Mr M A B Ramli v Maybank Securities (London) Ltd: 2224559/2024
JUDGMENT
For the reasons given at the hearing, the judgment of the Tribunal is as follows: Employment status[1]The claimant was not an employee of the respondent. The complaints ofa. unlawful deduction from wagesb. failure to provide a statement of main terms of employmentc. equal payd. automatic unfair dismissal ande. breach of working time regulations are therefore dismissed because the Tribunal does not have jurisdiction to determine them. Dismissal of claims[2]The complaints under Case No: 2224559/2024a. the Modern Slavery Act 2015 andb. Worker Protection (Amendment of Equality Act 2010) Act 2023 are dismissed because the Tribunal does not have jurisdiction to determine them. Continuing claims[3]The claims for race discrimination, sexual harassment and victimisation are permitted to go forward. A separate case management order will be sent out in respect of those claims. JUDGMENT having been sent to the parties on 13 June 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunal Rules of Procedure 2024, on 19 June 2025, the following reasons are provided:REASONS
[1]The issues for the hearing were: 1.1. whether, at the material time, the claimant was an employee of the respondent; 1.2. to consider the respondent’s application to strike out parts of the claimant’s claim. Evidence[2]The tribunal heard evidence from the claimant and from Leonard White (Executive Director) and Farhan Nor Diyana Bt Samsudin (Chief Compliance Officer of Maybank Investment Banking Group at the relevant time, now Chief Audit Executive, Singapore).[3]The tribunal also had a bundle of documents running to 371 pages. Facts[4]The respondent is a wholesale investment firm, which is a wholly owned subsidiary of Malayan Banking Berhad (“MBB”), a Malaysian based financial services provider. MBB operates in locations worldwide, including London. The respondent is based in London.[5]The claimant is employed by MBB in its London office (MBB London). He started employment with MBB in 2013 and has been promoted on several occasions. In 2021 he took on the role of Head of Compliance SMF16 and SMF 17 roles for MBB London Branch.[6]In 2023, the person who was carrying out the role of Head of Compliance at the respondent resigned. Ms Samsudin, who was the claimant’s line manager, asked if the claimant was interested in taking on the role of Officer-ion-Charge, Compliance, subject to relevant regulatory requirements. He was interested and the parties entered into discussions.[7]There was no express agreement relating to salary although the claimant made it clear he had an expectation of a ‘salary adjustment’ and he was never expressly told that he had to do the additional role for the same salary.[8]After he had been doing the role for two months, he was issued with an offer letter which stated that the role with the respondent was in addition to his current position as Head of Compliance at MBB London. The letter stated that his terms and conditions of employment will continue to be governed under the terms and conditions of LD54 grade (referring to his existing grade).[9]Over this period, the claimant had a number of Whatsapp exchanges with Ms Samsudin which included discussion of salary.[10]In February 2024, the decision makers discussed the claimant’s salary and awarded him a 14% increase backdated to 1 January 2024 and a further increase to take effect from April when the FCA approvals were confirmed. He also received a bonus.[11]The FCA approvals were received in April 2024. After that the claimant resigned from the role with the respondent and he continues to carry out his role with MBB London. LegalIssues
[12]The claimant has continued his employment with MBB and has chosen not to include MBB as a respondent in this case. He has made his claim against the respondent only.[13]The issue for the tribunal is therefore whether he can pursue these claims against the respondent. Employment status[14]Some of those claims require the claimant to have been employed by the respondent. I find no evidence that the claimant was employed by the respondent. He was asked to take on additional responsibilities alongside his existing responsibilities. He expected to be paid more for doing extra work and the attraction to him of the additional role was additional pay.[15]However, there is nothing to suggest that the claimant expected this extra pay necessarily to come from the respondent or to be part of a different arrangement from his employment relationship with MBB. He referred to the additional pay as an ‘adjustment’ to his salary, meaning his salary with MBB.[16]Looking objectively at the relationship between the claimant and the respondent and how this manifested itself in reality, there is nothing to suggest that the claimant was anything other than MBB’s employee who was carrying out additional tasks for another group company. There was nothing in his terms and conditions with MBB that would prevent this and all the documentation between the parties is consistent with the conclusion that the claimant remained MBB’s employee and did not enter into a parallel contract with the respondent.[17]It would have been difficult but not impossible to have two separate contracts running side by side, but I would expect that such a dual arrangement would provide for allocation of working hours and benefits, holiday approval and other similar matters.[18]The only document in the bundle which explicitly states that the claimant was an employee of the respondent is a document which the claimant filled out himself as part of the FCA application process. I do not find the FCA documents of any assistance in determining whether the claimant was, in fact, an employee of the respondent. If there is any regulatory issue arising from the way the forms were filled out, that is not a matter for the employment tribunal. For the purposes of determining employment status, the way a form is filled out, in the absence of any other compelling evidence, is not of great significance.[19]In conclusion, I find that the claimant was not an employee of the respondent. Strike out application[20]Claims under the Modern Slavery Act 2015 are not within the jurisdiction of the tribunal and this claim is struck out. This would have been the case whatever the outcome of the employment status issue had been.[21]The claim under the Worker Protection (Amendment of Equality Act 2010) Act 2023 is withdrawn by the claimant.[22]The claimant claims unlawful deductions from wages. It is hard to see what amount the claimant is claiming as he received his salary from MBB for this period and is unable to point to any contractual obligation to give him specific additional remuneration. He relies on the promise of more pay but this was not crystallised into a contractual commitment until the pay review in February 2024. In any event this claim can only be brought against the employer so it is struck out as having no reasonable prospect of success against the respondent.[23]The claim for failure to provide a Statement of terms and conditions of employment only applies to employers so this is struck out as having no reasonable prospect of success against the respondent.[24]The Equal Pay claim could potentially be a valid claim but not against the respondent, and in any event, the claimant has not identified any female comparators who were paid more for doing like work so this claim is struck out as having no reasonable prospect of success.[25]The claimant’s claim for direct race discrimination can be brought against the respondent even if the claimant was not employed by the respondent. Discrimination cases are fact sensitive and not generally struck out for having no reasonable prospect of success on the merits. Similarly, any time points must be taken as following hearing of relevant evidence. The application to strike out this claim fails.[26]The automatic unfair dismissal claim is struck out as it can only be brought against the employer.[27]The claims for sexual harassment and victimisation can be brought against the respondent and the application to strike out these claims fails.[28]The claimant’s claim under the Working Time Regulations 1998 has been made against the wrong respondent and is therefore struck out. In addition, the claim was made out of time.