Ms Z Khan v Sheffield Health and Social Care Trust: 1805152/2018
EMPLOYMENT TRIBUNALS
Case No 1805152/2018
Between
Ms Z KhanClaimantSheffield Health and Social Care TrustRespondent
Before
Employment Judge BrainMs L Gould (instructed by counsel) for respondentDate 13 February 2020
JUDGMENT
The Judgment of the Employment Tribunal is that at all material times the claimant was an employee of the respondent for the purposes of Section 230 of the Employment Rights Act 1996.
REASONS
[1]The claimant presented her claim form on 16 April 2018. She pursues a complaint of unfair dismissal against the respondent.[2]Unfair dismissal is a statutory right. The relevant statutory provisions are to be found in Part X of the Employment Rights Act 1996. The statutory right is vested in employees. By Section 94(1) an employee has the right not to be unfairly dismissed by his employer.[3]Part XIV of the 1996 Act is the interpretation part of the relevant legislation. By Section 230 (1), an “employee” for the purposes of the 1996 Act means “an individual who has entered into or works under (or, where the employment has ceased, worked 10.5 Reserved judgment with reasons – rule 61 1 March 2017 under) a contract of employment”. By Section 230(2), “contract of employment” means “a contract of service…. whether express or implied and (if it is express) whether oral or in writing”.[4]Section 230(2) is silent upon the question of when it can be said that someone is employed under a “contract of service” as opposed to a contract for services. There is no precise and formal legal definition of a contract of employment.[5]Four essential elements must be fulfilled for a contract of employment to exist. These are that: There is a contract between the parties. There is an obligation upon the worker to provide work personally. There is mutuality of obligation between the parties. There is an element of control over the work by the employer.[6]I shall refer to more detailed consideration of these four essential elements in due course. If all of the elements are present then the contract may be one of employment. The next step is to consider the surrounding circumstances of the case. Several factors may indicate the existence of a contract of employment. Again, I shall consider this later in these reasons.[7]I shall firstly make findings of relevant facts. I shall then consider the law in more detail before going on to set out the conclusions that I have reached.[8]The instant case is in fact the fifth claim that has been brought by the claimant against the respondent. Cases numbered 1801842/15, 1800422/16 and 1801206/16 were heard before a full Employment Tribunal panel (of which I was the Employment Judge) in October 2017. This was a complaint brought under the Equality Act 2010. The claimant then presented a fourth discrimination case (case number 1800237/17). The fourth claim was stayed pending the outcome of the first three claims. The stay was lifted and case management directions were issued. The fourth claim now stands dismissed (as from 4.00pm on 12 March 2019) because the claimant failed to comply with an Unless Order on 28 February 2019.[9]The respondent took no issue that the claimant did not have employment status in order to pursue her complaints under the 2010 Act. The 2010 Act contains a wider definition of employment (in Section 83(2)). However, that concession is of no assistance to the claimant upon her claim in these proceedings for unfair dismissal.[10]A Reserved Judgment following the October 2017 hearing was promulgated on 12 December 2017. Some of the factual findings in that Reserved Judgment are of relevance to the instant case. In particular (by reference to the paragraph numbers in the Reserved Judgment): (13) The claimant worked for the respondent pursuant to a fixed term contract which expired on 9 March 2015. 10.5 Reserved judgment with reasons – rule 61 2 March 2017 (14) The claimant also worked for the respondent as a Flexible Staffing Band 2 Support Worker upon the same ward as that where she was assigned pursuant to her fixed term contract. She worked in that capacity from 6 June 2014. (15) She was interviewed on 21 August 2014 to work as a Band 2 Support Worker elsewhere upon other wards within the respondent and was offered a post on 28 October 2014. (125) Following a verification meeting held on 16 April 2015 the claimant was suspended from the Flexible Staffing Band 2 Support Worker role with effect from 17 April 2015.[11]The letter of suspension is in the hearing bundle presented to the tribunal for the purposes of today’s Preliminary Hearing. It may be found at page 18.[12]Following a disciplinary hearing (which was held over several days and which concluded on 21 July 2016) the claimant’s suspension was lifted. The parties are agreed that as a fact the suspension was lifted on 21 July 2016.[13]On 19 February 2018 the respondent wrote to the claimant (pages 109 and 110). The respondent said that, “According to our records you hold one or more of the above assignments with Sheffield Health and Social Care NHS FT and you have not worked in that assignment over the last twelve months or longer. It is Trust policy to close posts that have not been active for twelve months or more. This is because the Trust incurs costs from open assignments including those where no work has taken place. I am therefore writing to inform you that As and When Required Assignment(s) will be terminated with effect from 31 March 2018”. The “above assignments” referred to in the letter are described as “As and When Required Assignments (including Bank Assignments and Zero Hours Assignments)”.[14]Today’s Preliminary Hearing was convened in order to determine whether or not the claimant was an employee for the purposes of the 1996 Act. I heard evidence from the claimant. On behalf of the respondent, I received evidence from Angela Hinchsliff.[15]At paragraph 3 of her witness statement, Mrs Hinchsliff says that she has “been unable to trace a copy of the agreement signed by the claimant when she was appointed to the bank”. [I interpose here to say that this is reference to the role of Band 2 Support Worker. For convenience, I shall now refer to the claimant’s role with the respondent as that of “bank worker”].[16]Mrs Hinchsliff referred me to a template blank contract at pages 1 – 13 of the bundle. She says unequivocally that, “these are the terms to which the claimant worked when engaged on an assignment at the Trust”.[17]When the claimant was cross examined by Ms Gould, it was ascertained that the claimant does not have a copy of the contract either. It was put to her that when she worked for the respondent as a bank worker, she was doing so pursuant to the terms and conditions referred to by Mrs Hinchsliff at pages 1 – 13 of the bundle. The claimant said that “the terms and conditions could have been changed”. 10.5 Reserved judgment with reasons – rule 61 3 March 2017[18]The claimant did not deny signing a contract such as that in the bundle at pages 1 – 13. I accept the respondent’s evidence that the claimant would have signed and did sign a contract in those terms. This was the respondent’s clear evidence. It was not suggested to Mrs Hinchsliff by Mr Hiles that the claimant had signed a contract in different terms. It formed no part of the respondent’s case that the template’s terms had changed from those that were current when the claimant took up the role of bank worker. I have no doubt that that the respondent would have informed the tribunal had this been the case.[19]The agreement (commencing at page 1) is headed “Terms and Conditions of Employment”. The terms and conditions are said, at Clause 1(a), to “take effect in substitution for all other previous agreements whether written or verbal between the Trust (and/or its predecessor organisation) and the employee”.[20]Clause 2 provides that the worker’s duties and responsibilities will vary according to the needs of the service, that the worker is accountable to a designated ward/site manager when working a shift and is accountable to the bank staffing manager in relation to all contracts and training issues. General duties are those as detailed in the job description a copy of which is at pages 14 – 16.[21]Much of the focus this morning centred upon Clauses 6 and 7. It is worth setting these out in full: “6 You have an as and when 48 hours annualised contract.(a) As a bank worker, you have no normal working hours, however, as a guide there is an expectation that you will work at least 1 shift every 8 weeks but not less than 48 hours in every 12 months. Your working pattern will be monitored by the bank staffing team to ensure that you meet your contracted hours.(b) There is no obligation on the Trust to offer you work over and above the 48 minimum hours per year provided for in its contract and you are not obliged to agree to work any additional hours which may be offered to you from time to time during the contract but if you agree to work any additional hours offered to you then the terms of this contract will apply to those additional hours.(c) You are required to inform the Trust of your availability to work on an ongoing basis and inform the bank staffing team of any changes which may occur to your circumstances.(d) As a bank worker, you have no normal working hours. Your working pattern will be monitored by the bank staffing team to ensure that you comply with the Working Time Directive. 10.5 Reserved judgment with reasons – rule 61 4 March 2017(e) In order to be eligible for any hours which may be offered, you must agree to undertake the training and supervision sessions referred to in Sections 9 and 10, for which you will receive the appropriate payment.(f) A variety of shifts throughout the 24 hour period, including weekends and Bank holidays maybe offered.(g) Should you not undertake any Bank shifts over a rolling 12 month period this contract may be terminated and you may be required to reapply before being considered for Bank work again. In these circumstances the Bank office will write to you before removing you from the Bank register”.[22]It is unnecessary, I think, to set out in detail the other provisions in the contract. Amongst other things, the contract deals with: Annual leave entitlement (with accrual at a rate of 12.5% of total working hours up to a maximum of 29 days of annual leave over the leave year). Mandatory training and supervision. Provisions regarding sickness if due to illness the worker is unable to attend when he or she has accepted a designated shift. Pension entitlement. The duty of confidentiality. Uniform and dress code. Professional registration, revalidation and continuing professional development.[23]The worker is required to give four weeks’ written notice to terminate the contract of employment although that provision is said not to prevent either party from waiving the right of notice. The period of notice required from the respondent to terminate the contract is one week’s notice for every full year of service with a minimum of four weeks and a maximum of twelve weeks.[24]The worker is subject to the respondent’s disciplinary rules and regulations. Where a worker is suspended, he or she will receive suspension pay being the greater of either the average of their earnings from undertaking bank shifts over the past three months or of any bank shifts which have been pre-booked.[25]The disciplinary proceedings referred to at paragraphs 10 to 12 above to which the claimant was subjected were in relation to matters which occurred following the expiry of the fixed term contract on 9 March 2015 and which occurred while the claimant was only working as a bank worker.[26]The letter of 28 July 2016 confirming the disciplinary outcome is helpfully reproduced in the Preliminary Hearing bundle at pages 30 – 35. It can be seen that the first four allegations arise out of events that took place on 31 March 2015, 10.5 Reserved judgment with reasons – rule 61 5 March 2017 following the expiry of the claimant’s fixed-term contract. Therefore, it follows that the claimant was answerable to the respondent under the respondent’s disciplinary procedure for events that occurred while she was undertaking bank work.[27]About Clause 7(a) of the contract cited at paragraph 21 above, Angela Hinchsliff says (in paragraph 6 of her witness statement) that, “The inclusion at Clause 7(a) of the bank contract of an expectation that bank workers will work at least 48 hours in every 12 months has been raised at previous banks steering group meetings and I have sought an explanation as to why this requirement was included in the bank contract. Nobody at the Trust appears to know why this was included in the bank contract, but the belief of staff side representative is that it was included to ensure that bank staff undertake a minimum amount of training. Bank workers have to have the required mandatory training in place in order to be allowed to undertake any bank shifts. However, it is the bank worker’s responsibility to book their own training and make sure that it is kept up to date”.[28]She goes on to say in paragraph 7 of her witness statement that the expectation that bank workers will work one shift every eight weeks and not less than forty-eight hours in a twelve months’ period is not actively managed by the Trust. She says, “For instance, if it were to become apparent that a bank worker had not met these expectations then I would not look to offer specific shifts to the bank worker and/or insist that they work some shifts to meet the forty-eight hour minimum. It is entirely up to the bank worker as to whether they accept any shifts that might become available at the Trust. However, the Trust runs a report twice a year to identify bank staff who have not worked 48 hours in the previous 12 months and those bank contracts maybe terminated (see below)”.[29]In paragraphs 10 and 11 of Mrs Hinchsliff’s witness statement, she recites Clause 7(g) (cited above) and she confirms that the claimant’s contract was terminated on 31 March 2018 as the last bank shift worked by the claimant was on 13 April 2015.[30]The claimant was, of course, suspended between 17 April 2015 and 21 July 2016. Following the lifting of the claimant’s suspension, the respondent required her to undertake mandatory training before she would be allowed to work any bank shifts. Mrs Hinchsliff gives evidence to that effect at paragraph 12 of her witness statement. She refers to an email which she sent on 31 August 2016 to Fiona Goudie, Consultant Clinical Psychologist in which the claimant’s training programme was set out. (Mrs Goudie had chaired the claimant’s disciplinary hearing). Mrs Hinchsliff confirmed to Mrs Goudie that mandatory training had been booked for the claimant on the dates stipulated at page 36 of the bundle. A number of supervision sessions had also been booked for the claimant to attend with the bank staff manager. The dates for those sessions are stipulated at pages 37 and 38. By clause 10 of the contract (copied at page 5 of the Preliminary Hearing bundle) the claimant was required to attend as a minimum of one supervisor session each year with the bank staffing manager.[31]In evidence given under cross examination, Mrs Hinchsliff fairly accepted that the claimant was not in a position to undertake any bank work after 17 April 2015 and prior to 21 October 2016 (being the date of the final mandatory training session). She had to undergo the training that had been booked as referred to at page 37 and 10.5 Reserved judgment with reasons – rule 61 6 March 2017 therefore was in no position to actually start work as a bank worker until after 21 October 2016.[32]It is not in dispute that the claimant in fact did not undertake any bank work after 21 October 2016 until the respondent terminated the contract by giving a little over four weeks’ notice to the claimant in the letter of 19 February 2018. The period of notice given by the respondent was in line with the provisions in the contract at Clause 11 regarding notice periods. Where the parties’ part company on the facts is as to the reasons why the claimant did not undertake any bank work after 21 October 2016. Whether the respondent acted reasonably in dismissing the claimant will be a matter for the tribunal to determine at the final hearing. At this stage, therefore I need not rehearse the competing factual arguments as to what happened after 21 October 2016.[33]I now return to a more detailed consideration of the four essential elements referred to at paragraph 5 which must be fulfilled for a contract of employment to exist. The first of these is the requirement for there to be a contract. Ms Gould took no issue that there is a contract in this case. The question for the tribunal of course is whether or not the contract is one of employment.[34]The second essential element is that of personal performance. It is the essence of a contract of service that an individual undertakes to provide his or her services personally. Again, Ms Gould fairly acknowledged there to be no issue around this essential element. There is no question that, pursuant to the contract, the claimant was unable to send a substitute in order to perform the duties assigned to her.[35]The third essential element is that of control. There are many forms of control. These may be practical and legal, direct and indirect. It is not necessary for the work to be carried out under the employer’s actual supervision or control. Control requires that ultimate authority over the purported employee and the performance of his or her work rests with the employer. Indirect control, which exists by virtue of an employer’s right to terminate the contract if the worker fails to meet the required standards of skill, integrity or reliability is not of itself sufficient. Some element of more direct control over what the worker does is needed.[36]In my judgment, there was significant control over the claimant by the respondent. The duties that she was to carry out were those as detailed in the job description. By Clause 2 (summarised at paragraph 20) her duties were as explained to her at the start of her shifts. Pursuant to that provision she was accountable to a designated ward/sit manager and to the bank staffing manager. Pursuant to Clause 3 of the contract she was assigned to her place of work by the respondent.[37]Further, she was required to undertake mandatory training and was subjected to minimum standards of supervision. She was liable to disciplinary action pursuant to the respondent’s disciplinary rules and procedures. Indeed, disciplinary action had been taken against her because of events that occurred while she was working as a bank nurse and after she had ceased to be employed by the respondent under the fixed term contract. 10.5 Reserved judgment with reasons – rule 61 7 March 2017[38]By clause 18 the claimant was required to adhere to the respondent’s policies and procedures. She was required to comply with the respondent’s uniform and dress code.[39]In sum, while working for the respondent, the claimant was subjected to a significant amount of control in terms of being instructed where she was going to work, what she was going to do when she got to work and the lines of accountability. The respondent had a significant degree of control over the claimant in that if she failed to work to the standards required she was liable to action being taken against her pursuant to the respondent’s disciplinary policy and ultimately to being dismissed upon notice (and in the case of gross misconduct, to be dismissed upon summary notice). Viewed in the round, the claimant worked, in return for her designated rate of pay and annual holiday, at a workplace designated by the respondent and for the respondent’s benefit and while in the workplace the respondent retained a degree of control over her.[40]In reality, the argument in this case centres upon the remaining essential element which is that of mutuality of obligation. This is now generally regarded as a necessary element of contracts of employment. It is usually expressed as an obligation on the employer to provide work and a corresponding obligation on the employee to accept and perform the work offered. Relevant considerations include whether there are any notice requirements or whether a worker is free to leave at any time in favour of alternative work. The phrase “mutuality of obligation” should not be understood as requiring the purported employee to be obliged to work whenever asked by the employer. It permits him or her to refuse work. This may involve a factual assessment as to whether any refusal is so extensive as to deny the existence of an obligation even to do a minimum amount of work.[41]It would also be an error to approach the question of mutuality by looking for evidence of precession in the hours and days to be worked. The focus should be upon whether the history of the relationship showed that it had been agreed that there was an obligation on the claimant to at least do some work and an obligation upon the employer to pay for it.[42]The mutuality of obligation test is most often relevant where an individual has carried out work on a casual, irregular or sporadic basis over a period of time. Where there are long gaps between each spell of work (as may be the case with seasonal workers) the question is whether mutuality of obligation subsists during those periods when the individual is not working giving rise to a continuous (or global) contract of employment spanning the separate engagements. The global contract may arise where the employer and employee remain under some kind of obligation towards one another during the breaks between specific engagements. Usually, the question is whether there was a continuing obligation on the employer to offer work that becomes available during some breaks and a corresponding obligation on the worker to perform such work as provided.[43]Ms Gould referred to a number of cases one of which is Clark v Oxfordshire Health Authority [1998] IRLR 125, CA. This case is very much on point as it concerns a complainant who worked for the respondent health authority upon its nurse bank as a staff nurse. She contended that she was an employee with sufficient continuity of employment to pursue a claim of unfair dismissal. Reading from the head note, she 10.5 Reserved judgment with reasons – rule 61 8 March 2017 had no fixed or regular hours of work but was offered work as and when an appropriate temporary vacancy occurred at any one of the hospitals within the Authority’s area. The relevant conditions of service stipulated that bank nurses are not regular employees and have no entitlement to guaranteed or continuing work. The complainant was issued with a statement of employment. This contained some of the hallmarks of an employment relationship which included provisions relating to discipline and dismissal, a grievance procedure and a duty of confidentiality. Those features are present in the instant case.[44]The complainant in Clark had no entitlement to any pay when she did not work and no entitlement to holiday pay or sick leave. If she was not offered work there was no action she could take to require the Authority to offer it to her. There was no obligation upon the Authority to offer her work and no obligation upon her to accept work when it was offered to her. The Court of Appeal held that for there to be a contract of employment, some mutuality of obligation was required. There was no mutuality of obligation in Clark during periods when the complainant was not working on an individual engagement. Hence, she did not have sufficient continuity of employment to pursue her unfair dismissal claim because the breaks between her assignments broke continuity.[45]In Carmichael and Another v National Power Plc [1999] ICR 1226, HL the House of Lords held that casually employed tour guides had no contractual relationship at all with a tour guide operator were not actually working because there were no mutual obligations to offer and perform work.[46]The determination of employment status may also depend on an evaluation of factual circumstances as well as the construction of written documents. Dealings between the parties therefore, may give rise to mutual expectations that work will continue to be provided. The consideration of all the circumstances may lead a tribunal to determine that the written agreements do not reflect the true agreement between the parties. The tribunal must consider how the contract operates in practice and whether the clauses in the agreement reflect the reality of the situation.[47]I was told by Ms Gould that Clarke is the most recent and authoritative case upon the issue of the status of bank workers. I found it to be a most helpful authority. At paragraph 41, Sir Christopher Slade said, “…the authority was at no relevant time under any obligation to offer the applicant work nor was she under any obligation to accept it. I would, for my part, accept that the mutual obligation was required to found a global contract of employment need not necessarily and in every case consist of obligations to provide and perform work. To take one obvious example, an obligation by the one party to accept and do work if offered and an obligation on the other party to pay a retainer during such periods as work was not offered would in my opinion be likely to suffice. In my judgment, however, as I have already indicated, the authorities require us to hold that some mutuality of obligation is required to found a global contract of employment. In the present case I can find no such mutuality subsisting during the periods when the applicant was not occupied in a ‘single engagement’. Any obligation of confidentiality binding her during such periods would have stemmed merely from the previous single engagements. Apart from this, no continuing obligation would have ever fallen on the authority during such periods”. 10.5 Reserved judgment with reasons – rule 61 9 March 2017[48]Sir Christopher also referred (at paragraph 24) to passages in Nethermere (St Neots) Ltd v Gardiner [1984] IRLR CA. He cited a passage from Kerr LJ who said in Nethermere that, “The inescapable requirement concerning the alleged employees however, …is that they must be subject to an obligation to accept and perform some minimum, or at least reasonable, amount of work, for the alleged employer. If not, then no question of any ‘umbrella’ contract can arise at all, let alone its possible classification as a contract of employment or of service”. [The expression ‘umbrella’ is an alternative for what is commonly known as a global employment contract].[49]The key to my determination in this case is the proper construction of Clauses 6 and 7. Ms Gould took no issue with my observation that Clause 6 refers to the claimant having a contract of some kind which on the face of it obliges her to work for fortyeight hours per year. Ms Gould’s case was that Clause 6 must be read in conjunction with Clause 7. At paragraph 18 of her submissions she said that Clause 7(a) qualifies Clause 6 in that Clause 7(a) says that the forty-eight hours’ stipulation in Clause 6 is no more than a guide or an expectation as to the minimum number of hours required of the worker and did not import an obligation to work for that minimum number of hours.[50]Clause 7(a) may be read as suggesting that a bank worker, as a guide, ought to work at least one shift every eight weeks and not less than forty-eight hours in every twelve months. Alternatively, the guidance may be construed as a suggestion that the worker should do at least one shift every eight weeks but has an obligation to work not less than forty-eight hours in every twelve months. In other words, in fulfilment of that obligation, the respondent guides (or suggests that) the worker should work at least one shift in every eight weeks and not less than forty-eight hours in every twelve months.[51]It is well known, as a principle of construction, that a deed or other instrument shall be construed more strongly against the maker of it. However, this principle is only to be applied to remove a doubt or ambiguity and as a last resort where the issue cannot otherwise be resolved by the application of ordinary principles of construction. Deciding what an express term means is simply a matter of interpreting the document. The contract should be interpreted not according to the subjective view of either party but in line with the meaning it would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. Evidence of the surrounding circumstances may be taken into account. While extrinsic evidence is not admissible to help interpret a contract it is permissible to take account of the surrounding circumstances when construing the terms of it. An agreement should not be interpreted in a vacuum.[52]In my judgement, the proper construction of the agreement within the bundle commencing at page 1 is that the claimant was under an obligation to work for at least forty-eight hours per annum. The ‘guide’ at Clause 7(a) was in reality an expectation that she would work at least one shift in every eight weeks. However, the requirement to work not less than forty-eight hours was not a guide or expectation but an obligation. That this was the case is underscored not only by Clause 6 (which is very clear in its terms) but also by Clause 7(b) which refers to their being no obligation upon the respondent to offer the claimant work over and above forty-eight 10.5 Reserved judgment with reasons – rule 61 10 March 2017 minimum hours per year. If the requirement to work at least forty-eight hours a year was simply a guide or expectation then Clause 7(a) would have said so and Clause 7(b) would not have been couched in those terms. There would have been no need to say that the respondent was under no obligation to offer the claimant more than forty-eight hours of work if there was no obligation to offer her anything at all.[53]I also take into account Angela Hinchsliff’s evidence that the claimant was dismissed because she had failed to undertake any work after April 2015. By paragraph 7 of Angela Hinchsliff’s witness statement, the respondent has a practice of identifying bank staff who have not worked forty-eight hours in the previous twelve months. Those that fail so to do are identified and are liable to have their contracts terminated. That practice is consistent with there being an obligation upon the bank workers to do at least forty-eight hours a year. If there was no such obligation, then the bank workers would not be liable to have their contracts terminated upon that basis. The parties’ dealings in this respect is thus entirely consistent with there being an obligation upon the respondent to offer at least forty-eight hours of work to the bank workers and upon them to undertake at least that amount of work. Those bank workers that are able to offer at least forty-eight hours a year will be provided with that much work by the respondent. That much is apparent from the fact that the respondent is under no obligation to offer work over and above forty-eight minimum hours per year. The corollary of that obligation (in Clause 7(b) is that the respondent is obliged to offer at least forty-eight hours work per year.[54]There is, therefore, mutuality of obligation. In accordance with the passage from Nethermere which I have cited at paragraph 48 above, the claimant was subjected to an obligation to accept and perform some minimum amount of work. The respondent was obliged to provide that minimum amount of work to her. I accept entirely that the respondent was not obliged to offer the claimant any work over and above the forty-eight hour minimum. Similarly, the claimant was under no obligation to accept any work over and above that minimum had she achieved it. That there was no mutuality of obligation aside from the forty-eight hour minimum does not detract from my finding that there was mutuality of obligation by virtue of the minimum hours of work obligation which is the combined effect of Clauses 6 and 7.[55]If I am incorrect about my interpretation of Clauses 6 and 7 by the application of ordinary principles of construction, then I hold that the ambiguity contained in the first sentence of Clause 7(a) should be held against the respondent and in favour of the claimant. This is the respondent’s contract. The respondent drafted it. The ambiguity as to whether the reference to forty-eight hours of work in the first sentence of Clause 7(a) is simply a guide or expectation on the one hand or a legal obligation on the other must be resolved against the respondent.[56]The other features to which I have referred above and summarised at paragraph 39 are of little assistance. I agree with Ms Gould that many of those features were present in the Clarke case in which the complainant was held not to be an employee. The case of Clarke would have been highly persuasive as in reality Clarke is on all fours with the instant case on the facts but for Clauses 6 and 7 and the operation of those clauses in practice. However, the crucial distinction between Clarke and the instant case is the presence of Clauses 6 and 7 and the fact that the respondent acted so as to treat a failure to achieve a forty-eight hours’ minimum amount of work as a cause for termination of the agreement. 10.5 Reserved judgment with reasons – rule 61 11 March 2017[57]Ms Gould submitted that Clause 7(g) provided that the respondent may terminate the contract should the worker do no bank shifts over a rolling twelve months’ period. She argued that it followed that a worker doing between one hour and forty-eight hours of work per year would not fall to have the contract terminated by virtue of having failed to achieve the minimum of forty-eight hours work.[58]Again, however, there is an ambiguity of the proper construction of Clause 7(g). When Clause 7 as a whole is read in full, my interpretation is that a worker not undertaking any bank shifts at all over a rolling twelve months’ period is liable to termination of the contract and to having to reapply before being considered for bank work again. An employee who undertakes between one hour and forty-eight hours of work per year is not, on a proper construction, required to reapply before being considered for bank work again but is nonetheless liable, as a matter of practice, to termination of the contract. That practice is followed as is apparent from Angela Hinchsliff’s witness statement at paragraph 7. The respondent, of course, has the right to bring the contract to an end upon proper notice pursuant to Clause 11. That on my view is the correct interpretation of Clause 7(g) by the application of ordinary principles of construction. Again, if I am wrong on that, then the ambiguity at Clause 7(g) must be construed against the respondent as the drafter of the document.[59]In all the circumstances, on the specific facts of this case therefore, I find that the claimant was an employee for the purposes of Section 230(1) of the 1996 Act. All of the four essential elements were present throughout the time that she was employed as a bank worker.[60]The matter will now be listed for a final hearing to determine the claimant’s complaint of unfair dismissal. By paragraph 15 of the respondent’s grounds of resistance, the respondent reserved the right to serve amended grounds of resistance in the event of the tribunal finding that the claimant is an employee and that the tribunal has jurisdiction to determine the unfair dismissal complaint. As I have so found, I give the respondent permission to file amended grounds of resistance. I therefore give the following directions:(1) The respondent shall file the Employment Tribunal and serve upon the claimant amended grounds of resistance in the claimant’s complaint of unfair dismissal. This step shall be taken on or before 5 July 2019.(2) The claimant shall serve the respondent with a schedule of the losses that she seeks to recover consequent upon the dismissal by 12 July 2019.(3) The parties shall give disclosure of documents in their possession and control which are relevant to the issues to be determined at the hearing of the claimant’s unfair dismissal complaint. The respondent shall serve on the claimant copies of documents in its possession in control of which disclosure is given. This step shall be taken on or before 19 July 2019.(4) The claimant shall serve the respondent’s solicitors with copies of the documents of which she gives disclosure on or before 26 July 2019. 10.5 Reserved judgment with reasons – rule 61 12 March 2017(5) The respondent’s solicitors shall have responsibility for preparation of the bundle of documents to be sued by the tribunal at the hearing. The claimant’s copy of the hearing bundle shall be served upon her on or before 2 August 2019.(6) The respondent’s solicitors shall bring along sufficient copies of the bundle to be used by the tribunal at the hearing.(7) The parties shall exchange witness statements of fact. The evidence which each party wishes to give shall be set out in the witness statement. Cross reference to documentation shall be by way of reference to the pagination within the bundle of documents. Witness statements shall be exchanged on or before 6 September 2019.(8) The case shall be listed before the Employment Judge sitting in the Sheffield Employment Tribunal with a time estimate of two days. It shall take place upon 19 and 20 September 2019.(9) The parties have permission to apply to vacate these dates should they be inconvenient to the parties (for good reason). Permission is granted for either party to apply to the vacate the dates within fourteen days of the date upon which this Judgment is promulgated. If an application is made and is successful than the tribunal will relist the case accordingly.[1]The respondent unfairly dismissed the claimant on 31 March 2018.[2]Accordingly, the claimant’s complaint of unfair dismissal succeeds.[3]Remedy 3.1. It is not just and equitable to order the respondent to pay a compensatory award. 3.2. The respondent shall pay a basic award to the claimant in an amount to be quantified. 3.3. The claimant contributed to her dismissal such that it is just and equitable to reduce the basic award by one-half. Case Number: 1805152/2018 3.4. No award shall be made pursuant to section 38 of the Employment Act 2002, the Tribunal having determined on 1 May 2019 that a statement of terms and conditions of employment had been served upon the claimant by the respondent.[1]By Rule 70 of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the judgment may be confirmed, varied or revoked.[2]An application for reconsideration shall be presented in writing (and copied to all of the other parties) within 14 days of the date upon which the written record (in this case that being Judgment) was sent to the parties. It follows therefore that the claimant’s application for reconsideration dated 30 January 2020 of the Judgment dated 20 January 2020 was presented in time.[3]Under Rule 70, a judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows an Employment Tribunal a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. The discretion must be exercised judicially. This means having regard not only to the interests of the party seeking the reconsideration but also the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[4]The Tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases fairly and justly. This obligation is provided in Rule 2 of the 2013 Regulations. The obligation includes:• Ensuring that the parties are on an equal footing.• Dealing with cases in ways which are proportionate to the complexity and importance of the issues.• Avoiding unnecessary formality and seeking flexibility in the proceedings.• Avoiding delay, so far as compatible with proper consideration of the issues.• Saving expense.[5]The procedure upon a reconsideration application is for the Employment Judge that heard the case to consider the application and determine if there are reasonable prospects of the original decision or judgment being varied or revoked. Essentially, this is a reviewing 11.12 Judgment on reconsideration – no hearing - rules 70 and 73 Case No: 1805152/2018 function in which the Employment Judge must consider whether there is a reasonable prospect of reconsideration in the interest of justice. There must be some basis for reconsideration. It is insufficient for an applicant to apply simply because he or she disagrees with the decision. The Employment Judge may also seek the views of the parties upon the application. 6.If the Employment Judge considers that there is no such reasonable prospect then the application shall be refused. Otherwise, the original decision shall be reconsidered at a subsequent reconsideration hearing. The Employment Judge’s role therefore upon considering such an application is to act as a filter to determine whether there is a reasonable prospect of the Judgment being varied or revoked were the matter to go back to the full panel. 7.A difficulty for the claimant is that her representative consented to judgment in the sum awarded. 8.I indicated in a letter that I caused to be sent out dated 6 February 2020 that it would be wrong for me to dismiss the application at this stage as having no reasonable prospect of success without first inviting the respondent’s solicitor to comment and inviting the claimant to explain: the basis upon which the Tribunal may vary or revoke a judgment entered into with the consent of a party’s representative; and to set out her calculation of the basic award in the light of the information now disclosed to her. 9.Each party has made further submissions. The claimant has not set out her calculation of the basic award. Doubtless Mr Hiles has informed her that the calculation of the basic award must be upon the basis of the earnings as an agency nurse and not her earnings with the respondent in her substantive role. That being the case, it is very difficult for the Tribunal to calculate the claimant’s earnings in order to calculate the basic award based upon the information that she has supplied as there is no differentiation between the earnings in the two roles. 10.A more substantive difficulty for the claimant is the agency issue referred to by the respondent’s solicitor. Mr Hiles had ostensible if not actual authority to bind the claimant and did so by consenting to judgment in the amount set out in the Judgment of 20 January 2020. The interests of justice test applies as much to the respondent as the claimant. There is a public interest in finality in litigation. In the Tribunal’s judgment the agency issue is decisive. It is not in the interests of justice to allow the claimant to re-open the issue which has been the subject of a consent judgment agreed to by her representative. There is thus no reasonable prospect of the judgment being varied or revoked and the reconsideration application is refused. 11.The respondent’s costs application is refused. There is no unreasonable conduct in the claimant applying for reconsideration. She is (it seems) representing herself upon the reconsideration issue and cannot reasonably be expected to have knowledge of the principles of agency and actual or ostensible authority of an agent (Mr Hiles in this case) to bind her. Her reconsideration application was therefore not an instance of unreasonable behaviour on her part.