Mr C Barnett v Lift and Load London Ltd and S Towey: 2213509/2023 and 2216645/2023
EMPLOYMENT TRIBUNALS
Case No 2213509/2023, 2216645/2023
Between
Mr C BarnettClaimantLift and Load London Ltd and S ToweyRespondent
Before
Employment Judge FordeMr Ross (instructed by Counsel) for claimantDate 22 August 2025
JUDGMENT
The judgment of the Tribunal is as follows: Unsuccessful strike out[1]The application to strike out on the basis that the claim has been presented outside of the statutory time limits relevant to the issues in the claim is refused. The Tribunal will decide at the final hearing whether or not the claim was presented within the applicable time limit.[2]The application to strike out on the basis that the claimant’s complaints are criminal complaints is refused on the basis that the allegations made by the claimant are ones for a factual evaluation by the tribunal in terms of their relevance to the issues to be determined in the claim.[3]The application to strike out on the basis that the claim did not enjoy reasonable prospects of success under Rule 37(1)(a) of the 2013 rules was refused that it appeared to the tribunal that it was a premature one to make at a time in the proceedings where there had not been a proper analysis of the pleadings and relevant core documents. Claim numbers: 2213509/2023 and 2216645/2023 Deposit Order Application[4]The application for a deposit order is refused because it appeared to the tribunal that it was a premature one to make at a time in the proceedings where there had not been a proper analysis of the pleadings and relevant core documents.
REASONS
This hearing(1) The final hearing, which was listed for five days starting on 13 May 2025, was postponed and this public preliminary hearing was listed instead to deal principally with R2’s application to strike out the claim brought against him. In the circumstances in which I agreed to the claimant’s application to stay the claim against R1 and reserved my decision on R2’s strike out application, no other orders were made. Stay of proceedings against R1(2) R1 has been dissolved and the claim brought against it cannot currently proceed. The claimant has applied to have R1 restored to the Register of Companies and at the date of this hearing that application remained extant. I agreed that it was Case Nos: 2213509/2023 & 2216645/2023 2 of 10 necessary in the interests of justice to stay the claim brought against R1 pending the outcome of the claimant’s application.(3) It was agreed that in the circumstances in which I refused R2’s strike out application, the claim against R2 would also be stayed. The application to strike out the claim against R2 (2) No evidence was heard. (3) There was a bundle of 577 pages which had been prepared for the final hearing. I considered the pages to which I was referred.(4) I also considered the parties’ written and oral submissions and the legal authorities I was referred to (the Claimant produced an authorities bundle of 140 pages). I should record that the parties were ordered, and agreed, to send an agreed list of authorities within 7 days of this hearing, however, if this order has been complied with, this list has not been forwarded to me. Relevant legal principles on strike out(5) The power to strike out a claim on the ground that it has no reasonable prospect of success may be exercised only in rare circumstances, Teeside Public Transport Company Limited (T/a Travel Dundee) v Riley [2012] CSIH 46 and Balls v Downham Market High School & College [2011] IRLR 217, EAT. In that case Lady Smith said: “The Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word ‘no’ because it shows that the test is not whether the Claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospect”.(6) In White v HC-Oval Ltd [2022] EAT 56[2022] IRLR 576 Eady P (as she then was) emphasised that strike out is for the clearest of cases where the outcome is plain and obvious, and reiterating the language used by Lord Steyn in Anyanwu and anor v South Bank Student Union and anor [2001] ICR 391). Procedural history(7) The claimant has brought two claims. In his first claim, presented on 11 August 2023, he brought several complaints against R1 only, including one for automatic unfair dismissal for asserting his statutory right to holiday pay, under section 104 of the Employment Rights Act 1996 (“ERA”). In his second claim, presented on 21 November 2023, the claimant brought the additional complaint, against both respondents, of detriment under section 45A ERA. Case Nos: 2213509/2023 & 2216645/2023 3 of 10(8) R2 was, at the material time, the sole director of R1.(9) These claims were consolidated at a preliminary hearing on 11 December 2023 when EJ Singh granted some but not all the claimant’s amendment application, which included the additional complaint, against R1, of automatic unfair dismissal under section 101A ERA. Notably, in relation to the consolidation decision, EJ Singh observed that “the only claims that could be pursued against him [R2] are the s45A claims that are in the second claim”, as will be seen, this is the nub of R2’s strike out application.(10) At a second preliminary hearing on 28 June 2024, EJ Webster granted the respondents’ application for an extension of time to present their response to the second claim and ordered the parties to agree on a list of issues.(11) There is an agreed list of issues (“LOI”) [78-82]. Further work shall be needed in due course to finalise the LOI. Detriments are dealt with at paragraphs 19-27 of this document. The specific allegations of detriment are not set out in the LOI, instead reference is made to the relevant paragraphs of the second claim (9-10, 13-17, 19-24). Nor does the LOI identify which limbs of section 45A are relied on. At this hearing, Ms Ramage-Hayes, confirmed that the claimant relies on section 45A(1)(b), (e) and / or (f).(12) At a third preliminary hearing on 16 August 2024, EJ Forde refused the respondents’ application for strike out / deposit orders. It is agreed that that application was wholly distinct from the application I was required to decide.(13) According to the Companies House website, R1 was dissolved on 12 November 2024. The strike out application(14) R2 applied on 17 February 2025 [518-524] to strike out the detriment claim brought against him under section 45A ERA on the ground that it has no reasonable prospect of success, for the purposes of rule 38(1)(a) of the Employment Tribunal Rules of Procedure 2024. Put simply, the basis of this application is that a section 45A ERA claim can only be brought against an employer and cannot also be brought against an individual i.e. co-worker.(15) The claimant replied on 5 March 2025 [530-536] to object to this application. In requesting that this was dealt with as a preliminary issue at the final hearing, the claimant noted that such a step had been anticipated when, during the first hearing, the respondent had objected to the second claim being brought against R2 as an individual, although the same had not been recorded by EJ Singh.(16) R2 then responded to the claimant’s objections on 3 April 2025 [541-542].(17) The parties were then ordered to confirm how they wished this application to be dealt with and ultimately agreed that the final hearing should be postponed and converted to a one-day preliminary hearing to decide R2’s application. Case Nos: 2213509/2023 & 2216645/2023 4 of 10(18) I now turn to the parties’ submissions.(19) It is agreed that the issue at stake is purely one of law not fact i.e. whether there is no reasonable prospect of the claimant establishing that a claim for detriment under section 45A ERA can be brought against an individual in their personal capacity, in this case the sole director of the employer.(20) As will be seen, the claimant submits that he has standing to bring this claim against R2 because it is necessary to construe section 45A to widen the ambit of liability to include a co-worker to give effect to EU law, by reference to the more favourable position applicable to section 47B.(21) R2 relies on the fact that section 47B ERA was amended (via the insertion of subsections (1A)-(1E)) by the Enterprise and Regulatory Reform Act 2013 (“ERRA”). Materially, subsection (1A) confers liability to other workers employed by the same employer and agents of the employer.(22) R2 also relies on the Court of Appeal decision in Timis v Osipov [2019] IRLR 52, in which Underhill LJ explained (at para 30) the essential effect of the changes made by ERRA (emphasis added as underlined): “…(1) The starting point is that individual co-workers are, by sub-s (1A), made personally liable for acts of whistleblowing detriment done by them. Although the principal purpose of the legislation may have been to provide a route to vicarious liability on the part of the employer, in order to fill the lacuna identified in Fecitt [Fecitt v NHS Manchester [2011] EWCA Civ 1990[2012] IRLR 64], the effect nevertheless is that the individual is rendered liable in his or own right, irrespective of the liability of the employer…the position also under the Equality Act 2010 and its predecessors…But for co-workers to be rendered personally liable is unique not only as regards Part V but more generally as regards the protections afforded by the 1996 Act…”(23) R2 submits that in extending liability to co-workers under section 47B and not to any of the other causes of action within Part V ERA, Parliament was distinguishing claims for public disclosure detriment on public policy grounds.(24) The claimant accepts that applying a literal interpretation to the meaning and effect of section 45A, he has no standing to bring a claim against R2. However, as foreshadowed above, the claimant submits that applying general principles of EU law to section 45A, specifically the principles of equivalence and effectiveness, it is necessary to construe a wider ambit of liability to include co- workers. The claimant’s submissions proceed as follows.(25)The Working Time Regulations 1998 (“WTR”) were enacted to implement the provisions of the Working Time Directive 93/104/EC which was subsequently amended by Directive 2003/88/EC (“WTD”). This Directive lays down minimum health and safety requirements for the organisation of working time, including annual leave (as set out under Article 7). Section 45A was inserted into the ERA, by regulation 31 WTR. Thus, it is submitted, the purpose of regulation 31 was to give effect to the WTD by ensuring that “enforcement arrangements are “effective, proportionate and dissuasive” (as per the House of Commons Case Nos: 2213509/2023 & 2216645/2023 5 of 10 Research Paper 98/82, section J ‘Enforcement’). The WTR and, by implication, section 45A ERA were therefore retained EU law under section 2 of the European Union (Withdrawal) Act 2018 (“EUWA”). This position was preserved until the end of 2023 i.e. immediately prior to the implementation of the Retained EU Law (Revocation and Reform) Act 2023 (“REULA”) which came into effect on 1 January 2024.(26) Consequently, section 6(3) EUWA which provides that any question as to the validity, meaning or effect of any relevant retained EU law is to be decided in accordance with any retained case law and any retained general principles of EU law, as they had effect at 11pm on 31 December 2020 (section 6(7) EUWA), is said to be applicable to the section 45A claim brought against R2 (which was presented in November 2023). These retained general principles of EU law include the requirement to seek conforming interpretation under the Marleasing principle (Marleasing SA v La Commercial Internacional de Alimentacion SA [1992] 1 CMLR 305), applying the approach set out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, as approved by the EAT in EBR Attridge Law LLP and anor v Coleman [2010] ICR 242).(27) The claimant relies, in particular, on the EU principles of equivalence and effectiveness and cited the decision of Levez v Jennings Case C-326/96, in which the ECJ provided the following summary and guidance: “18. The first point to note is that, according to established case-law, in the absence of Community rules governing the matter it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, however, that such rules are not less favourable than those governing similar domestic actions (the principle of equivalence) and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness)… 41. The principle of equivalence requires that the rule at issue be applied without distinction, whether the infringement alleged is of Community law or national law, where the purpose and cause of action are similar… 42. However, that principle is not to be interpreted as requiring Member States to extend their most favourable rules to all actions brought, like the main action in the present case, in the field of employment law… 43. In order to determine, whether the principle of equivalence has been complied with in the present case, the national court – which alone has direct knowledge of the procedural rules governing actions in the field of employment law – must consider both the purpose and essential characteristics of allegedly domestic actions… 44. Furthermore, whenever it falls to be determined whether a procedural rule of national law is less favourable than those governing similar domestic actions, the national court must take into account the role played by that provision in the procedure as a whole…” Case Nos: 2213509/2023 & 2216645/2023 6 of 10(28) As to first limb of the test for equivalence, the claimant submits that claims brought under section 45A and 47B ERA are sufficiently similar: they are both statutory torts, situated within Part V ERA, they are both claims that have been compared to discrimination and victimisation claims, they are both enforced through section 48 ERA in respect of which the same compensation regime is applicable; and here, the claimant relies on the observation of Soole J (at para 58) in South Yorkshire Fire and Rescue Service v Marshall and Ors UKEAT/0151/17/DM that “I see no principled basis to distinguish between the individual rights conferred by Part V for the purpose of awards for injury to feelings. In each case breach of the right is a statutory tort and the claim is akin to discrimination and victimisation.”(29) Countering that, R2 submits that these provisions are distinguished by the public interest element applicable to section 47B claims with the consequence that this is the only claim within Part V ERA in which Parliament had conferred liability on a co-worker, it is said on public policy grounds. In respect of Marshall, R2 says that it does not assist the claimant because that case was concerned with the question of remedy and specifically the availability of an injury to feelings award, and it has no relevance to the issue of the ambit of liability.(30) As to the second limb i.e. less favourable treatment, R2 conceded that were the principle of equivalence to apply, the difference in the ambit of liability between sections 45A and 47B was capable of amounting to less favourable treatment.(31) In respect of the principle of effectiveness, the claimant submits that limiting liability under section 45A to employers not only amounts to less favourable treatment when compared with section 47B, it renders the implementation of the WTD ineffective, and in the particular circumstances of this case, in which it is alleged that R2 as the sole director of R1 took action to remove it from the Register to deliberately evade liability in these proceedings, makes it excessively difficult or virtually impossible to exercise his EU-derived rights under section 45A. R2 did not accept this proposition and submitted that the issue for the claimant was that R1 had been struck off the Register and the claimant would not be deprived of a remedy if R1 was restored to the Register. Analysis and conclusion(32) I remind myself that strike out is a draconian sanction and one which should only be used in plain and obvious cases. There is of necessity a high threshold. I must be satisfied that there is no reasonable prospect that the claimant will be able to establish that R2, as a co-worker, is liable for a claim for detriment under section 45A ERA. I am not required to make a substantive finding on this issue.(33) At the date when the claimant presented the second claim, when the post-Brexit transitional arrangements remained in force, those parts of the WTR which gave or sought to give effect to the WTD were part of the body of retained EU law (now “assimilated law” by virtue of section 5 REULA) and more specifically EU-derived domestic legislation, for the purposes of section 2(1) EUWA. It therefore follows that pursuant to section 6(3) EUWA any question as to the validity, meaning or Case Nos: 2213509/2023 & 2216645/2023 7 of 10 effect of any relevant provision of the WTR is to be decided in accordance with any retained case law and any retained general principles of EU law (as they had effect at 11pm on 31 December 2020). This includes the principles of equivalence and effectiveness.(34) The first issue to consider is therefore whether section 45A ERA is, or rather was, retained EU law in that it gave or sought to give effect to the WTD.(35) It is first necessary to return to the relevant provisions of Directive 2003/88/EC. These are as follows (emphasis added): Article 1 Purpose and scope[1]This Directive lays down minimum safety and health requirements for the organisation of working time.[2]This Directive applies to:(a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and(b) certain aspects of night work, shift work and patterns of work. … Article 7 Annual leave[1]Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.[2]The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated. … Article 15 More favourable provisions This Directive shall not affect Member States' right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers. … Article 22 Miscellaneous provisions 1. A Member State shall have the option not to apply Article 6 [maximum weekly working time], while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that: Case Nos: 2213509/2023 & 2216645/2023 8 of 10(a) no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in Article 16(b), unless he has first obtained the worker's agreement to perform such work;(b) no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform such work;(c) the employer keeps up-to-date records of all workers who carry out such work;(d) the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours;(e) the employer provides the competent authorities at their request with information on cases in which agreement has been given by workers to perform work exceeding 48 hours over a period of seven days, calculated as an average for the reference period referred to in Article 16(b). (36) These provisions therefore lay down minimum health and safety requirements for the organisation of working time (Article 1). In respect of the right to annual leave, they are limited to a minimum entitlement to four weeks paid annual leave which cannot be replaced with a payment in lieu save for where the employment has come to an end (Article 7). Insofar as the Directive places an obligation on member states to safeguard a worker from detrimental treatment by reference to these provisions this is limited to the circumstances in which a worker refuses to agree to work more than the maximum weekly working time (Article 22). Finally, underlining that these are minimum requirements, the Directive does not affect the rights of member states to legislate for more favourable provisions, including to protect the health and safety of workers (Article 15). (37) It is also necessary to return to the House of Commons Research Paper 98/82 and particularly to section J ‘Enforcement’ which I recite in full (with emphasis added): “The Directive does not specify how its provisions should be enforced, but EC case law has established that proper implementation requires that enforcement arrangements are "effective, proportionate and dissuasive". Infringements must be "penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of similar nature and importance". The Conservative Government did not accept that working time was a health and safety matter, so their consultative document proposed that rights under the Directive should be enforced entirely by individual application to employment tribunals. However, the Labour Government agrees that long hours of work can be detrimental to health and safety and has involved the health and safety authorities in enforcement. Part IV of the Regulations deals with enforcement. Briefly, it provides that entitlements (to daily rest periods, daily rest breaks, weekly rest periods and paid annual leave) should be enforced by individual application to employment tribunals. Limits (on the length of the working week and night work) should be enforced in the same way as current health and safety legislation, by Health and Safety Executive inspectors or local authority Environmental Health Officers. If an employment tribunal finds that a worker has been denied an entitlement, it must make a declaration to that effect and may order the employer to pay Case Nos: 2213509/2023 & 2216645/2023 9 of 10 compensation to the worker. The amount of compensation “shall be such as the tribunal considers just and equitable in all the circumstances” [Regulation 30]. Workers are also given the right not to suffer detriment for refusing to forego an entitlement conferred by the Regulations or to comply with a requirement imposed in contravention of the Regulations [Regulation 31]. Dismissal for such a refusal would be automatically unfair [Regulation 32]. The Health and Safety authorities have their normal range of remedies for enforcing health and safety legislation by way of inspection, prohibition and improvement notices and, ultimately, criminal prosecution by the appropriate officers of the enforcing authority. [Regulations 28 and 29].” (38) Reading this part of the Research Paper together with the relevant provisions of the WTD, I am not persuaded that there is no reasonable prospect of the claimant being able to show that section 45A ERA gives effect to the WTD, including Article[7]As is clear from the provisions of the WTR, the enforcement of the right to paid annual leave is set out in regulation 30, by means of a claim to the tribunal that an employer has refused to permit the worker to exercise their right to paid annual leave or has failed to pay the worker the correct amount in lieu of accrued leave on termination. Additionally, regulation 31 provides for a right not to suffer a detriment as enunciated by section 45A ERA. It is evident that section 45A ERA gives effect to Article 22(1)(b) WTD (maximum weekly working time) and as highlighted above, there is no corresponding provision in the WTD applicable to Article 7. However, whilst it is arguable that to the extent that section 45A is not limited to the right to a maximum working week, it goes beyond the provisions of the WTD and amounts to the enactment of a more favourable provision to protect the health and safety of workers, I am not satisfied that there is no reasonable prospect of the claimant establishing that this provision gives effect to the underlying and wider purpose of enforcing the provisions of the WTD, including Article 7. This provision can be contrasted, for example, with the right to additional leave under regulation 13A WTR which exceeds the minimum right to paid leave under the WTD and which self-evidently does not give effect to that instrument of EU law. (39) Turning to the principle of equivalence, as the ECJ underlined in Levez, it is necessary to consider both the purpose and essential characteristics of allegedly similar domestic actions, as well as the role played by the allegedly less favourable provision in the procedure as a whole, the operation and any special features of that procedure. Indisputably, as the claimant has submitted, sections 45A and 47B are both statutory torts, situated within Part V ERA, have been compared to discrimination and victimisation claims, are enforced through section 48 ERA with the same compensatory regime. However, whereas the purpose of section 47B is to provide protection in the public interest for whistleblowers, the provisions of section 45A upon which the claimant relies have the purpose of providing protection for asserting a statutory right under the WTR (45A(1)(b)) or for complaining about a breach of the same (45A(1)(e) and (f)). Further, although there is a ‘good faith’ requirement for section 45A(1)(e) and (f) claims, which no longer applies to a section 47B claim, it is notable that the latter action operates in a more mechanistic and onerous way, as enumerated under Part IV ERA, requiring a putative whistleblower to establish a reasonable belief that the information they have disclosed tends to show at least one of the six prescribed Case Nos: 2213509/2023 & 2216645/2023 10 of 10 categories of wrongdoing and also a reasonable belief that the disclosure was made in the public interest, in addition to establishing that a qualifying disclosure has been made to a relevant person. Overall, whilst these factors may point towards a conclusion that these domestic actions are not sufficiently similar for the purposes of this EU principle, I am not satisfied that there is no reasonable prospect of the claimant establishing the contrary position. Given R2’s concession on less favourable treatment, I make no findings on this second limb of the test. Accordingly, the threshold for strike out is not met. (40) Turning next and finally, to the principle of effectiveness, as Levez underlines, the claimant must establish that his ability to enforce his EU law-based rights has been rendered virtually impossible or excessively difficult. I note that the claimant could in principle have brought the detriment claim under section 47B instead of section 45A – as intimated in the claimant’s written submissions dated 5 March 2025 – which would have provided him with an alternative means of enforcement, at least in relation to a claim under subsection 45A(1)(f). However, I am not satisfied that this is a relevant factor or at least one to which I should attach much weight because the focus is on the effectiveness of section 45A as a means of enforcing the claimant’s rights arising from the WTD and, in any event, the claimant would not able to enforce his rights under subsections 45A(1)(b) or (e) by virtue of section 47B. It is evident that in the circumstances of the case, in which R1 has been struck off the Register, the claimant will be deprived of a detriment claim under section 45A (unless he is able to restore R1 to the Register) by virtue that this provision is only enforceable against an employer. I find that this tends to support the claimant’s submission that section 45A undermines the principle of effectiveness so that the threshold for strike out is not met. (41) I would like to apologise to the parties for the delay in promulgating this judgment.