimant for the claimant to perform work or services personally but it does not accept that this was a contract of employment in the narrow sense. That means:22.1 it accepts that the claimant was an agency worker under the Agency Workers Regulations 2010 as defined in regulation 3(1)(b)(ii);22.2 it accepts that the claimant was an “employee” within the extended definition in s 83(2)(a) Equality Act 2010; and22.3 it accepts that the claimant was a worker within the extended definition in s 43K Employment Rights Act 1996.[23]It does not accept that the claimant was an employee in the traditional, narrow sense in s 230(1) Employment Rights Act 1996. The only question for me is therefore whether the claimant worked under a contract of employment, i.e. a contract of service, rather than a contract personally to do work that was not a contract of employment.[24]The legal principles are well established. The Tribunal must find as a matter of fact whether there was a contract between the parties and, if so, what its terms were. Having done so, the Tribunal must decide whether the contract was a contract of employment. There is no single test for determining whether an individual is an employee within the meaning of s 230(1). Each case depends on its own facts. There is, however, said to be an “irreducible minimum”, without which there can be no contract of employment. That minimum comprises:24.1 Mutuality of obligation - an obligation on the employer to provide work and on the employee to accept and perform the work offered;24.2 Control – put simply, that ultimate authority over the purported employee in the performance of his or her work must rest with the employer; and24.3 Personal service - the employee must be obliged to perform the work personally, subject to a limited power of delegation. See: Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 1 All ER 433 QBD; Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 CA; Carmichael v National Power plc [2000] IRLR 43. Application of the legal principles in this case[25]I have no hesitation whatsoever in finding that the Claimant was not an employee of Kare Plus Huddersfield in the narrow sense as defined in s 230(1) Employment Rights Act 1996. The written terms of the contract, which were reflected in the actual practice of the parties, did not give rise to the mutuality of obligation that is required in a contract of employment. Kare Plus Huddersfield was not obliged to provide work and the claimant was not obliged to accept and perform work that was offered. The handbook did not contain any term requiring the Respondent to offer work or the Claimant to accept it. This was dealt with in the Acceptance and Cancellation of Requests to work document signed on 1 August 2018. That recorded that Kare Plus Huddersfield agreed that it would endeavour to find the Claimant work and the Claimant agreed that he would attempt to fulfil any work requested unless there was a good reason. That is not an obligation to provide or to accept work. The extensive documentation showed work being offered to the Claimant, which he sometimes accepted and sometimes refused. It showed him cancelling shifts after he had accepted them on occasion. It was consistent with the written agreement.[26]Even assuming the Claimant’s version is accurate, the events of February-March 2019 do not change that. First, I am concerned with the terms of the contract as agreed at its outset (or as subsequently varied if that happened). The terms of the contract as agreed and as performed from August to February did not provide for mutuality of obligation. The events of February-March 2019 do not affect the terms agreed in July 2018 and there is no suggestion that they gave rise to or reflected any variation of the contract.[27]Further, the events of February to March 2019, even as described by the Claimant, do not seem to me to indicate that the Claimant was now being told that he was obliged to accept shifts generally (still less that the Respondent was obliged to offer them to him). Rather, there was a specific issue, arising because the Claimant did not acknowledge confirmation of a booking and did not respond to texts or phone calls. I assume that in the course of those events he was told that he could not cancel shifts and that he was subsequently told he would not be offered any more shifts and asked to return his uniform and other items. If that happened, it might have been a breach of contract, but it did not and could not change the terms of the contract as agreed at the outset and operated at all times up to that point.[28]The suggestion that this could not be an agency worker’s contract because the Claimant was not offered a choice of shifts was plainly misconceived. The Claimant was offered a choice of shifts, as the documents clearly showed.[29]Therefore, there was no mutuality of obligation. Kare Plus Huddersfield was not obliged to offer the Claimant work and the Claimant was not obliged to accept or perform work that was offered. The contract between them cannot therefore have been a contract of employment for the purposes of s 230(1) Employment Rights Act 1996.[30]This means that the Claimant cannot bring a claim of unfair dismissal or a claim for notice pay. DISABILITY
Findings of fact
[31]The claimant confirmed that he is making two disability discrimination complaints. First, he says that he was forced to take 12-hour long carer shifts, which he says was disability discrimination because of a back condition. Secondly, he says that he was pressured to take shifts during his bereavement, which he says was disability discrimination because of a mental health impairment of anxiety or depression.[32]I was provided with some of the claimant’s medical records but not all of them. My attention was drawn to previous Tribunal proceedings brought by the claimant against a different employer. The proceedings included claims of disability discrimination in which the disability relied on was a back condition. In written reasons promulgated on 23 January 2020, EJ Wade set out the unanimous findings of the tribunal that the claimant did not have a disability by virtue of that condition at the relevant period in those claims (March to May 2017). The Tribunal in that case made a finding that the claimant’s GP records could not be relied on as accurate, because it was clear that he had reported to his GP that he was unfit for work because of his back condition and obtained a fit note signing him off work with one employer on that basis, while at the same time he was participating in physically demanding training for a different employer and explicitly signing that he was fit to do so each day. Ms Rumble drew my attention to the written reasons provided by EJ Wade, but she did not cross-examine the claimant about them, nor did she cross-examine him about the accuracy of the GP notes relied on in this claim. Nonetheless, in view of the findings of EJ Wade’s Tribunal, I approach the Claimant’s medical records with a degree of caution.[33]It was agreed that in these proceedings the disability discrimination complaints relate to the period October 2018 to February 2019.[34]The Claimant’s back was injured in April 2013 when some glass sheets fell on him at work. He experienced some assaults at work in 2017, which led to further back pain. The GP records do refer to complaints of back pain during 2017 and the Claimant was signed off with back pain at points in 2016 and 2017 (though I note again the findings of EJ Wade about that period).[35]The Claimant had an MRI scan in November 2017, which was clear. He was advised to focus on improving his general mobility and strength. He requested a referral to pain management and was referred to the Pain Management Service in January 2018. He reported a five-year history of thoracic and lower back pain following an accident at work. He reported that the pain had gradually improved but flared up following 3 assaults in 2017. He said he had been managing with pain relief and that the pain was aggravated by walking and sleeping. He reported that the pain was also affecting his mood. The treatment plan was for the Claimant to access CBT for pain management.[36]The Claimant reported to his GP that he had suffered a further assault at work in February 2018 and the GP noted that he was mainly complaining of back pain. The GP recorded that his “aches and pains should settle.” He was signed off work until 4 March because of the assault.[37]From 7 April 2018 to 29 June 2018 the claimant was signed unfit for work because of a stress related problem. He was already taking amitriptyline and was started on mirtazapine. In May he switched back to amitriptyline because the mirtazapine was causing joint pain.[38]He left his previous employment and applied to Kare Plus Huddersfield at the end of June 2018 as indicated above.[39]There is no record of any visit to the GP because of back pain during whole period the Claimant worked for Kare Plus Huddersfield. The Claimant saw the GP with shoulder pain in September 2018 and was signed off work for two weeks.[40]The Claimant told me that he takes co-codamol and naproxen for back pain. The available GP records refer to prescriptions for co-codamol and naproxen in (at least) March 2015, June and August 2017 and April 2018. His evidence was that he started taking these medications in April 2013 and is still taking them. The available GP records support that evidence. So does a letter from the Claimant’s GP dated October 2019. The Claimant was also able to give a clear explanation of what each medication was and why he was taking it. I accepted his evidence that he has been taking co-codamol and naproxen since April 2013.[41]There is no record of any visit to the GP with anxiety or depression during the period he worked for Kare Plus Huddersfield. He told me that he has been taking amitriptyline since April 2013, fluoxetine (on and off) since 2017 and mirtazapine for a period. The evidence included a record of a psychological assessment in March 2014, recording that the Claimant had been experiencing symptoms of anxiety and depression since the accident at work in 2013. He said he was in pain almost every day, had disturbed sleep and nightmares and low mood. He had started on sertraline. He also took co-codamol and amitriptyline for pain relief. The available GP records indicate that the Claimant was prescribed fluoxetine and amitriptyline in (at least) March 2015, between August 2017 and April 2018 and in 2020. The GP’s letter of October 2019 talks about depression starting in 2014 and notes the referrals to IAPT and the Richmond Fellowship. Again, I accept the Claimant’s evidence about when he has been taking these medications.[42]There is evidence that the Claimant was referred to IAPT in July 2018. That appears to relate to the recommendation that he access CBT for pain management. The Claimant attended one session of the “Living well with pain” course but was not sure why he was attending. It was agreed that he might benefit from accessing the Richmond Fellowship and he was referred to them in November 2018.[43]As indicted, the Claimant’s GP wrote a letter in October 2019 summarising the Claimant’s injuries and medical conditions (as reported to the GP). He said that the Claimant had suffered injuries to his back and both legs in April 2013 in an accident at work. He was put on pain killers “which he is still on.” In 2014 he suffered from depression and was put on antidepressants, namely sertraline, mirtazapine and fluoxetine. He has been referred to IAPT and the Richmond Fellowship. He had reported further back injuries in March and May 2017 and February 2018. He remains in ongoing back pain and takes moderately strong medication for it.[44]The Claimant’s own witness statement is in some respects unsatisfactory. It does not give clear examples or evidence about the dates relevant to this claim. It does not read as if it has been prepared specifically for these proceedings and seems in some respects formulaic. Nonetheless, the Claimant describes impacts on his day to day activities caused by back pain and depression/anxiety.[45]I found his oral evidence more persuasive. He was asked specifically about the time he worked for Kare Plus Huddersfield. He said that when he applied to work for Kare Plus Huddersfield he was suffering from back pain but he would work with it as he had done before. He specified that he would only work as a senior carer because he could not do the duties an ordinary carer did. He couldn’t bath somebody, make a bed, change bed sheets, dress or undress somebody or do their shopping. As a Senior Career he would have to go up and down the stairs and walk but there was no other way he could earn a living. He had sometimes carried out personal care activities because he had found somebody in need and would not leave another human being in that state so he did the best he could.[46]The Claimant said that he was particularly struggling with his mental health after he was assaulted again. He found it difficult to go to work. It was difficult to look after himself, to bath and cook for himself. That lasted until around May 2019. A number of days his sisters would visit him and prompt him to look after himself. He had good days and bad days.[47]His back pain made it difficult for him to walk, cook while standing up, take a shower and walk up and down stairs. Things were difficult and painful for him but he did them because he had no choice. For example, he had travelled to London for a legal hearing. It was difficult for him to sit on the coach but he had no alternative.[48]The Claimant’s evidence was that he always takes co-codamol 4 times per day. If he did not take it he would not be able to sit at the Tribunal. He knew that because he started to feel the pain if he went too long before taking his medication. He takes naproxen twice per day. It is an anti-inflammatory for his back. If he does not take it his back becomes stiff and painful. If he ever forgot to to take it the pain was too much. Most recently that had happened in April this year and he had to leave work early.[49]He has been on anti-depressants since 2013. When his symptoms worsen his medication can be changed or increased.[50]Drawing all of the evidence together, while I approach both the GP records and the Claimant’s witness statement with some caution, I do find that at the relevant times he had a physical impairment (back condition) and a mental impairment (anxiety and depression). Those conditions seem to me to be linked. The Claimant’s pain has given rise, in part, to his poor mental health, but also his mental health affects his ability to manage the pain.[51]Further, at the relevant time, those conditions affected the Claimant’s ability to do normal day to day activities. His back pain limited the distance he could walk. It made it difficult for him to cook, take a bath or shower, and use the stairs. He chose to limit the type of roles that he would accept, so that he did not have to provide personal care for others, which he was unable to do. He performed the senior carer role in full, but could be in pain while doing so. That was the position when he was taking his medication. Without the medication, the pain would make it very difficult for him to do anything at all. This was the position throughout the relevant period and had been for a long time prior to that.[52]The Claimant’s depression and anxiety also affected his ability to do normal day to day activities. He struggled with going to work in the period before he joined Kare Plus Huddersfield. Even after that, he had good days and bad days and sometimes struggled with personal care, such as bathing and cooking for himself. Again, that was the situation with medication. Without the medication his mental health was likely to be worse. This was the position throughout the relevant period and had been for a long time prior to that.
Legal Principles
[53]Claims of discrimination are governed by the Equality Act 2010, s 4 of which provides disability is a protected characteristic. By virtue of s 6, a person has a disability if he has a physical or mental impairment that has a substantial and longterm adverse effect on his ability to carry out normal day-to-day activities. Section 6 is supplemented by schedule 1 of the Equality Act 2010, and by Guidance made by the Secretary of State pursuant to those provisions: “Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011)” (“the Guidance”). The Tribunal is obliged to take the Guidance into account.[54]Paragraph 5 of schedule 1 makes clear that an impairment is to be treated as having a substantial adverse effect on a person’s ability to carry out normal day to day activities if the person is taking medical treatment and, but for the treatment, the impairment would be likely to have that effect.[55]The Tribunal must focus on what the person cannot do, or can only do with difficulty, not on what he can do: see Goodwin v Patent Office [1999] ICR 302. A substantial adverse effect is one that is more than minor or trivial. Application of the legal principles in this case[56]In the light of the findings of fact above, I find that at the relevant times the Claimant did have a disability because of a physical impairment - back pain - and a mental impairment - depression/anxiety.[57]Each of those conditions had a more than minor or trivial impact on his ability to do normal day to day activities, even disregarding the effects of his medication. Although he had good days and bad days, throughout the period his back pain made it difficult for him to walk any distance, use stairs, take a bath and cook. There were things he could only do with difficulty, and the fact that he sometimes provided personal care to a patient in need, used the stairs at work or travelled on a long journey to London does not mean that there was not a substantial adverse effect on his ability to do normal day to day activities. His depression/anxiety made it difficult for him to look after himself properly, for example cooking for himself and washing himself when he was having a bad day.[58]Without his medication, those substantial adverse effects would, in each case, have been likely to be significantly worse. In each case the substantial adverse effects had lasted more than 12 months at the relevant time.[59]All elements of the definition of disability were therefore met with respect to both conditions.
Legal Principles
[1]The first two of his complaints of direct race discrimination namely:1.1 being forced to take shifts as a carer; and1.2 being forced to take shifts after his daughter passed away.[2]His complaint of unfavorable treatment because of his disability.[3]Both of his complaints of failure to make reasonable adjustments for disability.[4]Both of his complaints of indirect disability discrimination.[5]Both of his complaints of disability related harassment.[6]His second complaint of race related harassment relating to the failure to investigate his Red Staithes complaint.[7]All three of his complaints of victimisation. are therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013. The remaining claims will proceed to a final hearing on 17th to 19th February 2021.[8]When the issues were discussed, the claimant was under the misapprehension that there was an ongoing claim of disability discrimination. However, all the disability discrimination claims had been struck out, together with a number of other claims, in the judgment of Employment Judge Lancaster on, 16 December 2020, following the claimant’s failure to pay deposits that the claimant had been ordered to pay as a condition of proceeding with those allegations.
Findings of fact
[9]Having considered all the evidence, both oral and documentary, the Tribunal makes the following findings of fact on the balance of probabilities. These written findings are not intended to cover every point of evidence given. These findings are a summary of the principal findings that the Tribunal made from which it drew its conclusions. Where the Tribunal heard evidence on matters for which it makes no finding, or does not make a finding to the same level of detail as the evidence presented, that reflects the extent to which the Tribunal considers that the particular matter assists in determining the issues. Some of the Tribunal’s findings are also set out in its conclusions, to avoid unnecessary repetition, and some of the conclusions are set out within the findings of fact. The identity of those mentioned who did not appear before the Tribunal or provide a witness statement have been anonymised. 9 .1. The claimant was an agency worker engaged by the respondent from 7 August 2018. ` 9.2. The respondent is a staffing agency providing temporary agency workers to care homes in the Huddersfield area as a franchise of the Kare Plus network which operates nationally. 9.3. The claimant was taken on as an agency worker and was provided with shifts at various care homes. 9.4. The claimant was offered shifts, usually by text message, and he would then send a text confirmation or provide a telephone confirmation. 9.5. On or around 29 October 2018 the claimant sent a ‘complaint report’ to the respondent. This was stated to be for the attention of Kare Plus and HC-One, the operator of White Rose House. The claimant complained about an employee of HC-One who had verbally abused him and shouted at him that he was a “lazy black African”. The complaint also made reference to the standard of care provided for residents and that the home was shortstaffed. 9.6. The respondent sent the complaint report to the manager at White Rose House on 29 October 2018. 9.7. On 22 November 2018 the respondent sent an email to the White Rose House Manager asking for an update regarding the complaint made by the claimant. In the email it said that the claimant “keeps asking us for an update.” 9.8. Abdul Khader, the respondent’s Managing Director, said that he provided updates, so far as he was able, to the claimant when he attended the office. The claimant did not seek an update in writing at any stage. 9.9. The claimant continued to work some shifts at White Rose House. 9.10. On 22 January 2019 the claimant provided an ‘incident report’ in respect of a shift that he had worked at Red Laithes Court, a care home run by Kirklees Council. 9.11. In the incident report the claimant referred to a staff member who had said to him that he must provide personal care for a resident. The claimant had explained that he should not do so until instructed by the Team Leader. The Team Leader had left the shift and the member of staff became verbally abusive. The claimant complained that she was talking down to him. He said that he raised concerns about doing personal care before being cleared to do so by the Team Leader.The claimant stated: “The staff member picks on me because am an agency staff and believe she would not do that to other staff members employed. Everything I do the staff member always has something to say about me. It will be very difficult for any agency staff to work there because of staff attitude towards agency staff how they treat agency staff as if they are not humans.” ` 9.12. The Tribunal had sight of numerous text messages between the respondent and the claimant. The system for booking was that a message would be sent to all the agency workers indicating that a shift was available on a certain date and asking that if they could cover it, they should get in touch with the respondent. 9.13. On 22 February 2019 at 15:49 the respondent sent a text message to the claimant stating: “Hi are you on the way to cherry trees as they have rung to say you haven’t arrived for the shift which started at 3.30. 9.14. The claimant responded at 21:48 stating: “ Am sorry just got back now from London and I totally forgot about the shift yesterday I would have cancelled it.” 9.15. On 27 February 2019 there was an exchange of text messages between the respondent and the claimant as follows: “Hi are you okay with a team leader shift at Tolson Grange on Monday 4th and Tuesday 5th and Saturday 9? If so please let us know urgent as the shift is online and will be booked on first come basis. Kare Plus Huddersfield.” “Yes it’s ok” “Ok submitted your name for those three shifts, if and when confirmed we will send you a confirmation text. Kare Plus Huddersfield.” “Could you senior carer shifts at White Rose on Thursday, Friday, Saturday and Sunday nights this week?” “No not this week I am only available Saturday day. Thank you.” “Hi we still have your name put forward against the team leader orders for next week at Tolson Grange. Do you want us to withdraw them or leave it as it is until confirmed? Once confirmed it will be difficult for us to approach GRI to revoke those shifts so please let us know urgently if you want us to withdraw your name from those unconfirmed bookings. Kare Plus Huddersfield.” ` Thursday 28 February 2019, 09:28 “Hi, your shifts at Tolson Grange as a team leader is confirmed for these nights from 21.30 – 7.30:4th, 5th and 9th March. Please acknowledge receipt of the text. Kare Plus Huddersfield.” Friday 1 March, 07:54 “Hello, we sent you a text yesterday confirming your shifts at Tolson Grange for next week. We have not received a receipt of text acknowledgement from you as normal and we rang you many times yesterday to make sure you have got the text but there was no answer nor you called back. If we don’t hear from you by 12 noon today we will take it that you are not committed to covering them shifts as initially agreed therefore we will have no choice but to replace those shifts. Kare Plus Huddersfield.” Saturday 2 March, O8:06 “Look I just don’t want to argue with you so please take me off. I have no one speak to me like that when I have a legitimate reason. After all I am paid little for a senior carer role. You even called after my daughter passed away showing how much little respect you have for me. Getting calls while in bereavement is just appalling. You have not paid me but still asked me to take shifts. You have left me with no choice but put claim for money you owe me and my holiday pay.” Monday 4 March, 07:57 “We suggest you check the facts before saying things that are incorrect. We have not offered you any new shifts since last Wednesday, instead, we were only checking on the shifts at Tolson Grange that you had agreed to cover prior to your last cancelled shift at White Rose. We only rang you a week or so after your daughter’s death, purely as a sympathetic gesture to see if you were coping okay and also to obtain the referee details which we had requested by text but upon not hearing from you for some days we were obliged to ring you as this was urgently required by the client. So clearly the call wasn’t regarding shifts as stated in your last text. Again you should check the facts properly before pointing a finger at us. ` We rang you many times last week but when you didn’t reply we had sent you an email on Friday stating “we will not be able to offer you any further shifts and that as per the contract you must ensure to return the uniform, badge and any unused timesheets following which your withheld payment will be released.” We have no intention of entering into a meaningless debate by text nor will we tolerate baseless accusations from you but you may give us a call if you would like to discuss your position sensibly or alternatively return the items provided by us by post or in person as per the contract so that we can release your payment and close your file. Kare Plus Huddersfield.” “I am taking my case to employment tribunals. I will meet you there. I raised several complaints which you didn’t even bother to acknowledge receipt or respond I am making my claim. I will also approach my MP in regards to this and I will amplify this so the whole nation will know about you. You have no legal standing to withhold my wages whatsoever, after sending text that I have been paid. Fraudulent misrepresentation. You have messed up the wrong person. I will fight for my human rights for which you have disrespected and stripped me of. It’s not about money but due process of law to prove that you don’t treat people like animals. The fact that I am African does not give you any legal right to treat me in this way. Justice will prevail. The ID card has my personal details which you are not authorised have as I have immediately withdrawn/revoked any legal rights to hold, process, possess or reproduce or print any personal details information that you hold under the data protection act 2018. You better check text messages on 3,4,6,7,8,9,10,13,14,15 etc once again misrepresentation. I will contacting ACAS today and this serves as the final notice and no other notice will be served.” “Bearing in mind our contract and strict company policy with regard to safeguarding we trust that you will appreciate the importance of the uniform, badge, timesheets being returned without delay as indicated earlier. Once you have complied with that request your final payment will be released without delay. Kare Plus Huddersfield.” 9.16. On 7 March 2019 Kirklees Council sent an email to the respondent in which it was indicated that the Team Manager for Social Care and Well-being for Adults had contacted her line manager who felt that the verbal feedback is sufficient and they would not be providing a written account. The respondent replied indicating that they would inform the claimant. ` 9.17. On 11 March 2019 of the respondent sent an email to the manager of White Rose House asking for an update in respect of the statement of the claimant as it was indicated that he kept asking for an update. 9.18. On 7 May 2019 the claimant presented a claim to the Employment Tribunal. He brought claims of unfair dismissal, race and disability discrimination. Claims of notice pay, holiday pay, arrears of pay and other payments. 9.19. A number of those claims have been dismissed or withdrawn and the issues which remain to be determined by the Tribunal are as those as set out in paragraph 4 above.
The law
[10]Protected Disclosure Claim Section 43B(1) of the Employment Rights Act 1996 “(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 yes it looks like tomorrow’s be committed; (b) 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 an 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 the preceding paragraphs has been or is likely to be deliberately concealed”. The claimant in this case seeks to rely upon disclosures to the respondent and section 43C of the 1996 Act provides: - “A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith – (a) to his employer…..”. Section 47B (1) “A worker has the right not to be subjected to any detriment by an act, or any deliberate failure to act, by his employer done on the ground that the workers made a protected disclosure.” Section 48(2) provides that on a complaint to an Employment Tribunal “… it is for the employer to show the ground on which any act, or deliberate failure to act, was done.” ` Section 43K provides: (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 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 under section 230 (3) (b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”…(2) For the purposes of this Part “employer” includes – (a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged…[11]Section 43K provides an extended definition of the meaning of “worker” in order to bring a claim of detriment on the ground that the worker has made a protected disclosure pursuant to section 47B.[12]Section 43K was considered by the Employment Appeal Tribunal in Croke v Hydro Aluminium Worcester Ltd [2007] ICR1303. The EAT reached the conclusion that, in construing the definition of “worker” in section 43K, it was appropriate to adopt a purposive approach. Accordingly, where an individual supplied his services to an employment agency through his own company and the employment agency, in turn, provided the services of that company to an end-user, it may be that in appropriate circumstances the individual is a “worker” of the end user for the purposes of section 43K.[13]Section 230(3) Employment Rights Act 1996 provides that an individual is a worker if he or she works under a contract of employment, or any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual. `[14]The definition of a qualifying disclosure breaks down into several elements which the Tribunal must consider in turn in order to determine whether there was a qualifying disclosure. There are several appellate authorities which would normally be considered. However, in this case it is accepted by the respondents that the claimant had made qualifying disclosures. The Tribunal is satisfied that the disclosures made by the claimant were disclosures of information which, in the reasonable belief of the claimant, tended to show that the respondent had failed to comply with their legal obligations. Race discrimination Direct discrimination[15]Section 13 of the Equality Act 2010 states:(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.(5) If the protected characteristic is race, less favourable treatment includes segregating B from others.[16]Harassment Section 26 of the Equality Act provides (1) A person (A) harasses another (B) if-- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of-- (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account-- ` (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. Burden of Proof[17]Section 136 of the Equality Act 2010 states: “(1) This Section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court. There may be two employers for these purposes under s. 43K(2)(a) ERA 1996.” Guidance has been given to Tribunals in a number of cases. In Igen v Wong [2005 ] IRLR 258 and approved again in Madarassy v Normura International plc [2007] EWCA 33. To summarise, the claimant must prove, on the balance of probabilities, facts from which a Tribunal could conclude, in the absence of an adequate explanation that the respondent had discriminated against her. If the claimant does this, then the respondent must prove that it did not commit the act. This is known as the shifting burden of proof. Once the claimant has established a prima facie case (which will require the Tribunal to hear evidence from the claimant and the respondent, to see what proper inferences may be drawn), the burden of proof shifts to the respondent to disprove the allegations. This will require consideration of the subjective reasons that caused the employer to act as he did. The respondent will have to show a non-discriminatory reason for the difference in treatment. In the case of Madarassy the Court of Appeal made it clear that the bare facts of a difference in status and a difference in treatment indicate only a possibility of discrimination: “They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”. A claimant cannot rely on unreasonable treatment by the employer as that does not infer that there has been unlawful direct discrimination; see Glasgow City Council v Zafar [1998] ICR 120. Unreasonable treatment of itself does not shift the burden of proof. It may in certain circumstances be evidence of discrimination so as to engage stage 2 of the burden of proof provisions and required the employer to provide an explanation. If no such explanation is provided there can be an inference of discrimination Bahl v Law Society [2004] IRLR 799.[18]In the case of Qureshi v Victoria University of Manchester and another [2001] ICR 863 Mummery J said: ` “There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the Tribunal to find the primary facts about those allegations. It was not, however, necessary for the Tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on "racial grounds" or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then for the Tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on "racial grounds". The fragmented approach adopted by the Tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. The assessment of the parties and their witnesses when they give evidence also form an important part of the process of inference. The Tribunal may find that the force of the primary facts is insufficient to justify an inference of racial grounds. It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non-racial grounds of action or decision.”[19]Since the House of Lords’ Judgment in Shamoon v Chief Constable Royal Ulster Constabulary [2003] IRLR 285 the Tribunal should approach the question of whether there is direct discrimination by asking the single question of the reason why. That case has been expanded on by Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, Ladele, Amnesty International v Ahmed [2009] IRLR 884, Aylott v Stockton on Tees Borough Council [2010] IRLR 994, Martin v Devonshires Solicitors [2011] ICR 352, JP Morgan Europe Limited v Cheeidan [2011] EWCA Civ 648, and Cordell v Foreign and Commonwealth Office [2012] ICR 280.[20]For a finding of direct discrimination it is not necessary for the discriminator to be consciously motivated in treating the complainant less favourably. It is sufficient if it can be inferred from the evidence that a significant cause of the discriminator to act in the way he has acted is because of the persons protected characteristic. As Lord Nicholls said in Nagarajan v London Transport, “Thus, in every case, it is necessary to enquire why the complainant received less favourable treatment. This is the crucial question. Was it on the grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question, will call for some consideration of the mental process of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision.”[21]Therefore, in most cases the question to be asked by the Tribunal requires some consideration of the mental process of the discriminator. Once established that the ` reason for the act of the discriminator was on a prohibited ground the explanation for the discriminator doing that act is irrelevant. Liability has then been established.[22]In the case of Qureshi v Victoria University of Manchester Mummery J said, with regard to race discrimination: “As frequently observed in race discrimination cases, the applicant is often faced with the difficulty of discharging the burden of proof in the absence of direct evidence on the issue of racial grounds for the alleged discriminatory actions and decisions. The Applicant faces special difficulties in a case of alleged institutional discrimination which, if it exists, may be inadvertent and unintentional. The Tribunal …. must also consider what inferences may be drawn from all the primary facts. Those primary facts may include not only the acts which form the subject matter of the complaint but also other acts alleged by the applicant to constitute evidence pointing to a racial ground for the alleged discriminatory act or decision. It is this aspect of the evidence in race relations cases that seems to cause the greatest difficulties. Circumstantial evidence presents a serious practical problem for the Tribunal of fact. How can it be kept within reasonable limits?”[23]The Tribunal had the benefit of oral submissions from the claimant and Ms Rumble On behalf of the respondent. They are not set out in detail but both parties can be assured that the Tribunal has considered all the points made and all the authorities relied upon, even where no specific reference is made to them.
Conclusions
[24]The claimant’s evidence and submissions were extremely difficult to follow. He presented shifting claims. His evidence was vague and confused and his submissions continue to refer to matters that had been determined as being outside the Tribunal’s jurisdiction or that have been struck out such as claims of disability discrimination.[25]The claimant made submissions with regard to the principle of benefit and burden. The case he referred to, Halsall v Brizell [1957] Ch169 is a land law case concerning the enforceability of a covenant in which it was held that a party may not take the benefit of a right granted without accepting the corresponding burden which goes with that right.[26]He also referred to vicarious liability but that was not an issue that had been identified that required determination by the Tribunal. The Tribunal is not satisfied that the respondent could be held liable for actions of the employee of HC-One. In his statement the claimant makes reference to section 109 of the Equality Act 2010 but the respondent was not the employer or principal of an agent in this regard. They had no influence over the employees of their clients.[27]The Tribunal has carefully considered the agreed list of issues as follows: 1 Direct Race Discrimination 1.1. Did the respondent treat the claimant as follows: `1.1.1 Failure to deal with his complaint of race discrimination when working for HC One made on 29 October 2018;1.1.2 Failure to deal with his complaint about events that took place when he was working for Red Laithes made on 22 January 2019?[28]The Tribunal finds that the respondent did not carry out thorough investigations but it did pass the claimant’s complaints onto the end users. It was said that this was in compliance with its procedures and the same way it would deal with any other such complaints. The respondent’s case was that it did what it could in the circumstances. There was no evidence of less favourable treatment. The respondent would have treated anyone else in the same circumstances in the same way. There was no evidence that there was any treatment related to any treatment on the grounds of the claimant’s race.[29]With regard to the HC-One complaint it is accepted that the respondent did not carry out an investigation but they maintained that they did what they could. The respondent said that it followed its own procedure. The claimant returned to work in the same place. No grievance was raised against the respondent and how it was dealt with. 1.2. Was that less favourable treatment? 1.3. If so, was it because of race?[30]There was no evidence that any failure to investigate further was because of the claimant’s race. The claimant said that he could think of no other reason. However there was clear evidence from the respondent’s witnesses that their actions bore no relation to race. They both made it clear that they felt there was little they could do in view of the commercial relationship with their clients. The Court of Appeal In the case of Madarassy made it clear that the bare facts of a difference in status and a difference in treatment indicate only a possibility of discrimination: “They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.[31]In this case there was nothing more than the claimant’s suspicion that the failure to investigate was because of his race. There was not something more that could lead to a reversal of the burden of proof.[32]If the burden of proof had shifted to the respondent, the Tribunal is satisfied that the respondent had established a non-discriminatory reason for the failure to investigate. That of the perception that there was little they could do in view of the commercial relationship with their clients. 1.4 If so, has the claim been brought in time? 1.5. If not, does the complaint form part of a course of conduct extending over a period with a last act occurring within the statutory time limit? ` 1.6. If not has the claim been brought within such other period as the[33]It was accepted by the respondent that the claims were in time or, if they were not then it was accepted that they would meet the requirements for just and equitable extension. 2. Race related harassment 2.1 Did the respondent do the following: 2.1.1. The respondent not investigating his HC One complaint dated 29 October 2018. 2.2. If so, was that unwanted conduct and did it relate to race.[34]As set out above with regard to direct discrimination the respondent reported the matter to HC-One. The respondent did not carry out any investigation by reason of its commercial relationship with its clients and not on grounds related to the claimant’s race. 2.3. If so did it have the purpose of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him?[35]The claimant continued to work as normal. He returned to the same care home on 7 January 2019 and did not raise any concerns about the way the respondent was dealing with matters until after the relationship had come to a end. 2.4. If not, did it have that effect? 2.5. If so, has the claim been brought in time? 2.6. If not, does the complaint form part of a course of conduct extending over a period with a last act occurring within the statutory time limit? 2.7. If not has the claim been brought within such other period as the[36]It was accepted by the respondent that the claim was brought within time or within such other period as the Tribunal thinks just and equitable. 3. Protected disclosure detriment 3.1. Did the claimant make a protected disclosure: 3.1.1.In his HC- One complaint of 29 October 2018, which he says disclosed information that in his reasonable belief tended to show the breach of a legal obligation and/or danger to health and safety; ` 3.1.2. In his Red Laithes complaint of 22 January 2019, which he says disclosed information that in his reasonable belief tended to show a danger to health and safety; 3.1.3. In a conversation with Mr Khader on 4 March 2019, in which he says he told Mr Khader that HC One did not want him to work there again because he was highlighting medication errors they made. He says in his reasonable belief this tended to show a danger to health and safety?[37]The claimant withdrew his allegation in respect of the conversation on 4 March 2019. The identified issue refers to Mr Kharder but he then said the conversation was with Mr Auckland. He did not ask Mr Auckland any questions in crossexamination. The claimant said that he withdrew that claim because he could not remember what had taken place in the telephone conversation. He was unable to tell the Tribunal what happened in the alleged telephone conversation with John Auckland. 3.2. The Tribunal must decide: 3.2.1. What the claimant said or wrote? 3.2.2. Did he disclose information? 3.2.3. Did he believe the disclosure of information was made in the public interest? 3.2.4. Was that belief reasonable? 3.2.5. Did he believe it tended to show that: 3.2.5.1. A person had failed, was failing, or was likely to fail to comply with any legal obligation; 3.2.5.2 The health or safety of an individual had been, was being or was likely to be endangered? 3.2.6. Was that belief reasonable?[38]There is no requirement to go through these steps because the respondent accepted that there were two protected disclosures made in the two complaints on 29 October 2018 and 22 January 2019. 3.3. Did the respondent do the following things: 3.3.1.Terminate the claimant’s contract or refuse to offer him more shifts; 3.3.2. Not pay the claimant his holiday pay or wages? 3.4. If so, was that done on the ground that the claimant made a protected disclosure? `[39]The Tribunal is satisfied that the termination was as a result of the claimant failing to confirm that he would work shifts.The relationship then broke down. The content of the text messages showed that the respondent was concerned about the claimant having failed to attend a shift on 22 February and the respondent then pressed him with regard to information required. The respondent continued to offer shifts to the claimant[40]There was a dispute as to what happened at the end of the relationship. After both of the protected disclosures the claimant was offered and accepted work. The termination was as a direct result of a series of texts from 27 February requesting the claimant to confirm his attendance at shifts. It was understandable as the claimant had not responded when asked if he would attend. The Tribunal is satisfied that this is a step the respondent would take with any member of the respondant’s agency workers. There was no evidence that the contract was terminated on the ground that the claimant had made protected disclosures.[41]There was a failure to pay the claimant’s holiday pay but this was on the basis that the respondent was of the view that the claimant was not entitled to holiday pay. It was not on the ground that the claimant made protected disclosures.[42]The following were issues put forward by the claimant that were not agreed by the respondent: Protection under health and safety laws; Kare Plus had a duty to protect the claimant under health and safety laws. All workers are entitled to work in an environment where the risks to their health and safety are properly controlled. if you are an agency or temporary worker then your health and safety is protected by law and employment businesses (agencies) have a duty to make sure that they follow it. This means making sure that workers are protected from anything that may cause harm, effectively controlling any risks to health that could arise in the work place.[43]This was not an issue within the jurisdiction of this Tribunal. Unlawful deductions - pay arrears and admin fees.[44]The deduction from wages was authorised in a signed document headed induction checklist which stated: “I also confirm that following the termination of employment by either myself or Kare Plus office that I am registered for work with. Should this not be returned to my local Kare Plus office within 5 days of termination, I hereby authorise Kare Plus to deduct the cost of the uniform and ID badge from my final wage payment, (unless the uniform has been purchased by myself initially).”[45]The Tribunal is satisfied that there was no unauthorised deduction from wages. Section 13 of the Employment Rights Act 1996 provides that an employer “shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant ` provision of the worker’s contract, or the worker has previously signified in writing his agreement or consent to the making of the deduction.”[46]The deduction was made following written consent included within the document signed by the claimant. Non payment of Holiday pay. This was agreed and is within the consent order.[48]In all the circumstances and, for the reasons set out above, the claims of race discrimination, detriment by reason of making a protected disclosure and unauthorised deduction from wages are not well-founded and are dismissed. Case Number: 1802005/2019 ` EMPLOYMENT TRIBUNALS Claimant: Mr L Mbuisa Respondent: Care AK Ltd. trading as Kare Plus Huddersfield Heard : by CVP video link On: 17 and 18 June 2021 Before: Employment Judge Shepherd Members: Ms Y Fisher Mr M Brewer Appearances: For the Claimant: In person For the Respondent: Ms Rumble CONSENT JUDGMENT By consent the respondent is ordered to pay the claimant the sum of £488.96 in respect of outstanding holiday pay. This is a gross figure and the claimant is responsible for the payment of any tax or National Insurance thereon.