Ms K Stefancik v HopeFull (SCIO) and Mr T Hughes: 2216966/2024 Ms K Stefancik v HopeFull (SCIO) and Mr T Hughes: 2216966/2024
EMPLOYMENT TRIBUNALS
Case No 2216966/2024
Between
Ms K StefancikClaimant(1) HopeFull (SCIO) (2) Mr T Hughes RECORD OF A HEARINGRespondent
Before
Employment Judge JoffeDate 2 May 2025
JUDGMENT
[1]The claimant was not at material times employed by the first or second respondent within the meaning of the Equality Act 2010.[2]The Tribunal does not have territorial jurisdiction to hear the claimant’s claims.[3]The claimant’s claims are dismissed.
REASONS
[1]This was a public preliminary hearing to consider the following issues:a. The claimant’s status as an employee for the first or second respondent within the meaning of the Equality Act 2010;b. Whether the Tribunal has territorial jurisdiction to hear the claimant’s claims;c. Whether time should be extended to allow the claimant to pursue her claims out of time pursuant to section 123 of the Equality Act 2010.[2]The respondents did not pursue an earlier application that the claims should be struck out due to the claimant’s failure to comply with Tribunal orders.
Findings
[3]I was provided with a bundle of documents running to 438 pages. I also had statements from the claimant on her own behalf and for the respondents:a. Mr C McIntosh, trustee of the first respondent;b. Mr T Henriksen, trustee and former CEO of the first respondent;c. Mr T Hughes, former head of operations for the first respondent and also the second respondent.[4]The claimant had sought to adduce further documents and a further witness statement for herself at the start of the hearing. For reasons I gave orally, I did not admit the new documents or witness statement.[5]The claimant’s witness statement covered some matters which were not relevant to the preliminary issues. I did not admit those parts of the statement into evidence. Facts[6]The respondent is a charity which has been operating since 2021. It is registered with the Scottish Charity Regulator (‘OSCR’) at a Scottish address and used to be called Siobhan’s Trust. It is has no official connections with the British government and receives no funding from the British government.[7]The purpose of the charity is to provide pizza, drinks and snacks to people affected by the war in Ukraine.[8]In terms of its structure, the charity has several trustees. In terms of administration, Ms J Fox-Pitt, a volunteer based in the UK, has initial communications with and processes new volunteers. Ms L Elsworthy is the charity’s administrative assistant, also based in the UK, and she and Mr McIntosh deal with the charity’s bank account and accounting.[9]Mr McIntosh said that the trustees are responsible for the strategy and operational direction of the first respondent but that the day to day operational elements were delegated by the trustees. The charity had an operational board which met weekly to look at volunteer numbers looking to join and where those volunteers were looking to go. Mr Hughes or Mr Fisher would join the meetings so that they would be aware of the number of volunteers.[10]Mr Hughes was at relevant times the first respondent’s operational leader in Ukraine and also the team leader in the East of the country; Mr K Fisher was his deputy. Both were said by the first respondent to be self-employed consultants, who billed the first respondent for their services on a monthly basis. At the time the claimant was involved with the first respondent, there was a team leader for the West of Ukraine also. There were also three Ukrainian (and Ukrainian-based) individuals said to have been paid as selfemployed contractors, two of whom worked as fixers and one as a driver and mechanic.[11]Mr McIntosh said that as the first respondent was a small charity with limited funds, the trustees would have to carefully discuss any increase to the number of people on the payroll. He said that no one in Ukraine was authorised to make any offers of employment.[12]The process for engaging volunteers is that, in general, when an application is received, Ms Fox-Pitt provides the volunteer with a volunteer form to complete. She decides whether the person is suitable and then registers that person on the first respondent’s volunteer database. Volunteers make their own way to the Ukrainian border. Once they are in Ukraine, they are under the leadership of Mr Hughes and/or Mr Fisher, who make decisions about day to day matters such as accommodation and cleaning of trucks and pizza ovens. Generally volunteers stay for two to three weeks, although some, including the claimant, have stayed longer. Mr Hughes said that there were an average of fifteen volunteers in Ukraine at one time. They had had some 4 – 500 in total with perhaps eighty in a six month period.[13]Mr McIntosh was asked how performance or conduct issues relating to volunteers would be dealt with. He said that minor matters could be dealt with by Mr Fisher or Mr Hughes; more serious matters could be escalated to the board of trustees.[14]The claimant applied to be a volunteer with the first respondent on 28 November 2022. She had previously worked as an event manager / executive assistant and had Ukrainian heritage.[15]I saw a form entitled ‘Operational Guidelines with Siobhan’s Trust in Ukraine’ which had attached to it a volunteer information form. This document was filled in and signed by the claimant on 14 February 2023. The document gave volunteers some guidance about the location and the volunteer activities and practical advice including advice related to safety. As to accommodation, the document said this: We’re based [in] Lviv which is a buzzing and beautiful city, and currently relatively safe. Accommodation options range from £15 hostels, £30 apartments to £150 hotels. The trust has a house where you can sleep if you do not have the funds to arrange yourself – you may have your own room or a mattress in shared room depending on numbers.…You also may go on 2 or 3 day trips further afield, where we are normally hosted by local friends. In practice I heard that volunteers were put up in hotels by the first respondent.[16]The form asked for personal information such as next of kin details and information about how long the volunteer planned to stay and ‘Any other plans you have while in theatre?’. It said: ‘We understand plans change and the whole situation in Poland & Ukraine is constantly evolving, so we will always remain flexible. We would encourage volunteers to come out for a minimum of 2 weeks (ideally longer) to enable you to get the most out of the experience, and to make the biggest difference to those refugees whom you are serving.’ The volunteer was asked if they would like to stay in the first respondent’s accommodation. I heard evidence that some volunteers fundraised to contribute to the costs of their stay.[17]There was also a paragraph about the risks of working in a war zone which stated that the first respondent did not accept any liability for the volunteers. The volunteer signed as accepting that provision.[18]It appeared from WhatsApp messages in the bundle that the claimant was provided with the volunteer form by Mr Hughes and liaised with him about coming out to Ukraine. He arranged for her taxi from the Ukraine border to Lviv. He did this from Ukraine.[19]There were no other signed documents between the first respondent and the claimant. Mr Henriksen said that from September 2023, the first respondent began providing staff and volunteers with a copy of a staff waiver and the first respondent’s safeguarding policy. The claimant was provided with these documents on 1 September 2023 and asked to sign them, however Mr Henriksen said that she did not sign them before leaving the charity on 8 September 2023. The claimant said that she did sign them and gave them to Mr Fisher in person.[20]The staff waiver inter alia said: ‘I have read the Operating Rules set out in this document and the Trusts’ Safeguarding Policy. I confirm that I have understood them both and will comply with all aspects thereof, in addition to any other reasonable guidance or instruction provided by the Trust’s operational team.’ It also included various statements about the volunteer accepting that he or she participated in activities for the first respondent at his or her own risk. It concluded: ‘This waiver, and any dispute which may arise out of or in connection with it, shall be governed by and construed in accordance with Scottish law.’[21]The operating rules attached to the waiver set out practical and safety advice, some ‘values’ and a driving protocol. None of the parties took me to particular material provisions of these rules.[22]The safeguarding policy was written by Mr McIntosh. It was said to be ‘relevant for all trustees, charity staff & volunteers who operate for the organisation.’ In the document, ‘staff’ were those whom the first respondent paid as ‘independent consultants’ and volunteers were unpaid. In a section entitled ‘Siobahn’s Trust Statement of Commitment to Safeguarding’, there was the following statement: ‘Siobhan’s Trust strives to ensure that its Trustees, staff & other volunteers working on behalf of the Trust act in a way which ensures that the Trust is compliant with statutory charitable requirements, to safeguard all its individuals and Ukrainians’ and ‘Siobhan’s Trust will also follow the Safeguarding Guidance published by the Office of the Scottish Charity Regulator (OSCR).’ The document made provision for procedures for staff and volunteers to report safeguarding concerns.[23]Annex 1 is entitled ‘Indicators of Possible Abuse’. One category of abuse covered is ‘Discriminatory’. The claimant referred in particular to a section which reads: ‘Discrimination is abuse that relates to difference – or perceived difference – particularly with respect to race, gender, disability, or any of the protected characteristics of the UK Equality Act (as a UK charity these requirements still apply to us while working in Ukraine).’ Mr McIntosh was unsure in cross examination what his intention is alluding to the Equality Act at this part of the document was.[24]The policy said inter alia that the first respondent was committed to safeguarding staff, volunteers and the Ukrainians whom it encountered and that the first respondent had a responsibility to keep staff, refugees and volunteers safe and protect them from abuse and/or inappropriate behaviours.[25]There was the following passage in a section entitled ‘Introduction and overview’: ‘Siobhan’s Trust does not have specific ‘employees’ (as normally defined in employment law). While it operated originally only with unpaid volunteers, since mid-2022 the Trust does now employ (and pay) some independent consultants – working alongside (and guiding / managing) our volunteers. These paid members are referred to as ‘Staff’ for the purpose of this document. For the benefit of this document, ‘Staff’ are paid and ‘volunteers’ are unpaid The former are often volunteers who have stayed on in Ukraine and who have since taken on a more prominent role.’[26]Mr McIntosh’s evidence was that volunteers would not simply evolve into being staff members. In order for a new paid member of staff to be appointed, a role would have to be identified and recruitment process undertaken by the board of trustees.[27]The claimant’s primary activity whilst with the first respondent, in common with other volunteers, was to visit sites, help set up the awnings on the pizza trucks, turn on ovens, unpack and cook pizzas and distribute pizzas. There might be activities arranged for local children such as face painting or juggling.[28]The claimant stayed in a hotel arranged and paid or by the first respondent. She was provided with food by the first respondent. She volunteered with the Eastern team. The team would travel every five to ten days, staying in hotels or flats.[29]The respondents’ witnesses said that volunteers were free to take some days off whilst working in Ukraine. Mr Henriksen accepted that a volunteer might feel pressure to come out to site, particularly if the activities were otherwise short-staffed. There was no sanction for not assisting on a particular occasion. Mr Henriksen said that the first respondent did need volunteers to be reliable and if a volunteer were unreliable they would be spoken to and might be asked to move on. However he could not think of an occasion when that had occurred. He was asked in cross examination how many days off would be too many and he said probably three or four consecutive days off might show that a person was not committed to the charity but said that this was an arbitrary number. Mr Hughes said there was no specific numbers of hours or days a volunteer was expected to participate but that if someone no longer wanted to volunteer the charity would look to fill their space with someone who did. If a volunteer simply did not show up, they would get by without that volunteer. He would ask them what had happened and suggest they upped their game.[30]Volunteers did not have to give any particular notice when they wished to cease volunteering. They would be assisted to get out of Ukraine and over the border into Poland.[31]None of the volunteers is paid for their work. The claimant, like other volunteers would be reimbursed if she bought food for the team or petrol. There were no tax or National Insurance or pension payments.[32]The claimant worked with the first respondent in Ukraine between February and September 2023. Mr Henriksen said that the claimant was asked to leave after her boyfriend, a Swedish ex soldier threatened to ‘eliminate’ Mr Hughes. The claimant was allowed at her request to stay in the first respondent’s flat in Lviv and Mr Henriksen said that she extended her stay there until 8 October 2023, when she had to be asked to leave. The claimant has a different account of these events but I did not have to resolve these issues for the purposes of the preliminary hearing.[33]Mr Hughes gave an account of his work for the first respondent. He was responsible for handling perishable food logistics, bringing food from Europe to distribution hubs in Ukraine. He scheduled each day’s work and liaised with local contacts He did risk assessments, arranged transport for volunteers, maintained a fleet of seven trucks and oversaw the daily work of volunteers.[34]The claimant said in her witness statement that Mr Hughes and Mr Fisher directly assigned her tasks, monitored her activities and provided detailed instructions. She said that she had to attend daily coordination meetings. She said that Mr Hughes and Mr Fisher had the authority to evaluate and criticise her performance and to reprimand her.[35]Mr Hughes said he would give volunteers feedback and he had on occasion criticised the claimant’s work.[36]Mr McIntosh said that there would be an operational meeting each day usually over dinner to discuss what sites were being visited and how many volunteers were needed. Mr Hughes said that he would get up early to assess possible threats and then see to shopping and refuelling of vehicles. The volunteers would meet at a prearranged time to leave in a timely fashion to the sites, They would then drive to site, set up, provide the services, pack up and then return home. The volunteers did essentially the same tasks each day[37]The claimant said that Mr Fisher had orally promised her a ‘monthly stipend’ of £400 for her ‘exemplary work’. She said that this took place on 14 August 2023 at one point in her witness statement and elsewhere in the statement said that it took place in July 2023. When asked about the difference in dates she said that she had had to look back at pictures to work out of the dates. She said that she was unclear on dates due to a history of concussion. Mr McIntosh said that Mr Fisher had no authority to offer a stipend. If a role were identified, a recruitment process would be carried out by the trustees. Mr Hughes said that he had no knowledge of such an offer having been made. Any job offer would have had to have come from the trustees.[38]The claimant accepted in cross examination that she could have left at any time and that she was not contractually obliged to do anything. She said that she worked most days and took little time off, on one occasion working sixty days in a row without a break.[39]The claimant presented her claim form on 12 March 2024. She attached as narrative the complaint she had previously made to OSCR on 2 December 2023. At the point when she had complained to OSCR, she was not intending to litigate but was hoping something would be done as a result of her complaints, The claimant was represented at this point by Dr M Parrish and he submitted the claim form on her behalf. She said that she did not do any significant research herself about employment tribunal claims - if she had done any at the time, it was a very small amount – and she relied on Dr Parrish. Dr Parrish was a friend from the volunteer community and a lawyer. He had offered to help her with the process.[40]The claimant accepted in cross examination that Mr Hughes was not her employer. She said that he was her supervisor. Submissions Respondents[41]The first respondent submitted that there was no contract between the claimant and the first respondent. The language of the volunteer form was not that of contractual obligation.[42]If there was a contract, it was not a contract of employment; there was no remuneration. The fact that the claimant was paid for expenses and received accommodation and food were themselves neutral facts which do not establish an employment relationship. She had no obligation to do work and the first respondent had no contractual remedy or sanction if the claimant declined to work. There was no notice period and no provision for holiday. There was no payment of tax or National Insurance or pension contributions. The claimant’s evidence was not consistent or credible and she should not be believed about the promise of a stipend. In any event there was no concluded agreement for a stipend.[43]On the issue of territorial jurisdiction, the claimant could not show a strong enough connection with Great Britian and British employment law for it to be presumed that Parliament must have intended that the Equality Act should apply. Where an employee both lives and works outside Great Britain, it has to be a truly exceptional case, for example where there is an extra territorial British enclave such as a military base or the employee is a foreign correspondent for a British newspaper. The claimant was a US citizen who conducted all of her work in Ukraine and was at no time based in the UK during the period. She was not recruited, paid or taxed in the UK. She was managed day to day by individuals in Ukraine. The first respondent had no connections with the British government and did not represent Great Britain abroad.[44]On the issue of whether the claims were presented in time, the respondents said that the claimant was aware of the facts giving rise to her claim within the limitation period and had in fact formulated a document of complaint (presented to OSCR) within that period. She was represented by Dr Parrish at the time. It was not just and equitable to extend time. Claimant[45]The claimant said that she had a contract of employment contained in the staff waiver and safeguarding policy and the volunteer information form. There was mutuality of obligation; she was required to undertake duties essential to the first respondent in exchange for room and board and the promise of a stipend. Volunteers were an integral part of the organisation as their work was key to the core mission of the first respondent. Her activities were subject to detailed instruction and she was monitored. She had to sign a waiver which she said was not typical for a volunteer. She had to attend daily coordination meetings. She was required to provide personal service. There was a high degree of control over the activities. The Tribunal should look beyond the label given to the relationship as per Autoclenz.[46]As to territorial jurisdiction, the first respondent was a charity registered in Scotland and governed by trustees based in the UK. It was subject to UK law and a UK regulatory framework. The trustees in Scotland decided who should be employed in Ukraine. The safeguarding policy does not distinguish between staff and volunteers and refers to the Equality Act 2010. Parliament must have intended protection to extend to employees of UK charities abroad.[47]It was just and equitable to extend time because of the nature of the case: it was about sexual assault. The claimant promptly complained to OSCR. She had difficulties with her lay representative. The cogency the evidence was unaffected by the short delay.[48]Furthermore the claimant was relying on there being a continuing act connecting her complaints in the claim form with matters she sought to add by way of amendment. The last of these acts took place on 12 November 2024 and she had made her amendment application on 5 February 2025. Law Employment Status
Law
[49]Section 83 of the Equality Act 2010 says : (2) “Employment” means— (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;[50]The necessary components of employment under the Equality Act 2010 include a contract and personal service. As to what else is required, in Jivraj v Hashwani [2011] ICR 1004, the Supreme Court said that the essential questions for determining whether a person is in ‘employment’ for the purposes of the discrimination legislation are whether: - on the one hand, the person concerned performs services for and under the direction of another person in return for which he or she receives remuneration, or - on the other hand, he or she is an independent provider of services who is not in a relationship of subordination with the person who receives the services.[51]Lord Clarke said that these were broad questions, the answers to which depend on the circumstances of the particular case and a detailed consideration of the relationship between the parties.[52]It is clear from case law that the definition of employee in the Equality Act 2010 is the same in substance as the definition of worker in the Employment Rights Act 1996. In Bates van Winkelhof v Clyde and Co LLP and anor (Public Concern at Work intervening) [2014] ICR 730, SC, which concerned the definition of worker in the Employment Rights Act 1996, Lady Hale stated: ‘the law now draws a distinction between two different kinds of self-employed people. One kind are people who carry on a profession or a business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them. …The other kind are selfemployed people who provide their services as part of a profession or business undertaking carried on by someone else’. She said that although the definition of employment in the Equality Act 2010 ‘does not include an express exception for those in business on their account who work for their clients or customers’, that had been introduced by way of the requirement for subordination discussed in —Hashwani. Subordination is not however a freestanding and universal characteristic of a worker and other factors such as integration into the business might indicate worker status.[53]There is a number of authorities on the issue of whether volunteers can be employees within the meaning of the Equality Act 2010. In order for such a volunteer to be an employee within the meaning of the discrimination legislation, the EAT has held that: ‘it is necessary to be able to identify an arrangement under which, in exchange of valuable consideration, the volunteer is contractually obliged to render services to or else to work personally for the employer’: South East Sheffield Citizens Advice Bureau v Grayson [2004] ICR 1138, EAT. The volunteer agreement in that case provided for reimbursement of expenses. The EAT held: We consider that the crucial question which was before the tribunal was not whether any benefits flowed from the Bureau to the volunteer in consideration of any work actually done by the volunteer for the Bureau, but whether the Volunteer Agreement imposed a contractual obligation upon the Bureau to provide work for the volunteer to do and upon the volunteer personally to do for the Bureau any work so provided, being an obligation such that, were the volunteer to give notice immediately terminating his relationship with the Bureau, the latter would have a remedy for breach of contract against him. We cannot accept that the Volunteer Agreement imposed any such obligation. Like many similar charitable organisations, similarly dependent on the services of volunteers, the Bureau provides training for its volunteers and expects of them in return a commitment to work for it, but the work expected of them is expressed to be voluntary, it is in fact unpaid and all that the Volunteer Agreement purports to do is to set out the Bureau's expectations of its volunteers. In our view, it is open to such a volunteer at any point, either with or without notice, to withdraw his or her services from the Bureau, in which event we consider that the Bureau would have no contractual remedy against him. [Per Rimer J][54]The leading case on volunteers is X v Mid Sussex Citizens Advice Bureau and anor 2013 ICR 249, SC, in which X had signed a volunteer agreement which was stated to be ‘binding in honour only… and not a contract of employment or legally binding’. It was argued that the claimant’s engagement as a volunteer constitute an ‘occupation’ within the meaning of the EU Equal Treatment Framework Directive (No. 2000/78) and therefore the domestic legislation had to be construed so as to include X. That argument was ultimately rejected by the Supreme Court which held that the Framework Directive does not extend to volunteers.[55]In Groom v Maritime and Coastguard Agency [2024] EAT 71, the EAT made clear that use of the word ‘volunteer’ is by no means determinative and that the agreement as a whole has to be analysed. In Groom the workers described as volunteers were entitled to claim payment for certain types of work they carried out.[56]Where the parties have expressly agreed that their relationship is to be one of something other than employment, that is relevant but not determinative. The Tribunal must scrutinize the true nature of the relationship in order to determine whether the terms of the written agreement reflect the true nature of the relationship between the parties or whether the written agreement seeks to characterize the relationship in an artificial way. In this respect, the relative bargaining power of the parties must be taken into account: the terms of any agreement will be more readily accepted as representing the true nature of the agreement where the parties’ bargaining power is relatively equal. These are the principles to be derived from the Supreme Court’s decision in Autoclenz Ltd v Belcher and ors [2011] UKSC 41, [2011] ICR 115: In my judgment the true position, consistent with Tanton, Kalwak and Szilagyi, is that where there is a dispute as to the genuineness of a written term in a contract, the focus of the enquiry must be to discover the actual legal obligations of the parties. To carry out that exercise, the tribunal will have to examine all the relevant evidence. That will, of course, include the written term itself, read in the context of the whole agreement. It will also include evidence of how the parties conducted themselves in practice and what their expectations of each other were. Evidence of how the parties conducted themselves in practice may be so persuasive that the tribunal can draw an inference that that practice reflects the true obligations of the parties. But the mere fact that the parties conducted themselves in a particular way does not of itself mean that that conduct accurately reflects the legal rights and obligations. For example, there could well be a legal right to provide a substitute worker and the fact that that right was never exercised in practice does not mean that it was not a genuine right … [Per Smith LJ as approved by Lord Clarke] Territorial jurisdiction[57]Rule 10 (2) of the Employment Tribunals Rules of Procedure 2024 limits the jurisdiction of tribunals in England and Wales to determine a claim presented to cases where: - the respondent, or one of the respondents, ‘resides or carries on business’ in England and Wales; - one or more of the acts or omissions complained of took place in England and Wales; - the claim relates to a contract under which the work is or has been performed partly in England and Wales; or - the tribunal has jurisdiction to determine the claim by virtue of a connection with Great Britain, which is at least partly a connection with England and Wales.[58]Additionally, for Employment Tribunals to have jurisdiction, the statute under which the claim itself is made must have territorial reach.[59]It is helpful in order to understand the position in respect of claims under the Equality Act 20210, to start with the position in relation to unfair dismissal. The Employment Rights Act 1996 as currently enacted does not contain any express geographical limitations on unfair dismissal claims. The limits on the ambit of the ERA have been considered in case law.[60]In general the ERA is intended to apply to employees living and working in Great Britain. Employees working and based entirely abroad - expatriate employees - may in exceptional circumstances be entitled to claim unfair dismissal. Two examples of circumstances where such an employee would enjoy unfair dismissal protection given by Lord Hoffman are: An employee posted abroad by a British employer for the purposes of a business carried on in Great Britain — for example, a foreign correspondent on the staff of a British newspaper; an expatriate employee of a British employer ‘who is operating within what amounts for practical purposes to an extraterritorial British enclave in a foreign country’: Lawson v Serco Ltd [2006] ICR 250, HL.[61]Where an employee works and lives wholly abroad, it is appropriate to ask whether his or her employment relationship has much stronger connections both with Great Britain and with British employment law than with any other system of law — Duncombe v Secretary of State for Children, Schools and Families (No.2) [2011] ICR 1312, SC, or, per Lord Hope in Ravat v Halliburton Manufacturing: ‘the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that sec 94(1) should apply to them.’ This is a question of fact and degree.[62]The leading authorities concern unfair dismissal and other rights under the ERA. The principles in those authorities are applicable to other employment statutes which are silent about their territorial reach, including the Equality Act 2010: Bates van Winkelhof v Clyde and Co LLP and anor [2013] ICR 883, CA.[63]The fact that the employer is UK-based is not sufficient to establish the relevant connection; if the employer is not UK-based there can be no argument that the Equality Act applies: R (on the application of Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] ICR 975.[64]The relative merits of an alternative system of law as compared to British employment law are irrelevant to the question of whether the employment relationship has a sufficiently strong connection with Great Britain and British employment law: Dhunna v Creditsights Ltd [2015] ICR 105: The object of the exercise is not to decide which system of law is more or less favourable to the employee: it cannot realistically have been Parliament’s intention that the general rule in relation to expatriate employees should be regarded as ousted in any case in which the local employment law is less favourable to the employee than British employment law. The object of the exercise is simply to decide whether an employee is able to except himself from the general rule by demonstrating that he has sufficiently strong connections with Great Britain and British employment law. Time limits[65]Under s 123 Equality Act 2010, discrimination complaints should be presented to the Tribunal within three months of the act complained of (subject to the extension of time for Early Conciliation contained in s 140B) or such other period as the Tribunal considers just and equitable. The onus is on a claimant to convince the tribunal that it is just and equitable to extend the time limit: Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434, CA.[66]Under s 123(3), conduct extending over a period is to be treated as done at the end of the period.[67]The following factors may be relevant for the Tribunal to consider:(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had co-operated with any requests for information;(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; and(e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action: British Coal Corporation v Keeble [1997] IRLR 338. Conclusions Employment status
Conclusions
[68]Ultimately the claimant was not pursuing a case that she was employed by the second respondent.[69]I first considered whether there was a contract between the claimant and the first respondent.[70]The few documents which there are which might contain or evidence the contract do not speak the language of obligation. The only one available at the inception of the relationship was the volunteering form; this form makes it clear that the volunteers can arrive and leave on dates which they choose. There is a ‘guide on what to expect and how to act whilst you’re with us’ which covers practical matters and safety rather than setting out obligations of either party.[71]I was obliged to look at how parties conducted themselves as well to see if that evidenced a contract between the parties. Was I able to conclude that there was a contract under which the respondent was obliged to provide work for the claimant and she was obliged to do that work?[72]The claimant said that she in fact provided work for long periods of time. However she did not suggest that she had to provide notice if she wished to take a day off or that she was obliged to give notice that she wished to cease working for the first respondent in Ukraine. The claimant was free to stop volunteering at any time without notice; she did not suggest otherwise. The first respondent was free to stop providing accommodation or ask the claimant to stop working. The fact that the first respondent would not continue to provide accommodation and food for a volunteer who was not committed to volunteering did not seem to me to transform the nature of the arrangement.[73]Looking at the picture as a whole, I was not persuaded that there was any contract at all. The documents themselves do not outline any enforceable rights and nothing about the way the parties conducted themselves seems to me to show that they intended to create any such rights. If the claimant simply left, the respondent would not be able to enforce any aspect of an agreement against her as there was no notice period. Similarly, the respondent could ask the claimant to leave or cease to pay for her hotel or provide her with food. She was not obliged to work on any particular occasion or at all. If she ceased to undertake the activity, it did not seem to me that the first respondent would have had any enforceable remedy against her.[74]If I am wrong about that and if there was a contract of some kind, it seemed to me that it was not a contract of employment under the extended definition in the Equality Act 2010 because, inter alia, there was no provision for remuneration.[75]The claimant as a matter of fact provided her own work and was provided with accommodation and food. I considered the claimant’s argument that these benefits were in fact remuneration. I accepted that they had substantial value.[76]I was not addressed on any authority on the distinction between ‘remuneration’ and ‘expenses’ or as to when a benefit in kind might assume the character of remuneration. It seemed to me, approaching the matter unassisted by authority, that the provision of food and accommodation to a volunteer had the character of an expense which would otherwise be incurred by the volunteer in making themselves available to do the work. This was more substantial provision than the expenses which would be incurred by a volunteer doing work near to his or her home but it still seemed to me to have that character. Looking at it in another way, what was provided was not provided to reward the claimant for her labours but simply to enable her to carry out those labours.[77]There was some level of subordination in the relationship which was necessary to facilitate the activities. Volunteers had to be supervised and organised by more experienced people. They had necessarily to be told what sites to go to and what to do at those sites. There was some feedback provided about the activities and there were daily meetings usually over supper to discuss the following day’s activities. The level of subordination seemed to me to be entirely consistent with a relationship of a volunteer to a charitable organisation providing its services in a war zone. Some aspects of subordination more characteristic of an employee / worker relationship were altogether missing however, in particular the right on the part of the first respondent to be able to direct the claimant to do any work at all if she chose to refrain from working.[78]Looking at the degree of integration, it did not appear that the claimant was more highly integrated into the organisation than any other volunteer, that is not to a very great degree. She did not have a supervisory or other specialist role.[79]Was there a change to the relationship either: - After the provision of the safeguarding policy and the waiver? - Because Mr Fisher promised the claimant a stipend?[80]It did not seem to me that the safeguarding policy and waiver, even if the latter were signed, added anything which materially altered the relationship between the parties. If the waiver constituted any kind of contract (and I heard no real submissions on this point) it was not a contract obliging the first respondent to provide work or the claimant to undertake that work.[81]Did there come a point in time when the situation changed and there was a contract for the claimant to work for a monthly stipend?[82]I heard no evidence from Mr Fisher. I found the claimant’s evidence on this point was vague and lacking in detail She said that the amount promised was £400 but did not give any evidence as to the context for the alleged promise or indicate when Mr Fisher said the payments would begin, if indeed he did refer to a date. There was no evidence of the claimant having chased up the arrangement after either of the dates when she said the promise was made, which was hard to understand if she had believed that she was contractually entitled to the stipend.[83]I accepted the claimant’s evidence that there was some discussion with Mr Fisher about her receiving payment in July or August 2023. It was clear from the evidence of the respondents’ witnesses that Mr Fisher had not discussed this proposal with the trustees or Mr Hughes. I was not satisfied that the claimant was promised a stipend by Mr Fisher to begin on any particular date which predated the termination of her work for the first respondent. Had I been so satisfied there might have been issues to be resolved as to whether Mr Fisher had any actual or ostensible authority to enter into a contract on the first respondent’s behalf but I did not have to resolve that issue given my findings. In any event, I heard no detailed submissions on that point.[84]In those circumstances, I did not find that there came a point when the claimant had a contract personally to provide services in return for remuneration. I did not find that there was any change to her status during the period she was carrying out charitable work for the first respondent in Ukraine. She was at no stage an employee within the meaning of the Equality Act 2010. Territorial jurisdiction[85]It seemed to me, after I began my deliberations, that there was a real question as to whether the claim should have been presented in Scotland. I have not been addressed on that issue, however, and say no more about it for the purposes of this Judgment.[86]I find that there was no sufficient connection with Great Britain or British employment law and the Tribunal does not have jurisdiction to hear this claim.[87]Although the first respondent is a charity based and regulated in Scotland, the work it sponsors is work done abroad by volunteers recruited in some cases, including that of the claimant, abroad. The day to day management of those operations is carried out abroad. The work is done in locations in different parts of Ukraine which are in no sense British enclaves. It is work done for the benefit of Ukrainian people rather than being work done abroad to benefit an entity in Great Britain (unlike the work performed by the foreign correspondent in the example from the authorities). There is no particular connection with the UK government.[88]The claimant was in the parlance of the case law a genuine expatriate in carrying out the work. The claimant herself did not at the time make her home in Britain and she was not recruited in Britain. She travelled to Ukraine from her home in the United States.[89]I am not able to say what remedies might have been available to the claimant under Ukrainian law but in any event that is not relevant to the test I had to apply.[90]The fact that the charity is itself based on Scotland was the starting point for considering whether the Equality Act might apply but was not sufficient of itself to establish the requisitely strong connection. The fact that the trustees and UK based individuals gave direction to and provided support to the activities in Ukraine seemed to be the almost inevitable consequence of the first respondent being based in Scotland. It was not, however, a feature of the arrangements that the claimant was herself being managed from Scotland. The activities she was engaged in were being managed day to day in Ukraine. Although it is capable of having some weight in the assessment, this feature is outweighed by the other factors.[91]Did the reference in the safeguarding policy to the Equality Act provide evidence of a strong connection with British employment law? Mr McIntosh, the author of the document, was unsure as to exactly what was meant. Looking at the document as a whole, its main purpose appears to be to provide a process for reporting and dealing with various types of harm which might be done to and/or by staff, volunteers, and Ukrainian recipients of the first respondent’s services. This section of the policy appears to be aimed at ensuring that none of the people covered by the policy treat each other in a way which would infringe the provisions of the Equality Act 2010.[92]Although, taken at its highest, the policy appears to be stating that the Equality Act 2010 ‘applies’ to the first respondent whilst carrying out its activities in the Ukraine, it did not seem to me that this section of the safeguarding policy of itself and in the context of the circumstances I have set out above, pointed to a very strong relationship with British employment law. To say that the Equality Act 2010 applies to the first respondent could mean any of a number of things; that the first respondent intends to act in accordance with the Equality Act 2010 or that it believes it is subject to the Equality Act 2010 such that it can be sued under its provisions are only two possibilities. The question as to which aspects of the Equality Act 2010 are being referred to also arises. The Equality Act 2010 of course covers matters other than employment relationships including the provision of services. It would not have been open to the first respondent in any event to confer jurisdiction on the Employment Tribunal in this jurisdiction over activities in the Ukraine simply by saying so.[93]The statements in the Safeguarding Policy about compliance with statutory obligations and OSCR Safeguarding Guidance were also not of themselves and in context evidence of a strong connection between the claimant’s engagement and British employment law. The obligation to comply with Scottish charity law and OSCR regulation arises because the first respondent is a Scottish charity. That of course is the starting point of the enquiry as to whether the Employment Tribunal has jurisdiction, but very far from being the end point.[94]I have not been able to identify any contract and this is not like cases where there is a contract said to be governed by British law, a feature which can be part of the connection with Britain and British employment law. The waiver said that it was governed by Scottish law but it was not an employment contract per se. It appeared to be aimed at excluding potential tortious liability at common law. Neither party addressed me on this aspect of the waiver but it did not appear to me to weigh heavily in the balance of suggestion a strong connection between the claimants’ engagement and British employment law. The claimant received no payment so there was no payment in the UK of tax or National Insurance.[95]In all of the circumstances,, even had the claimant been an Equality Act employee, I was not satisfied that the Tribunal had territorial jurisdiction over her claims. Time limits[96]The claimant had applied to amend her claim to introduce some new matters, one of which would have been in time if a claim about it had been presented at the date when the amendment application was made.[97]In those circumstances it did not seem to me that it would have been appropriate to reach a conclusion on whether the claims in the claim form were in time without first considering whether the amendments should be allowed. There was insufficient time in the listing to consider the amendment application and, given my conclusions on the other preliminary issues, there could have been no purpose served in considering the application.
Conclusion
[98]It follows from my findings that the Tribunal has no jurisdiction to hear these claims, that they must be dismissed. I appreciate that the claimant will be disappointed that her serious allegations are not going to be heard on their merits. That consequence flows from the fact that she has presented her claims in the wrong forum.