Ms Odudu v Department for Environment, Food and Rural Affairs: 2216154/2023
JUDGMENT
[1]The claimant was not an employee of the respondent.[2]The claimant had less than two years’ service with the respondent.[3]The tribunal therefore does not have jurisdiction to hear her claims for unfair dismissal and breach of contract. The remaining claims proceed to a hearing on 11-14 February 2025.REASONS
[1]Claimant’s non-attendance at the hearing 1.1. The claimant did not attend the hearing. The date of the hearing had been agreed with the parties during a preliminary hearing on 9 May 2024. It appears that the Case Management Order from that hearing may not have been sent to the parties as the respondent has not received it. There is also no record on the tribunal’s file of a notice of hearing for today’s hearing being sent to the parties. However, Mr Bayne explained that the claimant had contacted his instructing solicitor the day before the hearing and asked if the preliminary hearing today was still going ahead and had been told it was. 1.2. The claimant has a representative on the record but had previously told the tribunal that the representative was very unwell due to chemotherapy treatment, and any correspondence should be directed directly to her rather than the representative. She has been dealing directly with the respondent’s solicitors. 1.3. The tribunal had received no communication from the claimant to say that she was unable to attend. 1.4. The claimant was aware of the preliminary hearing and had been collaborating with the respondent’s solicitor regarding the bundle and witness statements. 1.5. For over an hour after the hearing was due to start, the tribunal clerk attempted to contact the claimant by email and by telephone and the claimant’s representative by telephone. He received no answer. 1.6. From the documents available, it appeared that the issues were straightforward. The claimant’s views were expressed in a witness statement and she had included specific documents in the bundle. 1.7. Rule 47 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 states that: “If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.” 1.8. I considered that the claimant would be at a disadvantage in not attending, because a potential outcome of the hearing was that the tribunal would decide it had no jurisdiction to hear her unfair dismissal and breach of contract claims and she would not have an opportunity to state her arguments on these points. I weighed this up in considering the overriding objective. In the context that the claimant had provided no correspondence or evidence regarding her nonattendance, and she was fully aware of the date and time of the hearing, and that the respondent and a witness had attended and the tribunal had judicial resource available, and in addition that the claimant had submitted a witness statement addressing the issues to be decided, I concluded that, despite the disadvantage to the claimant, it was in accordance with the overriding objective to deal with cases fairly and justly, dealing with a case in a way which is proportionate to the importance of the issues, avoiding delay and saving expense, to continue with the hearing in line with Rule 47.[2]Documents and evidence 2.1. I had sight of a bundle of 178 pages and witness statements from the claimant and from Mr Williams, Contingent Labour Resourcing Lead at the respondent. I also had a skeleton argument from Mr Bayne. 2.2. Mr Williams confirmed his witness statement on oath. 2.3. I took Mr William’s statement into account. I also took the claimant’s statement into account and I read the pages in the bundle to which the respondent directed me, and the section in the bundle entitled “claimant’s disclosure for preliminary hearing”.[3]Facts 3.1. The respondent organises its contingent labour needs via Public Sector Resourcing (PSR). This is fulfilled by an organisation called Anthony Mann Solutions (AMS). The claimant was employed by an umbrella company, Parasol Group. AMS paid Parasol Group and Parasol Group paid the claimant. Pay was calculated by reference to timesheets the claimant submitted on the respondent’s online system known as Fieldglass. 3.2. The claimant worked for the respondent on a number of short contracts. There is no dispute between the parties as to the dates she was engaged. Each time she worked for the respondent, she was engaged via Parasol and AMS in the way described above. 3.3. The claimant submitted timesheets for the work she did and appears to have recognised herself as a contractor. She wrote emails consistent with this, including referring to timesheets and her PSR “approver” (p.56) and a Teams message in which she refers to herself as a contractor (p.105). She received emails referring to the respondent as the “client” and her engagement with the umbrella company (p.47-52). 3.4. The claimant’s method of engagement was consistent with her being an agency worker.[4]Law 4.1. The law concerning contracts of employment is governed by Section 230 of the Employment Rights Act 1996 (ERA 1996) and considerable case law. 4.2. Section 230 ERA 1996 states that: An employee is an individual who has entered into, or works under, a contract of employment. (S.230(1)). A contract of employment is an express (whether oral or written) or implied contract of service (s.230(2)). 4.3. The case of Ready-Mixed Concrete (South East) Ltd v the Minister of Pensions and National Insurance [1968] 2 QB 497 set out the “irreducible minimum” required for a contract of service, namely: personal service, mutuality of obligation and control. 4.4. Regarding agency workers, in James v Greenwich Council UKEAT 0006/06/1812 the EAT held that a tribunal must consider whether it is necessary to imply a contract of employment between an agency worker and a client, or if the way in which the contract is performed is consistent with an agency arrangement. The EAT said that “It will be an exceptional case where a contract of employment can be spelt out in the relationship between the agency and worker” (paragraph 22). 4.5. In Tilson v Alstom Transport [2010] EWCA 1308, the Court of Appeal held that although an agency worker had been integrated into the client’s organisation, this was consistent with the existence of an agency arrangement and did not mean a contract of employment existed. 4.6. Section 94 ERA 1996 states that “an employee has the right not to be unfairly dismissed by his employer.” In order to bring a claim of unfair dismissal, a claimant must be an employee. 4.7. To bring a claim for breach of contract a claimant must also be an employee. Article 3 of the Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994 states “Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages…”.[5]Conclusions Employment status 5.1. There was no express contract of employment between the claimant and the respondent. 5.2. Following James, I may only find an employment relationship exists between an agency worker and a client if it is necessary to imply a contract to make sense of the relationship between them. 5.3. The respondent accepts that if it is necessary to imply a contract between the parties, that the Ready-Mixed Concrete test would be made out. 5.4. It is not necessary to imply a contract in this case. 5.4.1. The arrangement between the respondent, AMS and Parasol was clear, and the claimant was engaged in accordance with that arrangement. 5.4.2. The respondent did not pay the employer directly for the work she did. She was paid by Parasol. 5.4.3. The claimant consistently worked in accordance with the agency arrangements, submitting timesheets for approval by her PSR approver, and chasing a contract needed under the arrangements between the parties before she could be paid. 5.5. The claimant was an agency worker and was necessarily integrated into the respondent organisation to enable her to fulfil her work. This did not make her an employee (Tilson v Alstom Transport [2010] EWCA 1308). 5.6. The claimant saw herself as a contractor. Although this is not decisive, it contributes to demonstrate that this is a case where the arrangements between the claimant and the respondent were genuine and implemented accurately. There was no mutual obligation binding the claimant and the respondent that were incompatible with those arrangements. 5.7. There was therefore no contract of employment between the parties. This means the claimant was not an employee of the respondent, so the tribunal has no jurisdiction to hear her claims of unfair dismissal or breach of contract. Length of service 5.8. There is no dispute between the parties as to the periods of time the claimant worked. The claimant had a gap of over 1 week between July and September 2022. This broke the claimant’s continuous service, meaning she had less than two years’ service with the respondent.