Mr E Rothwell v FremantleMedia Group Ltd: 2201953/2024 and 6008262/2024
EMPLOYMENT TRIBUNALS
Case No 2201953/2024, 6008262/2024
Between
Mr E RothwellClaimantFremantleMedia Group LimitedRespondent
Before
Employment Judge AdkinIn person for claimantDate 17 December 2025
JUDGMENT
[1]The Claimant was not an employee within the meaning of section 230(3)(a) of the Employment Rights Act 1996. Employment Judge Adkin DATE: 10 June 2025 1 of 2 Case Numbers: 2201953/2024 & 6008262/2024 Reasons having been given orally at the hearing, the parties may apply for written reasons within 14 days of the date of this order being sent to them pursuant to rule 60 of the Employment Tribunal Procedure Rules 2024 (SI 2024/1155). 2 of 2
REASONS
[1]Following the judgment given orally and confirmed in writing on 10 June 2025, written reasons were requested.
Summary
[2]This hearing was to deal with the single question of whether the Claimant was an employee within the meaning of s.230(3)(a) of the Employment Rights Act 1996.[3]Having heard evidence and submissions I found that the Claimant was not an employee.
Evidence
[4]I have had the benefit of 1 of 19 4.1. an agreed bundle of 2,669 pages; 4.2. a witness bundle with five witness statements in it, three from the Respondent (Leilah Mason, Julie Burfoot and Alex McBride) and two from the Claimant (Claimant himself and Debbie Clifford); 4.3. all witnesses also attended to give live evidence and answered questions. Submissions[5]I have had the benefit of written submissions from both sides. Both sides produced an opening note. The Respondent additionally produced a closing note and both sides made submissions at the close of the evidence.
Hearing
[6]This was a hearing in which the Claimant representing himself and Counsel for the Respondent were cooperative and courteous with one another which made the hearing run smoothly for which I was grateful. The Claimant was well prepared, maintained a sense of humour and asked intelligent questions in cross examination.[7]I dealt with an application to exclude evidence which related to matters contained within the Claimant's witness statement, reasons were given for that orally and in a separate judgment on the second day of the hearing.[8]There were also three applications to amend the Claimants claims. It was agreed that those would be dealt with after the decision on employment status principally because two of those applications would be expected to fall away depending on the outcome of this decision, which is what happened.
Findings of Fact
[9]I have been very much helped by the parties producing an agreed chronology. Work engagements[10]A document beginning at page 1,495 and running to 1,499 contains a table of the engagements that the Claimant worked for the Respondent for more than twelve years from February 2012 to 7 June 2024. The Respondent[11]By way of background the Respondent is a television production company that makes a variety of well known light entertainment programmes such as Britain’s Got Talent and X Factor as well as various other programmes.[12]The history of the organisation is in part from Thames Television which has a history going back to the late 1960s. 2 of 19 Period relevant to the claim[13]The period relevant to this claim is from 2010 to 2024 but it is really the period 2019-2024 that I am focusing on in particular although the earlier period is relevant background. Claimant’s career[14]The Claimant had a long history of association with the Respondent organisation.[15]In 2010 he had his first job for the Respondent working as a runner.[16]Over the years he progressed from that junior role to more senior roles of various sorts within televising production in particular in relation to Britain’s Got Talent and X Factor but also other programmes.[17]By 2013 he was working as a researcher.[18]By 2016 the Claimant was performing senior researcher roles and from 2018 onwards he had different roles in production although the responsibilities were to some extent overlapping but with differences in emphasis.[19]Most often in the period from 2018 onwards he was a “post-production supervisor”. In some cases he was “associate producer”. On a couple of occasions the contract described his role as “media manager”. On a couple of occasions, the contract says “postproduction supervisor”, but the onscreen credit is “Edit AP” short for associate producer.[20]For each of the contracts in the table there is an individual listed as “managercontract raiser”. That varies project by project. Often it is the same person for several projects and then it changes. Most of the roles as I have said are either Britain’s Got Talent or alternatively X Factor but there are some other programmes in which the Claimant has been involved. Respondent’s types of engagements Permanent employees[21]The Respondent has employees on permanent contracts of employment typically for more senior roles which sit at a higher level above the level of the production team for individual programmes. That applied to some of the Respondents witnesses in the Employment Tribunal hearing. Other engagements[22]When it comes to the majority of the work force working on different programmes the Respondent has a variety of different bases for engaging those that work for it.[23]There are casual staff vouchers shortened to CSV for engagements of 6 days or less. 3 of 19[24]Another arrangement is called “loan out” which is for a freelancer to engage with the Respondent via their own personal services company.[25]Of central relevance to the Claimants claim are Schedule D and Schedule E. Schedule D[26]Schedule D individuals who meet the criteria in the appendix for self-employment (that’s a HMRC document) are engaged under the general terms and conditions Schedule D which corresponds to self employed tax status.[27]These individuals retain full control of their personal tax affairs.[28]Those on Schedule D are paid in lieu of untaken holiday by invoice. They also invoice for the work that they have done and also for expenses. There is no requirement for them to ask for holiday. In practice holiday is typically taken between assignments. Schedule E[29]Alternatively, the other main category relevant for this hearing is Schedule E.[30]Schedule E is where individual who the Respondent treats as workers for employment purposes are where the tax is dealt with on a PAYE basis and so they receive a pay slip. Schedule D or E?[31]There appears to be a preference amongst many freelance workers in television production to be paid on the Schedule D basis. The individual typically receives a higher rate and the employer does not pay employer’s national insurance contributions.[32]The Respondent’s case is that any benefit to it as an organisation is relatively marginal and they give their workforce a genuine choice as to which status as between Schedule D or E they wish to have. Pension provision[33]Individuals paid under the Schedules D or E are enrolled into the so called “people’s pension” and contributions made.[34]That scheme is less generous than the pension scheme operated for permanent and fixed term employees who have a scheme operated by Scottish Widows.[35]The discrepancy in pension provision led the Claimant to challenge his employment status although the details of the pension payment discrepancies are not relevant for present purposes. 4 of 19 Details of Schedule D[36]Looking at some specific terms of Schedule D: clause 4.1 says that the individual shall be wholly responsible for all tax, national insurance and other social security contributions. The individual is required to indemnify the company in relation to taxes, including VAT arising out of any tax assessment.[37]Clause 12.1 provides that the company and the individual hereby agree that this agreement is a contract for services and not a contract of employment or an agency agreement. Dinner per diems[38]There is an arrangement for dinner per diems. This was confirmed in an email by Debbie Clifford in August 2019: “anyone who is Schedule D or a limited (which I presume refers to limited company) needs to invoice me but if you are PAYE (researchers and runners, Schedule E) you can still claim cash.” US work permit application[39]As early as August 2013 the Claimant was asked to provide information that could be used to apply to the US immigration authorities for a work permit.[40]At around this time a draft memorandum was produced which referred to the Claimant having services to complete and any ongoing projects as they arise. His role was described as “media manager” and the time period was described as the 5 August 2013 to 4 August 2016 i.e. a three year period for the X Factor and Xtra Factor.[41]The Claimant quotes from that wording used for the US immigration application purposes which emphasises the degree of integration and in particular the fact that the members of the team: “possess intimate knowledge of each other’s sense of timing, direction, artistic ability, aesthetic preferences, vision and necessities thus the members are equipped to act as a unified cast.”[42]In the period March 2013 to June 2018 the Claimant was engaged by the Respondent on various individual contracts for different time periods as researcher or associate producer.[43]In 2017 the Claimant was not engaged by the BBC on a contract for six weeks in the period February 2017 to April 2017 on a programme called “Right on the Money”.[44]As a result, the Claimant turned down a contract for Britain’s Got Talent auditions. He says because he was already working for the BBC and BGT auditions was not 5 of 19 something that he knew about so he would have to learn the ropes, he formed the view that it was not physically possible.[45]The Claimant had a second engagement for BBC running from December 2017 to May 2018 a programme called “Making the News”.[46]In September 2018 based on an email exchange between the Claimant and Dawn Grey he was giving the credit “Edit AP” at that time he was working as far as the contract was concerned as a media manager.[47]December 2018 was the first time the Claimant was engaged as a post-production supervisor[48]In April 2019 the Claimant had various WhatsApp exchanges with colleagues about consulting accountants. In fact he did not consult accountants but that was the topic of conversation.[49]On 4 April, right at the end of the tax year, the Claimant wrote to Josh Hoskins the production manager: “I was wondering about going self employed and invoicing, would this be possible and would this affect the pay. I am not sure if I want to do this, but I suppose I have got until June to set it up if I decide to do it”.[50]Four days later on 8 April 2019 the Claimant sent an email to Samantha Cooke and Dereck Chiu “I would like to go self employed at some point and as it is the new tax year I thought it would be neat to switch over now for year 2019/2020 and so I wonder if it would be possible to change my contract to Schedule D.[51]Sam Cooke responded, “I don’t think we can pay you a Schedule D until you have a UTR number/LP10 letter from us. As soon as you get your UTR number we can change the contract to Schedule D and it would start from that point.[52]The Claimant responded five minutes later with the UTR (i.e. the Unique Tax Reference for HMRC purposes). Claimant now Schedule D (one exception)[53]Later in the month on 25 April 2019 Vicky Tang who is a contractor’s assistant sent to the Claimant a contract for the X Factor celebrity series 16. 6 of 19[54]The Claimant responded saying that he had “gone Schedule D”, so he would invoice and sort out his own taxes.[55]The Claimant was then engaged on various different engagements in the period April 2019 to October 2021.[56]There was one exceptional engagement when the Claimant went back onto Schedule E in the period 17 December 2019 to 5 May 2020 but apart from that all others in the period between October 2019 and November 2021 were Schedule D. Five week break[57]The Claimant had a five week break in the period 18 March 2021 to 22 February 2021.[58]In February 2021 the Claimant worked over a weekend picking up two days work. By way of a comment this seems to be consistent with the Claimant’s general approach. He was extremely hardworking and rarely declined any work request possibly to his own detriment. He evidently loved the work but seems to have sacrificed to some extent rest and recouperation.[59]In May 2021 the Claimant had a thirteen day break starting on 21 May 2021.[60]In June and July 2021, the Claimant worked 21 days out of a 41 day period for a programme called “Eating with my Ex” Series V. The table of roles contains this comment: No contract signed or returned. This contract is an overarching contract consisting of adhoc days. This contract overlaps with contracts on Family Fortunes and Thames Development.[61]The Claimant had an eight day break in the period between 24 October 2021 and the 2 November 2021 and then began an engagement for Britain’s Got Talent Series XXV in November 2021.[62]The Claimant had a four week break commencing on 4 July 2022 although there were two ad hoc days that he worked in the period 8 August 2022. Email[63]The Claimant had an email account that would generally work. In some cases the email account was switched off during his absence between engagements but often was not and he was able to respond to emails on occasion in breaks.[64]The Claimant then provided ad hoc services to a programme called Who Cares Wins II that was 8 and 13 August and then began working on that series between 13 August and 9 September. 7 of 19[65]The Claimant did some work on a programme called Purge Palace between 12 September and 5 October 2022 and then the day after that on 6 October commenced working for Britain’s Got Talent XXVI. Break[66]At the end of that contract on 9 June 2023 he had a sixteen day break until 26 June 2023 at which point he commenced two contracts which ran consecutively from 26 June to 15 December 2023 for Mama Mia I have a Dream. Xmas break 2023[67]The Claimant then had a three week break from 15 December 2023 until 8 January 2024 with a half day worked on 20 December 2023. Claimant discovers better pension[68]It was in September 2023 that the Claimant discovered that there was a more generous pension scheme for permanent employees employed under a contract of employment. He requested but was denied access to that more generous pension provision.[69]He had a meeting with Layla Mason who is one of the Respondent’s witnesses on 14 November 2023.[70]There was an email exchange on 20 November 2023 between Alex McBride, one of the Respondent’s witnesses and Julie Barfoot another of the Respondent’s witnesses, the heading “re: Edwin Rothwell”. Ms McBride, HRBP wrote: …its ok for Edwin to be [Schedule] D for the BGT contract in January. His continuous service is long though, since August 2022, he will have had a couple of 3 weeks breaks between engagements. It’s also helpful he has performed different role on different shows, on different rates, showing that contracts get renegotiated each time and he is not just guaranteed work. He will, however, really need to have a break after this BGT contract please, and not be guaranteed additional work straight off the back of it. Please can you share this info with the team so that they know not to engage him off the back of the BGT contract? This does not mean that he can’t be contracted again of course - we just need to see a break in his continuous service if he wants to remain contracting as Schedule D for possible future engagements.[71]The Claimant was not copied into this exchange.[72]This extract does demonstrate a couple of points. First, it is right to say the Claimant did have different rates for different roles and there was some renegotiation. It also shows that to some extent the HR department had a role in policing ensuring that there were meaningful breaks that were taken. This was to ensure for Schedule D, which was for tax reasons. 8 of 19 Complaint[73]The Claimant submitted a written complaint on 4 December 2023.[74]He requested that either there to be a formal grievance or alternatively a complaint in the event that he was not an employee and would need to go down that alternative route procedurally. That letter included the following: I am raising this formal grievance/formal complaint as I want to highlight concerns that I have around sham self employment, the avoidance of recognising my permanent status, and the resulting unpaid wages due to enforced breaks in service. I would also like to seek a resolution to unpaid wages in the form of missing pension contributions. The problem which I have experienced relates to the following facts: The time worked under a “Contract for Service” since June 2018 amounts to approximately 5 years and 5 months. All of the breaks in my last 23 fixed term contracts have been at the request of the Company, and I believe that these breaks (apart from those related to coronavirus) have been put in place to allow the Company to avoid recognising the true nature of my service as a permanent employee, and therefore to deny my access to a range of benefits, in particular, the more generous pension scheme. On 20th September 2023, whilst looking at the newly-launched internal communications system, I discovered a webinar video describing a more generous pension scheme. All of the breaks in my last 23 Fixed term contracts have been at the request of the Company, and I believe that these breaks (apart from those related to coronavirus) have been put in place to allow the Company to avoid recognising the true nature of my service as a permanent employee, and therefore to deny my access to a range of benefits, in particular, the more generous pension scheme. On 20th September 2023, whilst looking at the newly-launched internal communications system, I discovered a webinar video describing a more generous pension scheme. The Company has made an assertion that these regulations do not apply to me, on the basis that I am not, in their eyes, an Employee, however the label given to the relationship by the Employer is not decisive, and I refuse to accept that the right does not apply. I am also of the opinion that the Company has changed my tax arrangements to circumvent Employment law, this allegation is based on these events: Though I have no experience of using the following system, I am told that the IT database that generates contracts is apparently set up to 9 of 19 flag when someone has been invoicing for an extended period, which was explained to me as being related to IR35 rules. The same contracts database apparently also flags when someone has accrued a continuous service period, and it alerts management to the need to impose a contract break, to maintain tax compliance, and to prevent employment rights from accruing. Based on an alert from this IT system, on 22nd September 2021, I was emailed by a manager explaining that I would have to move from invoicing to a PAYE arrangement. An HR Business Partner, Alex McBride, later confirmed that on the new PAYE contract I would be a “PAYE Worker”. I have therefore been both “self-employed” and “worker” in exactly the same role that I have been doing for many years, and I had no choice in this. Again, whilst I accept that this is to legitimately follow tax rules, I believe this is done to also avoid the Company acknowledging my true status. … My current contract ends on 15th December 2023. I will then have another break (which was decided on by the Company) and return again on 8th January 2024 until 7th June 2024. On 29th November 2023, my manager called me to say that after the expiry of the 2024 contract, there would be another enforced break of a one month non-working period. Under the current arrangement, to prevent managers generating any flags on the contracts database, I also have been asked to pretend that I am unaware of any future contracts coming up, to maintain the “self-employed” tax position for the benefit of the Company. The reality is that I am informed of my next contract months in advance, however the information is not put into the contracts database until the last minute, to maintain compliance with tax rules. …. The mismatch between the terms of my contracts, and reality, is also demonstrated by the type of work I am doing, where my contract states that I am working on one project at a time, the reality is that I am working on matters unrelated to the contracted project, sometimes corporate events, and I am often spread across multiple projects.[75]The Claimant also mentioned his concerns more generally about the effect on him financially and psychologically. IT database/flags[76]It was clear from evidence heard in this hearing that the Claimant was correct when he mentioned an IT database which flags up when someone has been invoicing for an extended period. The Respondent’s case is that this is to ensure compliance 10 of 19 with IR35 (i.e. an HMRC regulation designed to combat tax avoidance by workers supplying their services to clients via an intermediary, such as a personal service company, but who would be an employee if the intermediary was not used. The Claimant contends that this system flag is also relating to continuous service. Final engagement[77]On 20 December 2023 the Claimant provided ad hoc services to the Respondent to find clips of BGT for the TV choice awards. After this he was engaged from 8 January to 7 June 2024 for BGT. That is the last contract which was not extended or renewed. Grievance/complaint investigation[78]There were a number of interviews carried out by the Respondent in which witnesses, including the Claimant himself were interviewed by Clare Mulvana. The Claimant confirmed the points made in his letter.[79]The Respondent also interviewed Helen Moore, Julie Burfoot, Leilah Mason, Alex McBride, Josh Hoskins[80]During that investigation Julie Burfoot was asked about control and said as follows: “Julie says Edwin has a more refined knowledge of the productions and what he does day-to-day. Julie doesn’t seem to know about the control, she says Edwin can ask for holiday, but that they wouldn’t want him to take days off during the BGT Judge Tour as those are busy days where he’ll be needed. The working hours is something they fixed for this year, as previously Edwin was working very long hours and the production team wanted this to be more structured so people don’t work too much. Julie says the nature of the production is that you work long hours sometimes, but did not want Edwin to be doing this constantly.”[81]Alex McBride in her interview said: “Alex says that it looks like Edwin is offered work while already engaged on another contract, which is allowed, and freelancers do not have to have finished a contract in order to have a new contract drafted once their original contract has ended.” Grievance/complaint outcome[82]The outcome to the grievance/complaint was provided in a letter dated from David Oldfield dated 23 January 2024 who was one stage CFO for the Respondent.[83]In that letter Mr Oldfield rejected the complaint stating that the Claimant had significantly overestimated the value of pension lost to him.[84]He did not accept that the contract database was used to enforce breaks. 11 of 19[85]He acknowledged that the Claimant sometimes worked on more than one show, but highlighted that some of the contracts contained the type of flexibility that employees would not enjoy e.g. ad hoc days to be worked by agreement. He also highlighted to the Claimant that his rates had varied and that he had control about the performance of his role. He concluded that there had been genuine breaks such that the Claimant had not attained four years’ continuous service and that the Claimant was re-hired for subsequent contracts because he was considered suitable for the role by different production managers.[86]Mr Oldfield emphasised that the Claimant was anxious to maintain his Schedule D status from 2019 onward and that he was registered for VAT even though his earnings were well below the required threshold. He highlighted communications in which the Claimant was robustly trying to maintain his Schedule D status. Option to refuse work[87]When it came to future assignments, the Claimant would be asked about his availability and given the option to refuse. Specific examples are as follows: 87.1. There is one single example which shows him refusing when he was working on the BBC contract. 87.2. On 7 September 2018 Dawn Gray asked whether he was interested in working on BGT 13 running into the following year. 87.3. In May 2020 Ashley Whitehouse sounded the Claimant out about his availability for an idea to potentially run later in the year. 87.4. In March 2021 Paul McDonagh was sounding the Claimant out for a new reality show “Just asking before I reach out to others”. The Claimant said he was interested but flagged up that his rate had increased. 87.5. A couple of months later, in May 2021, Mr McDonagh wrote about the Real Dirty Dancing to check whether the Claimant was available: “No worries if not, just wanted to give you first option as we had you down for the old dates.” Trading names[88]The Claimant has created the trading name “Show Play”, and his invoices also show another couple of other trading names “Singdaq” and “Hit Different”. Tribunal claims[89]The Claimant brought two claims in the Employment Tribunal that is 19 February 2024 and the second claim on 11 August 2024. HMRC guidance[90]I have been taken to HMRC guidance by the Respondent. The role of “post production supervisor” is one of the roles listed by HMRC as appropriate for a selfemployed tax status that is at page 2032 of the bundle. There is also HMRC guidance at 26.12 which says this: 12 of 19 “the fact that an individual has been appointed on a successful track record on say a previous series or a programme does not of itself mean the next engagement is not capable of being a genuine separate engagement.”[91]I bear in mind that this guidance has been produced for purposes and a different exercise to the one that I am carrying out. Law Employment status generally
Law
[92]Only employees as defined in section 230(1) of the Employment Rights Act 1996 can bring a claim of unfair dismissal. That definition is as follows: 230 Employees, workers etc. In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.[93]The classic definition of employment status MacKenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, 515 (endorsed by the Supreme Court in Autoclenz Ltd v Belcher 2011 ICR 1157, SC) identified three particular features of an employment relationship, which is sometimes described as a “contract of service”: “A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.(iii) The other provisions of the contract are consistent with its being a contract of service.” [emphasis added][94]Subsequent case law has made clear that other factors may be relevant and the Tribunal should stand back and look at the overall picture, but three elements should be considered:(i) mutuality of obligation;(ii) personal performance and(iii) control.[95]The approach is sometimes described as a multi-factorial test. Significance of written contract[96]In the context of employment contracts the Supreme Court in Autoclenz Ltd v Belcher and ors [2011] ICR 1157, SC, endorsed a line of cases which stressed that the circumstances under which employment contracts are agreed are often very different from those under which commercial contracts are agreed, with employers largely able to dictate the terms and held that there was less restricted 13 of 19 approach to the circumstances in which a court might look behind the wording of a written contract. Relative bargaining power should be taken account of in deciding whether written contract reflects the truth of the agreement.[97]It is not necessary before a court will look behind the contractual documentation that there is a sham or an intention by the parties to deceive others (Protectacoat Firthglow Ltd v Szilagyi [2009] ICR 835, CA). In that decision (cited in Autoclenz above) Smith LJ said that a tribunal faced with a ‘sham’ allegation must consider whether or not the words of the written contract represent the true intentions or expectations of the parties (and therefore their implied agreement and contractual obligations) not only at the inception of the contract but at any later stage where the evidence shows that the parties have expressly or impliedly varied the agreement between them. Lord Justice Aikens warned that, when seeking out the ‘true intentions’ of the parties, tribunals should not concentrate too much on the ‘private’ intentions of the parties. Ultimately, what matters is what was actually agreed at the time the contract was concluded[98]In Uber BV and ors v Aslam and ors [2021] ICR 657, SC, the Supreme Court held that not only is the written agreement not decisive of the parties’ relationship, it may not be even the starting point for determining employment status: “it would be inconsistent with the purpose of this legislation to treat the terms of a written contract as the starting point in determining whether an individual falls within the definition of a "worker". To do so would reinstate the mischief which the legislation was enacted to prevent. It is the very fact that an employer is often in a position to dictate such contract terms and that the individual performing the work has little or no ability to influence those terms that gives rise to the need for statutory protection in the first place. The efficacy of such protection would be seriously undermined if the putative employer could by the way in which the relationship is characterised in the written contract determine, even prima facie, whether or not the other party is to be classified as a worker.” (emphasis added) Personal service & substitution[99]The leading authority on personal service and the significance of substitution is the decision of the Supreme Court in Pimlico Plumbers v Smith [2018] UKSC 29; 2018 ICR 1551. In that case the employment judge found that there was not an unfettered right to substitute at will. There was no such right given to Mr Smith by the contractual documents and no evidential basis for such a practice. In practice engineers with the company swapped jobs around between each other, and also used each other to provide additional help where more than one person was required for a job or to do a job more quickly, and there was evidence that external contractors were sometimes required to assist a job due to the need for further assistance or to conduct specialist work, the fact was that Mr Smith was under an obligation to provide work personally for a minimum number of hours per week or on the days agreed with the company. 14 of 19[100]Lord Wilson, giving judgment in the Supreme Court held: “34. The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smith's contracts with Pimlico was an obligation of personal performance. To the extent that his facility to appoint a substitute was the product of a contractual right, the limitation of it was significant: the substitute had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations. It was the converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets done. The tribunal was entitled to conclude that Mr Smith had established that he was a limb (b) worker – unless the status of Pimlico by virtue of the contract was that of a client or customer of his.” [emphasis added][101]At the Court of Appeal below in the same litigation (Pimlico [2017] EWCA Civ 51, [2017] IRLR 323) Etherton MR had summed up the case law on substitution clauses in some detail as follows: ''[84] … In the light of the cases and the language and objects of the relevant legislation, I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.'[102]The Supreme Court did not disagree with this approach, and indeed subsequently the EAT has followed it.[103]Ultimately, based on Pimlico, a limited right of substitution does not preclude the conclusion that a person is a worker. 15 of 19[104]By contrast a genuine and absolute right to substitute would suggest that the individual is not a worker (Independent Workers' Union of Great Britain (IWGB) v RooFoods Limited (t/a Deliveroo) [2018] IRLR 84). Submissions Claimant’s submissions[105]What the Claimant says is that the Respondent has engineered a deliberate flip flop or movement between PAYE and self-employment to circumvent employment law. He says that he has provided personal service and that his work is always carried out personally. He contends there is not an ability to send a substitute and that is supported by his witness Mrs Debbie Clifford who says it would not be feasible for someone else to do the work given that this would be letting people down and that is evidently the Claimant’s approach as well.[106]The Claimant says that in respect of control he is at the control of the Respondent in respect of which project, which rate of pay, the days and hours worked, the location, his uniform, he wears a branded T-shirt and in fact produced a branded T-shirt during the course of this hearing. I should say the Respondent disputes that T-shirts are mandatory and suggest that this practice is dying out although it does not deny that there is stock of branded T-shirts available for crew members to wear. It seems to be common ground that these T-shirts could not be worn outside of work.[107]The Clamant says that he was essentially at the “beck and call” of the Respondent during all hours and days of the week during a course of an assignment. He says that the call sheet for an assignment would show the location, timing and contacts on a given production day, also set out the behavioural standards, the anti-bullying and harassment policy. It does not seem to be in dispute that he would not be subject to disciplinary or other employment policies.[108]The Claimant emphasises the degree of integration, he emphasised the way it has been described in documentation put forward for the US immigration process. He has an email with a footer of branded logo. He says that on occasion he worked on programme development matters not just individual programmes but actually development in between programs. He says that he worked for more than one programme simultaneously. He gave me an example of working over weekend or on one occasion being loaned from one project to another. He emphasises his degree of integration during the course of the assignments and that I note company provides him with a laptop for security reasons.[109]In summary, the Claimant says and invites me to conclude that the contractual position is a sham, that it does not reflect the commercial reality which is that he is highly integrated into the team, he is almost invariably always working there either on a programme or development, he emphasises he answers emails and the like in between assignments. The breaks he argues are generated by the HR database and are in reality artificial and artificially in post for tax reasons. He says that he has been pressurised into becoming a Schedule D. 16 of 19 Respondent’s submissions[110]The Respondent does not dispute that during each individual engagement the Claimant met the irreducible minimum requirement of personal service and control. That must be right. The Claimant could not simply substitute someone else. As to control he fitted within closely knit team with people above him and people below him. There was a degree of integration which is noted by the commentary in the US immigration application.[111]The Respondent submits however that the character and terms of the engagement were not those of an employee, and what they emphasise is this: the Claimant’s engagement was assignment by assignment. There were breaks, meaningful breaks and it was clear that the Claimant did have the option to refuse.[112]The Respondent’s fundamental submission is the contract was not a sham but the Claimant elected to be “Schedule D” and deliberately made other decisions specifically to be consistent with self employed status.[113]The Respondent argues that first its an express term of the contract that the Claimant is Schedule D and that this is not a contract of employment as per those terms. Second, that the Claimant has worked elsewhere, for example at the BBC and there was evidence of another independent television production company that he had worked at during the material history.[114]Third, that it is the Claimant’s own choice to be Schedule D. The Respondent’s case is there is genuine choice between Schedule D and E and possibly other options. The Claimant has bargaining power since he is negotiating on which basis he is being paid on and his rate and that the Claimant has made a deliberate decision to maintain self employed status for his own personal tax purposes and there are communications to this effect. For example, in June 2022 specifically not wanting to be on the contracts database, in June 2022 and 2023 needing a break and agreeing to make things look “ad hoc”. The Respondent submits that until recently the Claimant has always been keen to be treated as self employed for tax purposes, that he is consistently sought to arrange his contract to ensure that the Respondent would contract him on Schedule D terms. At the Respondent’s insistence the Respondent emphasises the Claimant was engaged on Schedule E terms since then he has been engaged solely on Schedule D terms.[115]The Respondent emphasise that the Claimant took the preparatory steps to be able to become a Schedule D worker. He has created the trading name “Show Play”, and his invoices also show another couple of other trading names “Singdaq” and “Hit Different”.[116]The Respondent’s submit that he is registered for VAT when this was not necessary since he was below the VAT threshold and this is purely done to emphasise his self-employed status. The payment arrangements are invoices not PAYE and there are significant breaks in continuity. Not only does the Claimant take breaks altogether but he has also got different roles and he is doing different things. 17 of 19[117]Finally, it is emphasised that the fact that the Claimant pitched ideas under his capacity under his trademark company names and tax arrangements fits squarely with self-employment status.
Conclusion
[118]I found this a difficult case.[119]There are various different features of the Claimant’s working relationship with the Respondent pointing both toward and away from employment status.[120]I have to bear in mind that with a couple of exceptions the vast majority of the Claimant’s work is tied to a particular assignment. If the television programme is not “green lit” i.e. agreed by a broadcaster or a streamer the programme is not made and there is not work for the Claimant to do so the assignment does not happen.[121]I accept the Respondent’s submissions that the Claimant work was assignment by assignment, that the Claimant’s work was broken up by meaningful breaks and that the evidence demonstrated that he had the right to refuse assignments which he exercised.[122]If I had formed the conclusion that the Claimant had been pressurised into accepting Schedule D terms when that was not what he wanted, that might have been enough for me to conclude that the contract did not reflect the reality of the situation. That is not the conclusion that I came to. I have seen what WhatsApp exchanges which suggests that it was the topic of conversation between the Claimant and his colleagues including Paul McDonough. The tone of the conversations is light and friendly. From my perspective I do not find evidence that there was anything more than personal recommendations from colleagues in the direction of Schedule D.[123]I accept the evidence from the Respondent’s witnesses that they did not push their workforce toward Schedule D rather than Schedule E. It is clear that there is evidence that HR became involved on at least one occasion to suggest that Schedule E was appropriate for the Claimant. He actively took steps to counter act that; it was not the case that the business was pressurising him.[124]There was evidently a period where the Claimant was mulling over the question about Schedule D or Schedule E. Ultimately however I find that he made his own decision on that. He was not being unduly pressurised by someone else, he is intelligent and has made his own assessment. This was I find a genuine choice.[125]The way that Mr Rothwell worked is similar to the way that many people performing similar production roles worked. I find that is reflected by both the witness evidence I have received and the HMRC guidance which is to chose to be self employed principally for financial reasons, i.e. to receive more money in his pocket than if he was Schedule E and PAYE deductions were made. Having made that assessment and that decision the Claimant has taken deliberate steps to underline and emphasise his self employed status: taking breaks, registering for VAT, and registering trade names for his sole trader status. I find that he has taken those 18 of 19 steps willingly. He was pursuing the goal of ensuring that he had the benefit of self employment as regards his tax situation.[126]The question of self employment for tax purposes is not the precisely the same exercise that I have carried out. Nevertheless there are a number of features of the working relationship which impinge upon both questions.[127]It has evidently been a source of considerable upset and frustration when the Claimant discovered in 2023 that his self employed status while advantageous with some aspects had a drawback in particular with regard pension provision.[128]I reiterate that I have found this a difficult decision but on balance I have found that the Claimant’s status was not as an employee.
The law
[129]Conversely, once an employer satisfies the tribunal that it has acted for a particular reason, that necessarily discharges the burden of showing that the proscribed reason played no part in it (Fecitt at [41] (see also Parsons v Airplus, in which at [43], the EAT rejected the argument that a coincidence in timing with dismissal established that the protected disclosure was the reason).[130]It is necessary for the decision maker/actor to know at least something of the substance of the disclosure that has been made. It is insufficient that they know merely the fact that a disclosure has been made. They must have some knowledge of what the employee is complaining or expressing concerns about (Nicol v World Travel and Tourism Council and others [2024] I.C.R. 893).[131]The statutory provisions protect the worker from detriment on grounds of the act of disclosure. A respondent is not liable for detriment on grounds of other conduct even if connected in some way to that disclosure, provided that it is genuinely separable from the disclosure (Panayiotou v Chief Constable of Hampshire Police [2014] IRLR 500 at [50]). This includes actions undertaken in order to show that belief in the disclosure is reasonable (Bolton School v Evans [2007] I.C.R. 641 at [9]). Detriment[132]A worker is subject to a detriment if “a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work”, considered from the point of view of the victim (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 at [34, 104]; Jesuadason v Alder Hey Children's NHS Foundation Trust [2020] ICR 1226). The disadvantage must be material, so an unjustified sense of grievance cannot amount to a detriment (Shamoon [35, 104]). Time Limits[133]S.48(3)(a) ERA provides that a tribunal shall not consider a complaint under s.47B unless it is presented before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them.[134]Time begins to run from the date of the act or failure to act to which the complaint relates, whether or not the claimant is aware that a detriment has been suffered (Flynn v Warrior Square Recoveries Ltd [2014] EWCA Civ 68; McKinney v Newham London Borough Council [2015] I.C.R. 495).[135]S.48(3)(b) ERA permits the Tribunal to extend time only where it was not reasonably practicable for the complaint to be presented before the end of the period of three months from the act.[136]In Porter v Bandridge Ltd 1978 ICR 943, the Court of Appeal ruled that the correct test as to whether ignorance of the law means that it was not reasonably practicable to have presented the claim on time is not whether the - 20 - claimant knew of his or her rights but whether he or she ought to have known of them.[137]Furthermore, where the claimant is generally aware of his or her employment rights, ignorance of the time limit will rarely be acceptable as a reason for delay. This is because a claimant who is aware of his or her rights will generally be taken to have been put on enquiry as to the time limit. Indeed in Trevelyans (Birmingham) Ltd V Norton 1991 ICR 488, EAT, Mr Justice Wood said that, when a claimant knows of his or her right to complain of (in that case) unfair dismissal, he or she is under an obligation to seek information and advice about how to enforce that right. Conclusions on the issues[138]We make the following conclusions, applying the law to the facts found in relation to the agreed issues. Alleged protected disclosures[139]We have heard extensive submissions from both parties about the alleged protected disclosures and whether they indeed amount to protected disclosures. We do not need to go through each one line by line, because we accept the respondent’s analysis of whether each of the eight alleged protected disclosures do in fact amount to protected disclosures.[140]In summary, some of the alleged disclosures do not involve the disclosure of information and in the case of some, the claimant did not have a reasonable belief that the disclosure tended to show one of the four categories relied on; whereas others did satisfy one or both of these tests. However, for the reasons given by the respondent in its written submissions, we do not consider, in the case of each of those disclosures, that the claimant had a belief that the disclosure was in the public interest and certainly not that he had a reasonable belief that the disclosure was in the public interest. We refer to the respondent’s reasoning in its written submissions in full in this respect and do not repeat it here.[141]It follows, therefore, that none of the alleged protected disclosures relied upon by the claimant were in fact protected disclosures. The complaints of whistleblowing detriment therefore fail at the first stage.[142]Whilst that disposes of the claim, we nonetheless make findings on the various detriments alleged by the claimant. Alleged detriments[143]We take these in a chronological order, leaving the detriment relating to the failure to re-engage the claimant until the end.[144]As already indicated, we make more detailed findings of fact in relation to the individual alleged detriments alongside our conclusions on those - 21 - detriments, as those findings read more easily next to those individual conclusions. 14th November 2023 – Leilah Mason laughing at the claimant and saying “well that’s not going to happen”. [D1][145]Ms Mason denies laughing at the claimant and saying “well that’s not going to happen”.[146]The meeting on 14 November 2023 was the first time the claimant had outlined his concerns about the pension to Ms Mason. We accept that the conversation was a positive one and that Ms Mason encouraged the claimant to request a more thorough response from HR and that, as she stated, she regularly has conversations like this with freelancers. In her witness statement, Ms Mason stated that, whilst the conversation with her was a positive one, the claimant was frustrated by his previous interactions with Helen Thomas, the pensions manager, in particular because of his perception of her delay in responding to him. In her oral evidence, Ms Mason stated that the claimant was “irate” about Ms Thomas. The claimant, somewhat absurdly, suggested that Ms Mason was changing her evidence in this respect; however, she was not; she was at all times consistent that her conversation with the claimant was a positive one, and the fact that she described the claimant as being “frustrated by” his interactions with Ms Thomas or “irate” as a result of Ms Thomas’s actions is neither here or there. However, the fact that the claimant seized on this as a supposed example of inconsistency or even lying on the part of Ms Mason is symptomatic of the mindset which he has and which we described in our assessment of the reliability of his evidence. Ms Mason’s evidence in this respect was entirely consistent.[147]We prefer the evidence of Ms Mason over that of the claimant and find that what he alleged was not said. As the allegation is not been made out on its facts, it fails at the first stage.[148]Furthermore, the claimant’s complaint involved no criticism of Ms Mason and implied no negative impact on her. We therefore accept that it is inherently unlikely that, during the conversation, Ms Mason would subject the claimant to detrimental treatment because of the matters that he had raised during the same conversation. We therefore find that there was no detrimental treatment and nothing said during that conversation was done to the claimant because of any alleged protected disclosure.[149]This detriment complaint therefore fails. 20th November 2023 – Excluding the claimant from the Christmas Party, stating that it was ‘due to tax reasons’. [D2][150]Ms Mason’s email of 20 November 2023 is clear on its face that the reason for excluding freelance workers from the Christmas party was to maintain Schedule D status in line with HMRC requirements. As the claimant accepts, the - 22 - email was sent to all production team members in every live production at Thames under Schedule D.[151]First, we do not consider that this email could in any way be reasonably considered a detriment, by the claimant or by anyone else; the email is sent in order to benefit those on Schedule D, in other words to protect their tax status, rather than to subject them to a detriment. This allegation therefore fails for this reason.[152]Even more significantly, however, it was not sent because of any of the claimant’s alleged protected disclosures. It is totally implausible that Ms Mason would disinvite all Schedule D workers from the Christmas party in order to victimise the claimant for making an alleged protected disclosure. The fact that the claimant continues to pursue this allegation is, as we have noted in our findings regarding reliability of evidence, simply extraordinary. 28th November 2023 – an evasive response from Helen Thomas [D3][153]Ms Thomas provided an entirely reasonable response to the claimant’s query, as he requested. It was not unduly short and gave a succinct but full response to his query. It was certainly not evasive. It set out reasons why freelancers and employees had different pension schemes. As her response was not evasive, this allegation has not been made out on the facts and it fails at the first stage.[154]Furthermore, a reasonable worker could not consider this email to be a detriment. Therefore, as it was not a detriment, the allegation fails for this reason too.[155]Furthermore, there is absolutely no basis for suggesting that Ms Thomas wrote this email to subject the claimant to a detriment because he made an alleged protected disclosure; by contrast, she wrote this email in order to answer the question which he had asked her to answer. For this reason too, therefore, this allegation fails.[156]Furthermore, there is no evidence that Ms Thomas was aware of the particular contents of the conversation which the claimant had with Ms Mason on 14 November 2023, which was the only alleged protected disclosure which had been made by the time of Ms Thomas’ email on 28 November 2023; we therefore find that she was not aware of them. Therefore, her email could not have been because of the alleged protected disclosure. This complaint therefore fails for this 28th November 2023 – Julie Burfoot telling the claimant that he must take one month off (unpaid) at the end of the contract [D4][157]Ms Burfoot did tell the claimant that he needed to take one month off at the end of his contract in relation to BGT 17. The factual basis of this allegation is therefore established. - 23 -[158]However, the context of this was that Ms Burfoot had previously raised a contract for the claimant for BGT 17 on Schedule E terms by accident. On 11 November 2023, she asked a member of HR staff, Alex McBride, whether the contract could be reissued on Schedule D terms. Ms McBride advised that the claimant could be engaged on Schedule D terms, but advised that there should be a break after BGT 17. Ms Burfoot passed this on to the claimant on 28 November 2023. Furthermore, he expressed his gratitude to have a break between contracts (which enabled him to go on holiday, which he wished to do).[159]This was not, therefore, detrimental treatment, for two reasons. First, the reason that the advice from Ms McBride was passed on by Ms Burfoot to the claimant was in order to benefit him by preserving the Schedule D tax status which he had always previously sought to have; it was not a detriment. Secondly, the claimant did not regard it as a detriment as he expressed gratitude in relation to the break between contracts. As it was not a detriment, this allegation fails.[160]Furthermore, the reason why Ms Burfoot said this to the claimant was because she had been advised by HR that a month’s break at the end of the contract should be taken in order to contract the claimant on a Schedule D basis in accordance with HMRC guidance. It was not because the claimant made a protected disclosure. This allegation therefore fails for this reason too.[161]Furthermore, Ms Burfoot was not aware of the conversation which the claimant had with Ms Mason on 14 November 2023, which was the only alleged protected disclosure which had been made by the time of her making this statement to the claimant on 28 November 2023. Therefore, her statement could not have been because of the alleged protected disclosure. This complaint therefore fails for this reason too. 9th January 2024 – Josh Hoskins saying goodbye to the rest of the team and not to the Claimant whilst stood next to him. [D5][162]Mr Hoskins denies deliberately ignoring the claimant on 9 January 2024. Mr Hoskins was not working on the BGT production team at the time. The BGT team consisted of around 50 people. Mr Hoskins considers that he would not have extended a goodbye to the entire BGT team, or deliberately excluded the claimant had he known that he was standing next to him. Mr Hoskins considers that it is possible he said goodbye to the Blankety Blank team (which he was working on) as he was leaving that day. However, Mr Hoskins has no recollection of this incident taking place as alleged by the claimant and gave evidence that he would not have ignored the claimant on purpose. For reasons of respective reliability of evidence, we accept Mr Hoskins’ evidence.[163]We therefore find that Mr Hoskins did not deliberately ignore the claimant; that he did not say goodbye to the rest of the BGT production team; and that he did not fail to say goodbye to the claimant whilst the claimant was standing next to him. The allegation is not, therefore, made out on the facts and therefore fails at the first stage. - 24 -[164]Furthermore, even if the claimant was present and Mr Hoskins did not say goodbye to him, this was in the context of a busy office with a lot of people present and it was not done deliberately. It could not, therefore, be reasonably regarded as a detriment. As it was not a detriment, the allegation fails for this[165]Furthermore, there is no evidence that Mr Hoskins didn’t say goodbye to the claimant because of a protected disclosure. He did not have any ill will towards the claimant and there was, therefore, no motivation for him to do so.[166]Furthermore, we accept Mr Emslie-Smith’s submission that Mr Hoskins did not have sufficient knowledge of the content of the claimant’s alleged protected disclosures to have acted “because” of them. He was interviewed by Ms Mulvana via Teams on 8 December 2023; he was told that the claimant had made a complaint regarding employment status and the respondent’s contracting processes; he did not know the substance of the complaint and it was never disclosed to him; he was unaware of alleged protected disclosures 1, 3 and 4 (and the other alleged protected disclosures post-date the allegations against him).[167]We therefore find that any failure to say goodbye to the claimant was not because of a protected disclosure. This allegation therefore also fails for this reason. 11th January 2024 – Rob Grey saying “you’re not allowed candles in the office.” [D6][168]For reasons of respective reliability of relevant evidence, we accept Ms Mason’s evidence as to the likely reasons for this comment over the slanted view which the claimant has given as to the reasons, which we consider is tainted by the claimant’s tendency to read into actions motivations which they do not contain, and which we have referenced in our findings regarding respective reliability of evidence above. Furthermore, we draw no inference from the fact that Mr Grey was not at the tribunal to give evidence, as he has left the respondent’s employment.[169]In summary, the respondent’s facilities team have previously cited health and safety concerns about the presence of candles in the office, even a single candle on a birthday cake, and Ms Mason’s expectation is that Mr Grey would have acted with this in mind. Based on her own interactions with Mr Grey, she thinks that he would have approached this with the claimant in an appropriate way, and if the candle was unlit then this would have likely been a “tongue in cheek” reference to the extreme lengths the facilities team have gone to in recent years; in other words he was making a joke at the facilities team’s expense. We accept her evidence that Mr Grey and the claimant got on very well and were always friendly with one another when they crossed paths in the office. Furthermore, we accept her evidence that, as far as she is aware, Mr Grey was not aware of the fact that the claimant had raised a complaint until 15 January 2024, when he was interviewed by Ms Mulvana as part of her investigation, so he couldn’t have made this comment to the claimant as an act of retaliation. - 25 -[170]Therefore, whilst the facts of the allegation are made out, what was done was not a detriment, and this allegation fails for this reason.[171]Furthermore, the comment could not have been and was not said because of any of the claimant’s alleged protected disclosures, and fails for that 16th January 2024 – Josh Hoskins ignoring the Claimant. [D7][172]Mr Hoskins evidence was that he had no recollection of this alleged incident taking place and that he would not have ignored the claimant on purpose. Mr Hoskins had always had a good working relationship with the claimant and had no reason to have any ill will against the claimant; furthermore, Mr Hoskins had only limited knowledge of the claimant’s 4 December 2023 complaint and, although he was interviewed as part of the investigation into that complaint, there was no allegation in the complaint against him personally.[173]Furthermore, for reasons of respective reliability of evidence, we prefer Mr Hoskins’ evidence to that of the claimant and find that he did not ignore the claimant. This allegation is not, therefore, established on the facts and therefore fails.[174]In any event, for the reasons above, there is no evidence to suggest that any actions of Mr Hoskins were because of any alleged protected disclosure by the claimant. 17th January 2024 – Clare Mulvana informing the Claimant that she had not instructed anyone not to speak to him. [D8][175]In an email of 17 January 2024 to Ms Mulvana, the claimant commented that it had been a “strange week” for him, saying that he had “experienced a level of hostility from production” and wanted to check whether anyone had been instructed not to speak with him. Ms Mulvana in her email reply that day confirmed that she had not instructed anyone not to speak to him.[176]The factual basis of this allegation is therefore established. However, it could not reasonably be seen to be a detriment; Ms Mulvana was simply replying, and replying truthfully, to a query raised by the claimant. The allegation fails for this reason.[177]Furthermore, this was clearly not done because of any alleged protected disclosure; it was done because the claimant raised a query and because Ms Mulvana replied to that query. This allegation fails for this reason too. 23rd January 2024 – not upholding the Claimant’s complaint. [D9][178]David Oldfield, the respondent’s then Chief Financial Officer, was the decision-maker in relation to the claimant’s complaint. He provided a resolution to the complaint, in accordance with the respondent’s procedure, by way of detailed - 26 - written reasons following a thorough and professional investigation undertaken by Ms Mulvana. We accept Mr Emslie-Smith’s submission that a reasonable worker would not, in light of these facts, consider the outcome detrimental, and that any sense of grievance which claimant has in relation to the outcome of his complaint is unjustified. Therefore, as there was no detriment, this allegation fails.[179]Furthermore, there is no evidence to suggest that Mr Oldfield gave the outcome to the complaint which he did in order to subject the claimant to a detriment because the claimant made an alleged protected disclosure. By contrast, the outcome was a logical and understandable conclusion in the light of the evidence, following a very thorough investigation. The allegation therefore fails for this reason too. 25th January 2024 – Julie Burfoot calling the Claimant into her office and telling him off about “tone on email” and saying he should be more careful about wording of emails. [D10][180]The context of this allegation is that the Series Producer on BGT 17, Sarah Webber, contacted Ms Burfoot expressing surprise at the tone of an email sent by the claimant to Peter Cornes, the show’s Executive Producer, in which the claimant had asked for “justification” for a particular engagement. Ms Burfoot emailed the claimant, saying “Hi love, will you grab me about this before you go tonight”. She spoke to the claimant later on and suggested to him that next time he approach matters slightly differently by not using the word “justification” as it could be misinterpreted, particularly in email correspondence to senior individuals and at busy times in the production schedule. She reassured him that it wasn’t a reprimand. She suggested that in future he shouldn’t rush sending emails and instead re-read his message carefully first. The next day, the claimant responded to the email working group and said “Sorry you’re completely right, I was rushing yesterday and should have properly checked before sending an email about it, we’ll be fine to book him… Sorry again I promise not to send any more rushed emails”. Ms Burfoot replied two minutes later to the claimant to say “okay cool, Glad all is sorted”. No further action was taken.[181]The above is reflected in Ms Burfoot’s account in her witness statement. In that statement, her evidence is also that she did not “tell the claimant off” as he has alleged. We are conscious that Ms Burfoot was not at the tribunal to give evidence, but the reason why she was not here was an entirely understandable one, namely that she was due to give birth during the week of the tribunal hearing. Furthermore, her witness statement is consistent with the evidence of the other witnesses and with the contemporaneous documents, including the various emails referred to. For that reason, and because of our concerns about the reliability of the evidence of the claimant, we accept the evidence in Ms Burfoot’s statement as set out above.[182]The tone of the “Hi love, will you grab me about this before you go tonight” email is consistent with a friendly and informal chat, and inconsistent with a motivated “telling off”. We therefore accept that Ms Burfoot did not “tell the claimant off”. Furthermore, although the claimant at this tribunal suggested that - 27 - he had no choice but to respond by email as he did (as referenced above), he did not say this at the time or raise any issue with being allegedly unjustifiably told off; all we have is his email apology which is consistent with a supportive chat with Ms Burfoot in response to an issue raised by another manager and the claimant taking note of that conversation and issuing a normal apology. It is everyday workplace management and has only being blown into something far bigger than that by the claimant in these proceedings.[183]Ms Burfoot’s conduct did not, therefore, constitute a detriment, but a reasonable and supportive management conversation. This complaint therefore fails for this reason.[184]Furthermore, there is no evidence that Ms Burfoot did this because of the claimant’s alleged protected disclosures. Rather, she had this conversation because of the concern raised about the claimant’s email by Ms Webber. This complaint therefore fails for this reason too. 31st January 2024 – Paul McDonagh saying in an email that copyrights hadn’t been declared properly. [D11][185]On 31 January 2024, Mr McDonagh received an email from another individual in relation to a particular production which stated “Lots of the folders which has licences before appear to be empty”. He replied to that email to say that copyrights hadn’t been declared properly on that production. He did so because he believed that that was the case. The licensing company had not received the necessary details and payment and a freelancer whom Mr McDonagh had engaged to complete the postproduction paperwork did not know the correct details to submit this to the broadcaster for the footage which the respondent was looking to use. Mr McDonagh did not identify an individual as being responsible and did not see it as an issue or a problem. The claimant was copied in on the email as he was requested to re-save the licences for the production or let them know if he could see them.[186]We accept that a reasonable worker would not consider this ordinary workplace email, in the context set out above, to be a detriment. This complaint therefore fails for this reason.[187]Furthermore, Mr McDonagh said this because he believed it to be true and it was an appropriate response to the email which was sent to him. It was not on the grounds of any alleged protected disclosure. This complaint therefore also fails for this reason. 31st January 2024 – Paul McDonagh ignoring the Claimant when smiled at. [D12][188]Mr McDonagh has no recollection of this event, as is the case with all of the allegations of his ignoring the claimant. That is consistent with this being a “nothing incident”. Furthermore we accept his evidence that he would not have ignored the claimant on purpose, especially if the claimant smiled at him; Mr McDonagh was an open and forthcoming witness and we have no reason to - 28 - doubt him in this respect. We also accept that at this time Mr McDonagh was very busy and in back to back meetings and he, very candidly, accepts that he may have been more distracted than usual as a result.[189]We therefore find that Mr McDonagh did not ignore the claimant and certainly did not deliberately ignore the claimant. We do not, therefore consider that there was any detrimental treatment and the complaint fails for this reason too.[190]Furthermore, there is no evidence that Mr McDonagh ignored the claimant on the grounds that he had made a protected disclosure. Furthermore, although he was interviewed twice by Ms Mulvana during her investigation into the claimant’s complaint, he did not have detailed knowledge of the claimant’s complaint, and the complaint raised by the claimant was not about him. He had always had a good working relationship with the claimant and he had no motivation to treat him detrimentally.[191]The claimant has made much of the fact that Mr McDonagh candidly accepted that he was nervous about the interviews in connection with the claimant’s complaint. However, that was not because of the claimant’s complaint itself but because of some of the matters that Mr McDonagh disclosed about his own actions and decisions. We accept Mr Emslie-Smith’s submission that this is a matter properly separable from the fact of the claimant’s alleged protected disclosure. Mr McDonagh had no motivation to treat the claimant detrimentally because of any alleged protected disclosure the claimant made. We find that he did not do so. This complaint fails for this reason too. 31st January 2024 – Josh Hoskins ignoring the Claimant. [D13][192]Again, Mr Hoskins has no recollection of this incident taking place, which is unsurprising if this was another “nothing incident”. Furthermore, we accept that he would not have ignored the claimant on purpose. They worked on different shows and sat at separate banks of desks in the office at the time, so there would have been very little reason for their paths to cross or for them to communicate on a day-to-day basis at that time. The allegation is not therefore made out on the facts and fails at the first stage.[193]Furthermore, to the extent that the claimant may have felt ignored, this was not detrimental treatment as it was not deliberate and no reasonable employee could have considered that it subjected them to a detriment. This complaint fails for this reason too.[194]Again, there is no evidence of Mr Hoskins ignoring the claimant because he made an alleged protected disclosure. We reiterate our findings about the level of knowledge which Mr Hoskins had of the claimant’s complaint in this connection. This complaint therefore fails for this reason too. 31st January 2024 – Paul McDonagh ignoring the Claimant. [D14] - 29 -[195]We reiterate our conclusions in relation to the previous allegation of Mr McDonagh ignoring the claimant on 31 January 2024. In summary, Mr McDonagh did not ignore the claimant and certainly did not ignore the claimant deliberately; there was therefore no detrimental treatment; and any interaction was not because the claimant raised an alleged protected disclosure.[196]For these reasons, this complaint also fails. 1st February 2024 - Lisa Gettings not inviting the Claimant to celebrate “Charlie’s” birthday. [D15][197]Ms Gettings is as an Executive Assistant at the respondent. Whenever she is aware that someone in the office has a birthday, she tries to organise a cake and to see who is free in the office to wish the individual a happy birthday. On 1 February 2024, it was the birthday of Charlie Irwin, the Managing Director of TalkBack Thames. In accordance with what she would normally do on such occasions, Ms Gettings walked around the office to see who was available at the time to let them know if they wanted to join at that point to wish the individual a happy birthday. As usual, it was a relaxed informal gathering and everyone was welcome to join. We have no hesitation in accepting Ms Gettings’ evidence that, on this occasion, as on others, she simply did a sweep through the office to see who was around and available and, to the extent that the claimant was anywhere in the office that day, she did not exclude him, deliberately or otherwise, and he would have been entirely welcome to join had he wanted to.[198]The complaint is therefore not made out on the facts and therefore fails at the first stage.[199]Furthermore, as there was no detrimental treatment, the complaint fails for that reason too.[200]Furthermore, there is no evidence that Ms Gettings acted because of the claimant’s alleged protected disclosures. In fact, it is impossible that she did so because she did not know that the claimant had made a complaint until 22 May[201]The claimant has suggested that Ms Gettings must have known of his complaint because, on 13 December 2023, she was looped into an email chain from Ms Mason to schedule a meeting with Ms Mulvana and Ms Moore; the email chain was titled “Catch up today?” and the purpose of the meeting was stated to be discussing the timeline of the claimant’s contracts. The meeting was therefore going to be a meeting connected with Ms Mulvana’s investigation into the claimant’s complaint; however, there was no way of knowing that from the contents of the email exchange itself. Furthermore, we have no hesitation in accepting Ms Gettings’ evidence that she schedules countless meetings like this each day and that at no point did she analyse or scrutinise the reason for the meeting or infer from it that the claimant had raised a complaint; and that instead, she simply diarised a meeting for 4 PM that day. - 30 -[202]We therefore accept that Ms Gettings did not have any knowledge of the claimant’s alleged protected disclosures. She could not, therefore, have taken any action to subject the claimant to a detriment because of making alleged protected disclosures. This complaint therefore fails for this reason too. 1st February 2024 – Leilah Mason saying: “I hope you’ve got a lot of money set aside because you’re going to get a big tax bill.”; “What did you think you were going to get out of it?”; “It’s been really difficult for everyone.”; “Do you want your holiday pay or not?” [D16][203]Ms Mason’s meeting with the claimant on 1 February 2024 was a supportive step which she chose to take, arranged out of a concern to check up on the claimant following the rejection of his complaint. Ms Mason denies that she made the comments alleged. For the reasons of respective reliability of evidence, we prefer the evidence of Ms Mason over that of the claimant and find that they were not made. The facts of this complaint are not therefore established and it fails at the first stage.[204]At the meeting, there was some discussion about tax and holiday pay but Ms Mason merely told the claimant that the respondent’s approach to holiday pay in relation to freelancers was consistent with current industry norms and she asked him whether he had thought about the tax implications for him if he now took the position that he was actually an employee, having benefited from Schedule D tax treatment up to now. That however was a matter discussed simply as a concern for what was in the claimant’s own best interests. It was not detrimental treatment.[205]Furthermore, there is no evidence that Ms Mason made any such statements because the claimant made an alleged protected disclosure. Even on the claimant’s own evidence, the statements appear to be related to discussions about the claimant’s tax position and holiday pay raised in the meeting, rather than a response to his complaint itself; indeed, as she sets out in her witness statement, Ms Mason was careful not to discuss the specifics of the complaint. This complaint therefore fails for this reason too. 10 April 2024 – Leilah Mason saying: “What are you doing here?; “Why have they let you out of the edit?” [D17][206]On 10 April 2024, Ms Mason noticed that the claimant was sat in the seating area behind the reception desk on the respondent’s third floor, which is an area usually reserved for guests waiting to be greeted by the person they are visiting in the building. It was, therefore, unusual that he was there. She candidly accepts that she recalls saying words to the effect of “What are you doing here?” and “Why have they let you out of the edit?”. The factual basis of this allegation is therefore made out.[207]However, we accept Ms Mason’s evidence that the comments were said in jest to the claimant because the edit process is an extremely busy time and the edit team based themselves at an off-site facility, so it is rare to see any of them in the office during this period. We accept Ms Mason’s similar recollection that - 31 - she said similar phrases to Ms Webber when she was in the office a few weeks later. We further accept her evidence that it struck her as odd that the claimant was sat in the reception area when he had a pass to the building and a designated desk, which is the reason for her first question. However, when the claimant then explained that he was part of a Fremantle Pride Group and was meeting with them, she understood why he was sat there and she then continued with her day.[208]In this context, there was no detrimental treatment to the claimant; there is no reason to interpret these comments as expressions of displeasure at seeing him and the tone of them simply reflects the jovial and informal working relationship which Ms Mason and the claimant had. This complaint therefore fails for this reason.[209]Furthermore, there is no evidence that Ms Mason said them because the claimant had made a protected disclosure. The complaint fails for this reason too. Fail to re-engage the Claimant? [non-engagement][210]We turn now to the allegation regarding the respondent’s decision not to renew the claimant’s contract.[211]There is no dispute that the respondent did not renew that contract and the factual basis of this allegation is therefore made out. Similarly, we accept that non-renewal of the contract amounted to detrimental treatment. The question is, therefore, as to the reason why the contract was not renewed.[212]We have seen extensive evidence that, as the respondent submits, the reason for the decision not to engage the claimant on BGT 18 was the need to assign Mr Hoskins to the production in order to recover his salary from the budget.[213]The commissioning landscape over the past couple of years is the worst the industry has experienced in a long time. Many organisations have gone out of business. The respondent itself amalgamated two of its labels. Furthermore, two of its labels were closed and the respondent was forced to make all the staff in them redundant. When shows are now commissioned, the respondent has stricter financial constraints to adhere to and budgets are typically smaller. In connection with this, the respondent’s aspiration is for 100% of the salary costs for every employed member of staff to be recovered from the production budget somewhere. In connection with this, one such cost saving measure is the use of salaried employees to perform roles which, in the past, would have been carried out by freelancers. This enables the respondent to cross charge the employee salary to the show’s production budget for the period they worked on.[214]One example of this which we have seen is the decision in early 2024 not to re-engage NB as a freelancer, even though she was the respondent’s goto PPS in relation to the show in question, but instead to recover Mr McDonagh’s salary by assigning him to the production. - 32 -[215]A similar decision was made not to renew the claimant’s contract for BGT 18 but instead to recover Mr Hoskins’ salary from the production by assigning him to it.[216]We have seen certain notes from Ms Mason’s “Remarkable Tablet”. These show that Ms Mason was considering recovery of Mr Hoskins’ salary in around December 2023/January 2024 and March 2024. It is clear that a range of options were being considered. We accept that it is implausible that these notes have been prepared with a view to targeting the claimant’s role.[217]Furthermore, this reason is stated clearly in the two emails between Ms Mason and Helen Moore and between Ms Mason and Ms Burfoot on 19 April[218]Ms Burfoot then informed the claimant by telephone on 26 April 2024 that he would not be engaged on BGT 18, explaining the reason to him in precisely these terms (and both Ms Burfoot’s evidence and the claimant’s evidence are consistent about the reason given by Ms Burfoot, namely because of the need to recharge the salary of a staff member).[219]The reason put forward by the respondent is entirely credible. The respondent had a genuine need to consider cost savings in light of the challenging economic climate and had carried out other cost savings measures including redundancies in other parts of the business. There was a cogent commercial rationale for assigning employed staff to productions in order to recover their salaries. The scope of the claimant’s role had recently reduced due to the data wrangling function being outsourced to Picture Shop. The measure of requiring employed staff to assume roles previously undertaken by freelancers was not applied to the claimant’s role alone and we have seen the evidence in relation to this process being applied in relation to NB.[220]On 20 December 2023, the claimant was named in an email from Ms Burfoot to Ms Mason as the proposed PPS for BGT 18. At this stage, both Ms Burfoot and Ms Mason thought the claimant might well be involved in the production; this in itself is indicative that the claimant’s alleged protected disclosures 1 and 2 had not caused them to decide that he should not be reengaged.[221]Furthermore, Ms Mason was the sole decision maker in relation to this decision, and there is no evidence of Ms Mason deciding how to resource the role for reasons to do with the claimant’s alleged protected disclosures. We accept that the claimant relies entirely on insinuation and inferences, particular the fact that he had been engaged by the respondent, albeit on different contracts, over a number of years and the timing of the decision not to offer him a further contract. This however is not evidence of causation; it is a coincidence of timing and it is not one from which we could reasonably draw any inferences.[222]There is, with one exception, therefore no evidence whatsoever which might possibly suggest that the reason for not renewing the claimant’s contract was anything other than the reason put forward by the respondent. - 33 -[223]That exception is a WhatsApp exchange which was at page 1026 of the bundle and which the parties agree is an exchange between the respondent’s CEO, Amelia Brown, and its Managing Director, Charlie Irwin, which dates from September 2024, some five months after the decision not to renew the claimant’s contract was taken by Ms Mason. In that exchange, which appears to cover a number of different matters, there is a longer WhatsApp message from Mr Irwin to Ms Brown which, in its midst, includes the words “Josh - BGT edit (for Edwin reason and recoveries) / budgets.”.[224]The claimant submits that this message is evidence that at least part of the reason for the non-renewal of his contract was that he made protected disclosures; he maintains that the “Edwin reason” must be the fact that he made alleged protected disclosures and that, whilst recoveries may be part of the reason, the fact that he made alleged protected disclosures must also be part of it.[225]Mr Irwin was not at the tribunal. Ms Mason was asked about this email exchange by the judge but, unsurprisingly as it is part of a wider series of WhatsApp messages to which she was not party, was not able to throw any light as to what Mr Irwin meant by that.[226]However, it is unclear what “for Edwin reason” means. There is no context to the phrase. The WhatsApp messages are in a very shorthand “note” form; there is nothing amounting to a full sentence from which one might get a clearer idea of the meaning. We fully accept Mr Emslie-Smith’s submission that it would be unsafe for us to make a finding that it necessarily meant that Mr Hoskins was put in the claimant’s role because of the claimant’s alleged protected disclosures; it is just as likely to be a reference to certain functions that the claimant used to perform.[227]Furthermore, neither Mr Irwin (nor Ms Brown) were decision-makers in relation to the decision not to renew the claimant’s contract. The decision was Ms Mason’s decision alone. The judge deliberately asked Ms Mason, before taking her to the WhatsApp exchange in question, whether the decision was hers alone, whether anyone else had any input into it and whether Mr Irwin and Ms Brown were informed of the decision and, if so, when. Ms Mason confirmed that the decision was hers alone. She also confirmed that neither Mr Irwin nor Ms Brown had input into this decision. She also confirmed that, whilst she informed them that she had taken the decision, she did not inform them about it until after that decision had been taken. We have no reason to doubt that evidence and we accept it.[228]There is no evidence, and indeed it is not claimant’s case, that Mr Irwin determined to prevent the claimant from being engaged (such that the limited exception in Jhuti should apply). Ms Mason was not dependent upon Mr Irwin as the source of the “underlying facts and information for [her] decision” (the test set out in Kong). Therefore, whatever reasons or knowledge he had cannot be attributed to Ms Mason. There is no evidence whatsoever that Ms Mason took into account any “Edwin reason”, whatever that may be. The WhatsApp - 34 - exchange is dated from September 2024, five months after the decision was made. It sheds no light on Ms Mason’s mental processes.[229]The WhatsApp exchange therefore has no impact on our analysis.[230]We therefore find that the reason for the non-renewal of the claimant’s contract was the need to assign Mr Hoskins to the production in order to recover his salary from the budget, and no other. It was not because of the claimant’s alleged protected disclosures. This complaint of detriment therefore fails. Summary of detriment complaints[231]In summary, therefore, all of the complaints of detriment fail.[232]However, we also need to consider the jurisdictional issues in connection with time limits. Time limits Complaints presented out of time[233]The whistleblowing detriment complaints were brought under the second claim. That claim was presented on 11 August 2024. Early conciliation in relation to the second claim commenced on 25 July 2024 and concluded on 29 July 2024. Therefore any act or omission of alleged detriment said to have taken place prior to 26 April 2024 is prima facie out of time.[234]Although the claimant was informed by Ms Burfoot on 26 April 2024 that he would not be re-engaged, the decision not to re-engage him was made by Ms Mason. Ms Mason gave clear evidence, in response to the judge’s questions, that, whilst it was a decision which she had been mulling over for some time, she made the final decision not to re-engage the claimant in the couple of days prior to 26 April 2024, in other words either on 24 or 25 April 2024. We have no reason to doubt her evidence and we accept it.[235]That allegation of detriment was therefore presented out of time.[236]The other allegations of detriment, which all predate the decision not to renew the claimant’s contract, were all therefore also presented out of time. Reasonable practicability[237]We therefore turn to the issue of whether the time limit should be extended on the basis that it was not reasonably practicable for the claimant to have presented his complaints in time.[238]During the evidence, the claimant did not present any evidence in relation to this issue, either in his witness statement or in the documentation in the bundle. However, when he subsequently presented his written submissions to the tribunal, he also presented a pack of email correspondence between him - 35 - and ACAS. The claimant submitted that he was advised by ACAS that he needed to bring an “unfair dismissal” claim within three months less one day from the “employment termination date” and that he relied on that advice and that that was why it was not reasonably practicable for him to have presented his claim within the tribunal time limit.[239]Mr Emslie-Smith’s primary submission is that this evidence, presented when it was, is inadmissible. We accept that submission. The claimant could have presented this evidence at any stage, even at the start of the trial. The claimant is an intelligent and organised individual who could very easily have done this. However, he did not present it until after the evidence was completed. There has, therefore, been no opportunity for him to be cross-examined on this evidence. We accept therefore that it is inadmissible.[240]In the light of that, the claimant has put forward no reason as to why it was not reasonably practicable to present the claim within the tribunal time limit, nor have we identified any such reason in any of the evidence before us; consequently time is not extended and the tribunal does not have jurisdiction to hear any of the complaints of whistleblowing detriment brought and they are all struck out.[241]However, we also consider the position if we had decided that this evidence was, at the late stage that it was presented, nonetheless admissible.[242]ACAS are not legal advisers; rather they are conciliators. The claimant is an intelligent individual who has clearly done considerable amounts of research on the law and has got to grips to a high level of detail with very complex concepts of employment law in relation to protected disclosures. He therefore either knows or should have known that ACAS are not legal advisers and, to the extent that he had any questions about time limits, he could or should have established what the correct position was either through his own research or by choosing to get legal advice. However it appears that he did not.[243]All that the ACAS email states is that the “unfair dismissal claim” needs to be “registered with the tribunal within three months less one day from employment termination date”; it is a general statement of the law - in relation to unfair dismissal. However, the complaints before us are not complaints of unfair dismissal (nor can ACAS be expected to know from high level conversations in the course of conciliation the finer details of the various different types of complaint the claimant was proposing to bring). ACAS was certainly not advising on whistleblowing detriment complaints; the only statements by ACAS which could possibly be interpreted as advice related to unfair dismissal.[244]The claimant did bring an unfair dismissal claim, alleging that the date of his dismissal was 7 June 2024, which was the date his contract with the respondent came to an end. However, that claim fell away following EJ Adkins’ decision that the claimant was not employed by the respondent. The claimant maintains that he could not have known about the time limit position until that point. However we do not accept this. It was clear from at least as early as the consideration of the claimant’s grievance complaint by the respondent that the - 36 - respondent’s position was that the claimant was not an employee. The claimant could and should have established what the position was on time limits in relation to detriment claims at an earlier stage such that he could have put those claims in on time. Furthermore, it is clear from the email correspondence with ACAS that, at least as early as 1 May 2024, he was considering when he should put in the second claim; had he submitted it at that point, the claim would have been in time, at least in relation to the alleged detriment about the non-renewal of his contract.[245]As noted, in Porter v Bandridge Ltd 1978 ICR 943, the Court of Appeal ruled that the correct test as to whether ignorance of the law means that it was not reasonably practicable to have presented the claim on time is not whether the claimant knew of his rights but whether he ought to have known of them. In the case of an intelligent, organised claimant, albeit a litigant in person, who had already brought one employment tribunal claim by that stage and who had clearly been able to research the law on complex employment law issues, we consider that he certainly ought to have known of the rights.[246]Furthermore, where, as is the case here, the claimant was generally aware of his employment rights, ignorance of the time limit will rarely be acceptable as a reason for delay. This is because a claimant who is aware of his or her rights will generally be taken to have been put on enquiry as to the time limit. Indeed in Trevelyans (Birmingham) Ltd V Norton 1991 ICR 488, EAT, Mr Justice Wood said that, when a claimant knows of his or her right to complain of (in that case) unfair dismissal, he or she is under an obligation to seek information and advice about how to enforce that right.[247]For all these reasons, even if we had considered that the claimant’s late disclosure of his correspondence with ACAS was admissible, we would still have concluded that the claimant has not shown that that was a reason why it was not reasonably practicable for him to have presented his whistleblowing detriment complaints within the tribunal time limit.[248]Furthermore, we have not identified any other reason in any of the evidence before us as to why it was not reasonably practicable for him to have presented his whistleblowing detriment complaints within the tribunal time limit, nor has any other reason been suggested by the claimant.[249]Consequently, it was reasonably practicable for the claimant to have presented his whistleblowing detriment complaints on time. The tribunal does not therefore have jurisdiction to hear those complaints and they are struck out.[250]If they had not been struck out, they would have failed for the reasons set out above. Written reasons[251]After the judge had delivered the reasons for the tribunal’s decision orally, he explained that he would, in a moment, ask the parties whether they wanted the written reasons for the decision and that they would be able to - 37 - request them either now at the hearing or within 14 days of the judgment being[252]Before doing so, the judge explained, for the claimant’s benefit, two things. First, he said that, if a party wished to appeal the tribunal’s decision, that party would need the written reasons in order to do so, although he stated that an appeal could only be founded if there was an error of law by the tribunal or if its decision on the facts was perverse; there were no grounds for appeal if a party simply disagreed with the factual findings that the tribunal had made. Secondly, he explained that, if written reasons were produced, they would be published online on the tribunal’s website and that the tribunal had no discretion as to whether or not to do this. He added that the reasons were searchable by name and that the tribunal was aware that potential future employers might carry out such a search. The judge made these remarks because he was concerned about whether it was in the claimant’s own best interests for the written reasons to be produced and consequently published online.
The judge then asked the parties whether they wanted the written reasons.
[254]The claimant said that he did not want the written reasons.[255]Mr Emslie-Smith, having taken instructions from his client, said that the respondent would like the written reasons.[256]Accordingly, these written reasons have been produced. Employment Judge Baty Dated: 17 December 202522 December 2025 ………...................................................................... ………...................................................................... - 38 - ANNEX AGREED LIST OF ISSUES Terminology and Abbreviations “The First Claim” refers to claim 2201953/2024, brought by way of an ET1 received by the Tribunal on 19th February 2024. “The Second Claim” refers to claim 6008262/2024, brought by way of an ET1 received by the Tribunal on 11th August 2024. “FTE Regs” refers to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
The law
[1]Protected Disclosure (Employment Rights Act section 43A and 43B)1.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:1.1.1 What did the Claimant say or write? When? To whom? The disclosures relied on by the Claimant are set out in appendix 1 to this list of issues.1.1.2 Did the Claimant disclose information?1.1.3 Did the Claimant believe the disclosure of information was made in the public interest?1.1.4 Was that belief reasonable?1.1.5 Did the Claimant believe that it tended to show that:1.1.5.1 a criminal offence had been, was being or was likely to be committed; - 39 -1.1.5.2 a person had failed, was failing or was likely to fail to comply with any legal obligation;1.1.5.3 the health and safety of any individual has been, is being or is likely to be endangered;1.1.5.4 any matter had been, is being, or is likely to be, deliberately concealed.1.1.6 Was that belief reasonable?1.2 If the claimant made a qualifying disclosure, was it a protected disclosure because it was made to the claimant’s employer?[2]Detriment (Employment Rights Act 1996 section 47B)2.1 Did the Respondent do the following things:2.1.1 Fail to re-engage the Claimant? [non-engagement]2.1.214th November 2023 – Leilah Mason laughing at the claimant and saying “well that’s not going to happen”. [D1]2.1.320th November 2023 – Excluding the claimant from the Christmas Party, stating that it was ‘due to tax reasons’. [D2]2.1.428th November 2023 – an evasive response from Helen Thomas [D3]2.1.528th November 2023 – Julie Burfoot telling the claimant that he must take one month off (unpaid) at the end of the contract [D4]2.1.69th January 2024 – Josh Hoskins saying goodbye to the rest of the team and not to the Claimant whilst stood next to him. [D5] - 40 -2.1.711th January 2024 – Rob Grey saying “you’re not allowed candles in the office.” [D6]2.1.816th January 2024 – Josh Hoskins ignoring the Claimant. [D7]2.1.917th January 2024 – Clare Mulvana informing the Claimant that she had not instructed anyone not to speak to him. [D8]2.1.1023rd January 2024 – not upholding the Claimant’s complaint. [D9]2.1.1125th January 2024 – Julie Burfoot calling the Claimant into her office and telling him off about “tone on email” and saying he should be more careful about wording of emails. [D10]2.1.1231st January 2024 – Paul McDonagh saying in an email that copyrights hadn’t been declared properly. [D11]2.1.1331st January 2024 – Paul McDonagh ignoring the Claimant when smiled at. [D12]2.1.1431st January 2024 – Josh Hoskins ignoring the Claimant. [D13]2.1.1531st January 2024 – Paul McDonagh ignoring the Claimant. [D14]2.1.161st February 2024 - Lisa Gettings not inviting the Claimant to celebrate “Charlie’s” birthday. [D15]2.1.171st February 2024 – Leilah Mason saying:2.1.17.1 “I hope you’ve got a lot of money set aside because you’re going to get a big tax bill.”2.1.17.2 “What did you think you were going to get out of it?”2.1.17.3 “It’s been really difficult for everyone.”2.1.17.4 “Do you want your holiday pay or not?” [D16] - 41 -2.1.1810 April 2024 – Leilah Mason saying:2.1.18.1 “What are you doing here?2.1.18.2 “Why have they let you out of the edit?” [D17]2.2 By doing so, did it subject the Claimant to a detriment?2.3 If so, was it done on the ground that they made a protected disclosure?[3]Time Limits 3.1 Were the detriment claims made within the time limit in s.48(3) Employment Rights Act 1996? (with the extension for ACAS conciliation)? The Tribunal will decide:3.1.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?3.1.2 If not, was there conduct extending over a period?3.1.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?3.1.4 If not, was it not reasonably practicable to bring the claims before the end of that period?3.1.5 If so, is it reasonable for the Tribunal extend time, and for how long?[4]Remedy for Protected Disclosure Detriment (Employment Rights Act 1996 section 49)4.1 What financial losses has the detrimental treatment caused the claimant?4.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? - 42 -4.3 If not, for what period of loss should the claimant be compensated?4.4 What injury to feelings has the detrimental treatment caused the claimant and how much compensation should be awarded for that?4.5 Has the detrimental treatment caused the claimant personal injury and how much compensation should be awarded for that?4.6 Is it just and equitable to award the claimant other compensation?4.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?4.8 Did the respondent or the claimant unreasonably fail to comply with it?4.9 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?4.10 Did the claimant cause or contribute to the detrimental treatment by their own actions and if so would it be just and equitable to reduce the claimant’s compensation? By what proportion?4.11 Was the protected disclosure made in good faith?4.12 If not, is it just and equitable to reduce the claimant’s compensation? By what proportion, up to 25%? - 43 - Appendix 1: Protected Disclosures PD1 – Verbal disclosures at the Claimant’s meeting of 14th November 2023 with Leilah Mason. The Claimant used words to the effect of “there are laws against this” in referencing the pension inequality. The Claimant specifically mentioned the FTE Regs during the conversation. The Claimant said to Leilah he wanted the pension he had missed out on by not having his permanent status recognised. PD2 – Written disclosures in the Claimant’s complaint letter of 4th December 2023: The … contracts database apparently also flags when someone has accrued a continuous service period, and it alerts management to the need to impose a contract break, to maintain tax compliance, and to prevent employment rights from accruing. Similar issues are explored in the case of Ms M Gorman v Terence Paul (Manchester) LTD: 2410722/2019 where a “contract for services” was used to mask an employment scenario. A new starter on a permanent contract would get access to the more generous pension scheme from Month 1 of their employment, this creates an unacceptable unfairness. It is also fair to say that the lack of employment stability caused by being kept on repeated fixed-term contracts, all containing a cliff-edge one-week notice period, for 12+ years, has compounded my anxiety and depression. In line with the policy of the parent-group RTL, I would have expected pension policy to be regularly reviewed for its compatibility with local laws, however it seems in September 2023, there was no assessment in this regard and no - 44 - reasoning available at this time. I chased three times for a response to get the reasoning for the difference in treatment. I received a response some 7 weeks later on the 9th November 2023. I felt this reasoning did not fulfil the requirements of being an “objective justification” as required by the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. In fact, it seems to state that the terms of the contract are the very reason for the Less Favourable Treatment. I also noted that there was a Permanent Comparator in my case, Andrea Gordon, however no response was given in this regard. The outcome which I am seeking is to receive a contract that matches up to the reality of the working situation, and to recognise that this permanent arrangement has been in place since June 2018. This contract should clarify that I have been a permanent employee since June 2018 and provide me with a written statement of permanent terms of contract. PD3 - Verbal disclosures in the Teams Video Call with Clare Mulvana on 7th December 2023: PD3A - “But there's issues around, um, less favourable treatment. But obviously, we've talked about that Law might not apply to me. And as as one of the responses that's been given is, um uh, that I have no protection under that less favourable treatment rules because the company sees me as being, um a self-employed contractor, which obviously I disagree with that, um, so, yeah, um, contract for services is what I've worked under since June 2018, and the the time amounts to five years and five months.” PD3B - “We got to a point where it was, like, less favourable treatment doesn’t apply to me. The law doesn't work for me because … you don't see me as an employee." PD3C “I've always noted down anxiety on those forms, Um, but that this is a long standing thing that happened when I was a teenager. That's been going on. So it's - 45 - not like the job has caused issues with anxiety and depression. But what's scary in day to day life is knowing that you're on a one week, Um, a one week notice period essentially this time next week could be out of a job, and I have no rights and no control over despite working here for a very long time, I have no control over, um, anything.” PD3D I'm fine, like, Yeah, I'm on antidepressants. Speak to my GP. I've got, um, therapy that. I can access whenever I want. So, like, I'm absolutely fine in terms of, like, managing it and looking after it. PD4 - Verbal disclosures in the Teams Video Call with Clare Mulvana on 8th January I do think that there's been an oversight on the employment law side of things. PD5 - Verbal disclosures in the Teams Video Call with David Oldfield on 17th January PD5A - I mean, when you know, at the time when I went to self employment and everyone was telling me about the benefits of self employment and the tax situation, and it will be this fantastic situation for you that you'll save money on tax if you go down the self employed route, um, has not turned out to be true because, as we've seen in the messages, these breaks have been imposed. And I've described in my complaint after this current BGT contract in 2024 I've been told I then have to have another month off unpaid, and it's all to maintain this tax status and actually which, um, yeah, I've been pushing to maintain that. But out of necessity. PD5B - But obviously in September, I found out about this pension, and that's really when I thought, Hang on. This is not right. Like, um, …. this isn't the best deal… I’ve given away the, uh, the employment rights by going self employed, which actually I think I do have. - 46 - PD6 - Verbal disclosures at the Claimant’s meeting of 1st February 2024 with Leilah Mason: It is the established norm that self employed people don’t get pension or holiday pay. Why are you paying holiday pay to individuals you are saying are self employed? PD7 – Written disclosures in the Particulars of the First Claim, sent to the Respondent on 19th Febraury 2024 PD7A - Paragraph 5 b iii: The Employer has significant influence over which scheme is used for payment. My evidence shows that the Respondent will ‘flip flop’ an Employee between the PAYE system and a self-employed arrangement to circumvent Employment Law. PD7B - Paragraph 5 b iv: In the written response, the Respondent claims that excessive use of Fixed Term Contracts is Objectively Justified due to business and commercial reasons. No further detail is provided by the Respondent, and there is no mention of what the specific “legitimate aim” might be. PD7C – Paragraph 6 a vi: An Objective Justification is not provided by the Respondent. HR explain that in their opinion, different contract types result in different benefit packages. There is no further detail provided. … Additionally on this date, HR also say to me that the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations do not apply to me. PD7D – Paragraph 6 b i: I … raised the issue of the Respondent’s use of a contracts database to prevent employment rights from accruing. … While the generally accepted norm is that those paid under a self-employed arrangement shall not be entitled to Holiday Pay, the Respondent goes against this. Therefore, the Respondent could be seen to be persuading Employees to go into a sham self employment arrangement, by giving irregular financial incentives. … In terms of the contracts database, I have evidence to show that managers were repeatedly receiving red flags from the database about my length of continuous service… I - 47 - had been told on numerous occasions that I had been working for the Respondent "for too long”. Managers were under instructions from HR to break my continuous service. This created an environment of tension, where managers claimed to be on my side, and they would agree to doctor the contracts database to create the appearance of contract breaks to satisfy the HR department, but in reality, I could continue working for the managers. PD7E – Paragraph 6 b ii: The Respondent states that the intention of paying Holiday Pay at the end of each Fixed Term Contract has been to cover the enforced unpaid non-working periods. PD7F – Paragraph 6 c ii: The written response from the Respondent’s UK Chief Financial Officer dismisses … concern by denying that a Permanent Comparator exists within the entire business. PD7G – Paragraph 6 d ii: Hostility was flagged to the HR department. No action was taken. The lack of action contravenes the Bullying and Harassment Policy. PD7H – Paragraph 10: Despite being aware of my ongoing mental health conditions, nothing has been done to stop this retaliation. I am distressed by the way in which the Respondent has dealt with my concerns so far. PD8 – Written disclosures in the Application to Amend, sent to the Respondent on 24th April 2024: The omission of any response in the Grounds of Resistance to the allegation of the making of irregular payments of holiday pay and pension contributions. The Respondent has revealed that they are relying on their own interpretation of two pieces of HMRC guidance, to justify their behaviour of undermining legislation. The legislation in question is the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The Respondent’s interpretation and application of the HMRC guidance, has the effect of cheating the public revenue, in addition to the negative impacts on employment rights for - 48 - those engaged by the Respondent. The Respondent is a “large organisation” and as such, it must not fail to prevent fraud, enforced by the Economic Crime and Corporate Transparency Act 2023.• I described the Respondent’s methods, in their circumvention of employment law, relating specifically to the Regulations designed to prevent abuse of Fixed-term contracts.• I described how my experiences are shared by many other individuals working for the Respondent.• I described how the discrimination around pension arrangements applies to whole groups of employees.• I described concerns related to irregular payments of holiday pay and pension contributions being made to individuals that the Respondent chooses to recognise as being self employed.• I also described the general use of “sham self employment”, relating not only to myself but to others. Whilst I suggested this in my ET1, I would like to make the point absolutely clear now, that it is not just me affected by the Respondent’s actions.• I also mentioned the impacts on my mental health from living under this control for a number of years. - 49 -