Case No 2300419/2017Venue CroydonHearing 8 & 9 July 2019
Between
Mr W AugustineClaimantData Cars LtdRespondent
Before
Employment Judge SiddallIn person for claimantMr M Paulin (instructed by Counsel) for respondentDate 11 February 2022
JUDGMENT
[1]The claims for unfair dismissal under section 94(1) and 104A of the Employment Rights Act 1996 are dismissed upon withdrawal.[2]The claim that the Claimant was subjected to a detriment for making a protected disclosure under section 47B of the Employment Rights Act 1996 is dismissed upon withdrawal.[3]By consent, the Claimant is found to be a ‘worker’ for the purposes of the Working Time Regulations 1998 and the National Minimum Wage Act 1998.[4]The Claimant was an employee of the Respondent
REASONS
[1]The Claimant brings a number of claims relating to his period working as a driver for the Respondent. He claims that he was both a worker and an employee, and that as such he was entitled to payment of the national minimum wage, holiday pay, notice pay and written particulars of employment. He also claims that he was subjected to a detriment first because he was a part-time worker and second for asserting that he was entitled to the national minimum wage and third for raising matters relating to health and safety and to the working time regulations. This preliminary hearing was called to deal only with the question of the Claimant’s status. Just prior to the start, Mr Paulin submitted a written skeleton in which he conceded that the Claimant was a ‘worker’. The Claimant indicated that he wished to argue that he was also an employee of the Respondent. I have heard evidence from Mr Leslie Chapman, a director of the Respondent. I also heard evidence from the Claimant.[2]The facts I found and the conclusions I have drawn from them are as follows.[3]In February 2016 the Claimant applied to join the Respondent as a mini-cab driver. He received an acknowledgment inviting him for interview that asked him to bring with him his driving licence and private hire driving licence. If he was going to use his own vehicle he needed the log book, MOT certificate and statement of insurance. The form stated that he would be joining as a selfemployed driver and that he would be responsible for his own fuel and maintenance costs, and would have to pay a weekly ‘circuit fee’.[4]The Claimant signed an ‘application for a self-employed driver’ form. He also signed a form agreeing to the Respondent retaining his private hire driver licence for safekeeping.[5]There is a Private Hire Operator and Driver Agreement which sets out the terms of the arrangement.[6]The Claimant was required to rent various items of equipment from the Respondent including camera power leads and a card machine for £12 a week (or £5 if he had given notice that he was not working).[7]Clause 4.2 of the agreement stated that it was the Claimant’s responsibility to collect money from clients. Under 4.3 he was liable for unpaid fares.[8]Under 5.2 he was expected to take on a ‘reasonable’ amount of ‘account work’ ie jobs where the passenger did not pay the driver but whose organisation would be invoiced by the Respondent, and a proportion paid to the driver.[9]Under 6.3 the Claimant was required to undertake a minimum of 15 jobs per month. He was later instructed to take on at least 5 account jobs per week.[10]If the Claimant did not wish to work for a period, he had to give 48 hours’ notice of absences of up to 21 days. If he was unavailable for more than 21 days, the Respondent could treat the arrangement as being at an end.[11]Under clause 7.2 he had to notify the Respondent of sickness or other immediate absences through the ‘portal’.[12]Clause8.1 states that ‘for the duration of this agreement you agree not to enter into any agreements of a similar nature with any other provider of private hire services or to perform for such parties’ services which may result in damage to the business carried on by us’. Clause8.2 prevented the Claimant from holding a private hire operator licence.[13]The Claimant had to maintain insurance on his vehicle. He was given the option of renting a car from an associated company of the Respondent, subject to a rental fee. He opted to rent a vehicle from the 23 March 2016 onwards. He could also purchase insurance through a group cover scheme.[14]Under 11.3 the Claimant had to maintain a suitable appearance (with clothing and uniform requirements that varied according to the level of work he was doing) and abide by the driver’s handbook. The handbook provided very detailed guidance on how drivers should conduct themselves in a wide variety of situations. The Respondent’s signage had to be displayed on any vehicles.[15]He was not permitted to accept bookings from anyone other than the Respondent (clause 11.4.4). The rate for the booking was determined by the Respondent.[16]The circuit fee amounted to £148 per week, which would be set off against any account jobs accepted by the Claimant. If the value of account jobs exceeded £148, no fee was due.[17]In practice, the Claimant could log onto the Respondent’s app whenever he wanted, and log off at any time. He would be offered a job, and if he accepted it, the rate and details would be displayed. Once a job was accepted, the Claiamant says (and I accept) that he could not cancel the job as the ‘return job’ on the app did not work.[18]If the Claimant refused a job, he says (and Mr Chapman agreed) that there would be an electronic ‘time out’. The Claimant says that this lasted twenty minutes. Mr Chapman disputes that. He says that the purpose of the time out was to ensure that the same job was not offered to the driver again. He agrees in his statement that if a job was refused, the driver went to the ‘back of the queue’. Mr Chapman says that this was only for account jobs, not cash jobs. On balance, as Mr Chapman agreed that a ‘timeout’ occurred, I accept the Claimant’s evidence as to what happened.[19]There is no right of substitution contained in the Driver Agreement. Mr Chapman advised that in practice, if a driver had accepted a job and then did not want to fulfil it, he could swap with another driver. He suggested that this happened a lot with drivers of 8-person vehicles on airport transfer jobs and similar. The drivers would have each other details if they had got to know each other. However the job would still have to be re-allocated through the operator. The Claimant’s evidence which I accept is that he did not have the details of other drivers and so could not operate swaps in this way.[20]The Claimant’s experience of working for the Respondent was not a happy one. He took time off because of sickness absence in August. However it appears he did not give notice of absence and kept himself live on the portal, so that his obligation to pay the weekly circuit fee continued. He later reached agreement with the Respondent over paying back the arrears of fees. He says and I accept that when he expressed concern to the Respondent about earning enough to cover the fees, he was told by Mr Bansal that he would certainly be able to: ‘trust me, you will’.[21]On another occasion he was late paying cash into his bank to cover the rent and his access to the app was stopped. He had been unwell between 7 and 11 September 2016. He was given until 13 September to pay the fee and he worked on 12 September to raise the money. He paid the cash into his bank late on 13 September but was unable to access the circuit fee payment system. He was told he must pay £480 in total before access to the app was restored.[22]On 15 September 2016 the Respondent collected the rented vehicle from the Claimant and he has not worked for them since.[23]First I find that in general, the Driver Agreement accurately reflects the practical working arrangements that applied between the parties although the Claimant challenges the labelling of the agreement as a contract for services.[24]Mr Paulin argues that it is clear that the Claimant was a worker engaged by the Respondent, in accordance with the principles set out in other cases involving mini-cab drivers for other operators such as Addison Lee and Uber. However he denied that he was an employee. He points to the fact that the Claimant had agreed that he was self-employed, that he had to maintain insurance, that he collected payments from the passengers, paid for his own fuel and car maintenance and that he took the risk of unpaid fares.[25]Mr Paulin refers me to Quashie v Stringfellow Restaurants Ltd [2013] IRLR 99 and in particular the statement by Elias LJ that it would ‘be an unusual case where a contract of service is found to exist when the worker takes the economic risk and is paid exclusively by third parties’.[26]He also refers me to the three tests set out in Ready Mix Concrete Ltd v Minister of Pensions and National Insurance [1968] I AER 43.[27]More recent authority has suggested that these tests do not operate as a checklist and that all the relevant factors need to be taken into account when deciding whether a person is operating under a contract of service. I heed that warning, but nevertheless the Ready Mix Concrete case offers a useful starting point.[28]First I find that the Claimant agreed to provide his own work and skill in return for remuneration. I have noted that there is no right of substitution contained in the Driver Agreement. I have taken note of Mr Chapman’s evidence about drivers swapping jobs on an informal basis. Nevertheless these still had to be re-allocated through the operator. The arrangement described is quite different from a driver having the ability to send someone else along himself to fulfil a particular job that he accepted.[29]There was a substantial degree of control over the activities of the driver. He was obliged to observe the provisions of the driver handbook, and had to wear a uniform if he wanted to accept certain categories of work. He drove a vehicle displaying the Respondent’s signage.[30]The Respondent’s position is that the Claimant could work or not work whenever he wanted to. The reality was rather different. If he was off sick, it was not a case of not logging into the app. He had to notify the Respondent or he would continue to be charged equipment fees and circuit fee. Likewise if he decided to suspend working for the Respondent for a period, for example if he wanted to take a holiday, he had to give notice to avoid the charges continuing. If he was off for more than three weeks, the contract could be terminated.[31]I find that although once logged on the Claimant could refuse a particular job, if he did so he suffered the penalty of being locked out of the app and unable to work for 20 minutes.[32]Were the other provisions of the contract consistent with it being a contract of service?[33]I have noted that the Claimant took a degree of economic risk in that he was liable for any unpaid fares. He had to pay his own fuel and maintenance.[34]It is also of relevance however that the Claimant was prevented by the terms of the Driver agreement from either working for another private hire company himself or holding a private hire operator licence.[35]The Claimant agrees that he submitted a tax return for financial year 2015/2016 at the start of his engagement with the Respondent. For the financial year 2016/2017, the Claimant asserted to HMRC that he was in fact an employee.[36]I go on to consider the question of whether mutuality of obligation existed between the Claimant and the Respondent: did the Respondent agree to provide work and did the Claimant agree to accept work for which he would be paid?[37]It is clear that the Claimant accepted a minimum obligation to carry out 15 jobs per month, as specified in the agreement. He was later instructed to carry out at least 5 account jobs per week. I find therefore that there was an obligation upon the Claimant to offer some work to the Respondent although this was limited.[38]Was the Respondent under any obligation to offer work? The application form issued by the Respondent states that they ‘cannot guarantee the volume of work available’. However the economic reality of the situation was this. Unless the contract was suspended by the driver giving notice, they remained liable for equipment fees and circuit fees for the duration of the time that they worked for the Respondent. If the Respondent was under no obligation to provide work, the drivers would continue to accrue debt to the Respondent after they had logged on whilst having no means to pay the fees off. In any event, the Respondent clearly expected a certain level of work, as evidenced by the requirement to work 15 jobs a month and later 5 account jobs a week. It seems to me that the whole arrangement was geared to ensuring that the drivers worked a reasonable number of hours in order to cover their expenses. In those circumstances, I am not able to infer that the Respondent had no obligation to offer any work. As a matter of business efficacy, it must be implied that the Respondent would offer drivers enough work first of all to cover their minimum obligations and secondly to cover their weekly fees. That understanding is reflected in the answer that the Claimant records from Mr Bansal where he asked him if he would be offered enough jobs to cover his outstanding fees, and the answer came ‘trust me, you will’.[39]I conclude that although drivers were able to suspend the operation of the agreement between them, there was a reasonable level of mutual obligation between them that is not inconsistent with a contract of employment.[40]Where does that leave the question of the Claimant’s status? On the one hand, he is described as self-employed, pays his own expenses and takes the risk of fares not being paid. He can log on and off the app whenever he wants.[41]On the other hand, he is expected to work a reasonable amount and in turn has an expectation that he will be offered enough work to cover his fees. He is prevented from working for other operators. If he refuses a job he incurs a twenty minute time out. He is required to give notice of sickness and other absences, or he will still be charged the circuit fee and full equipment fee.[42]It is clear that the Claimant is not in business on his own account as a private hire driver. The drivers’ agreement effectively prevents him from carrying on his own private hire business or offering his services to other users. Mr Chapman asserts that his other drivers frequently log off the app and go and work for another operator. However under the terms of the agreement, that is a breach of contract. Further whilst the Claimant initially competed a tax return as self-employed, the following year he asserted that he was an employee. In any event, tax status is not determinative of employment status.[43]If the Claimant is not self-employed, can he demonstrate that he is an employee? I have noted the reference to Quarshie and take account of the fact that the Claimant collected payments from ‘cash’ customers himself. Nevertheless he was not exclusively paid by customers. The Respondent expected that he would do a certain amount of account work and for this he was paid by the Respondent. I accept that there was a degree of risk in relation to both types of passenger that they might refuse to pay, and that this was the responsibility of the Claimant. No evidence has been provided about how often this might have occurred. In any event that risk was not counterbalanced by a right to charge what he wanted for the job, as the rate was set by the Respondent and the Claimant had no right to negotiate it directly with the customer. I have concluded that the risk around unpaid fares is one factor, but not a determinative factor in the current proceedings.[44]The conclusion I have reached, having applied the various tests in turn, is that whereas there are some matters that suggest that the Claimant did not have employment status, the majority of the factors identified above point to a relationship that is consistent with the Claimant working under a contract of service.[45]That finding has limited application to this case, given the Respondent’s concession that the Claimant is a worker. He has withdrawn his claims for unfair dismissal. The impact of this decision is that the Claimant will be entitled to payment for a statutory minimum notice period of one week if he can establish that he was dismissed.[46]A further hearing is to be listed to determine the claims based on the Claimant’s status as a worker, including his claims to have suffered detriment and his claims for notice pay, holiday pay and for arrears of the national minimum wage.
The Facts
[47]That is different from the present case in which the Claimant is being treated in exactly the same way as all the other drivers. All of them had to work a certain number of hours before the circuit fee was covered. This might be achieved in different ways and in different periods of time depending upon the jobs obtained. On average the Claimant worked enough hours to cover the circuit fee.[48]The Claimant argues that the effect of the fixed circuit fee is that drivers would be discouraged or precluded from working part-time and that this would be contrary to the European framework directive upon which the Regulations are based. I can certainly see that the effect of the circuit fee is that it would not be viable for drivers to work less than around 30 hours a week; but that was not the Claimant’s situation. This does not establish that he personally had suffered less favourable treatment which is a requirement of the Regulations.[49]I therefore find that the Claimant and driver X427110 were treated in exactly the same way. Each of them had to work around 30 hours a week at least to ensure that the job was worthwhile and that they could pay the circuit fee the following week. Both of them did so. I find that the Claimant has not established that he was treated less favourably.[50]In case I am wrong on that conclusion, and taking the Claimant’s case at its highest, I go on to consider a further argument put forward by the Claimant. I remind myself that for less favourable treatment to be established, it must be shown that there was a difference in treatment that is more than minor or trivial.[51]The Claimant argues that the circuit fee represented a much greater proportion of his earnings than those of driver X427110. I do not have details of the earnings of this driver but I will assume that it is correct that drivers who worked on average more hours than the Claimant were taking home more money, and a greater proportion of the fares, than the Claimant.[52]One could answer this point by arguing that there was nothing to stop the Claimant from working more hours. He was not confined to working around 34 hours per week, although he has explained on previous occasions that he wished to work part-time so that he could study at the same time. I accept that he did not wish to work more hours.[53]Regulation 5(3) requires me to take into account the ‘pro rata’ principle in deciding whether there was less favourable treatment, unless it is inappropriate.[54]Mr Skudra suggests that this factor only becomes relevant when considering whether the treatment is ‘justified’ under regulation 5(2)(b). I have noted that the case of Mcnemeny deals with the pro rata principle in a slightly different way (see paragraph 13 of that judgment which I have quoted above). In that case the court considered the application of the holiday rules and took into account the pro rata principle at this point, concluding that ‘if the appellant had received a pro rata amount of time off in lieu of Monday statutory holidays, he would not be less favourably treated’.[55]Following that approach, and by way of alternative, I apply the same principle to the circuit fee: if the amount of the fee had been reduced pro rata to reflect the hours worked by any individual driver, the Claimant would not be less favourably treated.[56]If I am wrong in my conclusion that the requirement to pay the circuit fee did not amount to less favourable treatment as all drivers were charged the same amount, and if I have applied the pro rata principle correctly, I would find that the fee amounted to less favourable treatment of the Claimant. The circuit fee would represent a greater proportion of fares earned by a driver who was working 30 hours a week than by a driver who was working 60 hours a week or more.[57]I should note here that the effect upon the Claimant varied according to how many hours he worked each week. In a week where he worked around 20 hours, the circuit fee would of course have represented a much greater proportion of his earnings than during a week where he worked 50 hours or more.[58]It is then necessary for me to decide whether such treatment is on the ground that he was a part-time worker.[59]The evidence of Mr Chapman and Mr Townson demonstrates that the model whereby private hire vehicle companies charged drivers a ‘circuit fee’ or ‘rent’ in order to access bookings is well-established. I accept that it is likely that many private hire companies operated in this way until the arrival of Uber introduced a different, commission-based model based upon a sophisticated software booking system. It was the way in which these companies earned their revenue.[60]In accordance with the McMenemy case I consider the intentions of the Respondent and the reasons why the Claimant was charged the full circuit fee.[61]The Claimant’s case is that the Respondent along with other private hire companies operating a similar model, was acting ‘unlawfully’. He is referring to the fact that these companies treated their driver workforce as self-employed. He points to the fact that in his case, and others, it has been established that drivers working under this model were at the very least workers and sometimes (as in his case) sometimes employees. He relies upon the finding that he was not being paid the National Minimum Wage during the period when he worked for the Respondent. He argued that the Respondent could have operated on a basis that was less discriminatory such as a commission arrangement.[62]The Claimant has already established at earlier hearings that it was not correct to treat him as self-employed; he was in reality an employee. He was not being paid the National Minimum Wage. However these factors on their own do not establish that he was less favourably treated on the ground that he was a parttime worker.[63]The reason why the Claimant was charged a circuit fee is because this was the way in which private hire companies such as the Respondent were operating. It is the way in which the Respondent earned a revenue from the business. Unlike newer businesses such as Uber, the Respondent did not collect the fares from its cash customers. These were paid direct to the drivers. The circuit fee gave the drivers access to the Respondent’s booking system. Whereas I might go so far as accepting that the Claimant was charged a circuit fee because he was treated as self-employed, (treatment that has been found to be incorrect) that in itself does not establish causation under the Regulations: because it does not show that he was charged the fee because he was working fewer hours than his fellow drivers. All the Respondent’s drivers were treated as self-employed and were charged a circuit fee however many hours they worked.[64]I have considered the Claimant’s argument that the Respondent could have operated a commission-type model where the sum charged varied according to the hours worked by the driver. I note that the Claimant moved from Uber because he wanted to earn a higher rate per mile. The commission arrangement therefore was something he had already tried and rejected. I accept however that there was a crucial difference between the way in which Uber operated: namely that under their system the company collects all the fares. When the Claimant was working for the Respondent all cash fares were paid directly to him by customers. The Respondent had to have some way of earning money from the arrangement and their chosen and established method was to charge a circuit fee. This was in line with other similar businesses. I also accept that at the time when the Claimant was engaged the Respondent may not have had access to the type of software operated by Uber which allowed for a commission type arrangement, and that they have only been able to move to that system since the onset of the pandemic. I find however that even if the Respondent could have operated on a different basis, that too does not establish that he was charged a full circuit fee because he worked fewer hours than other drivers.[65]In the Campbell case, the employment tribunal had found that the only difference between Mr Campbell and his comparators was that he worked fewer hours; in particular when he worked a four hour shift rather than a six hour shift. As he was not paid for a rest break when working a four hour shift, the tribunal concluded that there was less favourable treatment. The EAT rejected this argument. It was decided that the tribunal had not properly applied the causation test in accordance with McMenemy. It was accepted that a part-time worker would inevitably work fewer hours than a full-time comparator. However the tribunal could not properly conclude that there was any causal connection between Mr Campbell’s part-time status and the length of his shifts. There was no basis upon which the tribunal could conclude that the difference in treatment was ‘on the ground’ that he was a part-time worker, far less that his part-time status was the sole ground for such difference in treatment.[66]Applying that approach to this case, it is correct that the Claimant was working fewer hours than his comparator. The result was that in some weeks he took home a lower proportion of his pay, after accounting for the circuit fee. However I find that this does not establish that the charging of the full circuit fee was on the sole ground that he was a part-time worker. The circuit fee was the means by which the Respondent obtained a revenue from its business. All drivers were treated in exactly the same way. The McMenemy decision, quoted above, makes it clear that the question of causation ‘requires examination of the Respondents’ intention: did they intend to treat him less favourably for the sole reason that he was a part-time worker?’ Based upon the evidence presented I find that this claim is not made out. The Claimant was charged a circuit fee in return for which he was granted access to the Respondent’s cab booking system. It was the means by which the Respondent derived earnings from its business. It was applied to all drivers in exactly the same way. The fact that the Claimant has established that he should not have been treated as self-employed does not lead to a conclusion that the circuit fee amounts to a breach of the Regulations. The Claimant was not charged the full circuit fee simply because he worked fewer hours than other drivers: the reason why he was charged the fee was so that he could obtain access to bookings through the Respondent’s systems in the same way as any other driver. There has been no evidence to suggest that the hours a driver was likely to work had any impact upon the Respondent’s requirement that the fee be paid: it was simply the condition they imposed before taking any driver on, and the means by which they made money out of the arrangement.[67]In conclusion, my decision is as follows. I find that the Claimant has not established that he was treated less favourably than a comparable full-time worker such as driver X427110 as they were both treated in exactly the same way. If I am wrong on that and if the Claimant can establish less favourable treatment on the basis that he was taking home a lower proportion of his salary, I find that in any event the charging of the circuit fee was not on the sole ground that he was a part-time worker. The claim under regulation 5 therefore fails.
The Facts
[1]A remedy hearing took place on 18 February 2020. I awarded the Claimant various sums including notice pay, and (following reconsideration) a figure of £574.73 by way of a shortfall in the National Minimum Wage. The Claimant appealed that decision arguing that I had not made proper allowance for vehicle rental costs and deposit, and uniform costs. He argued that under regulation 13 of the National Minimum Wage Regulations these should be deducted in considering whether the correct amount of NMW had been paid. The EAT agreed with him and remitted these matters back to this tribunal on the question of the correct sum of NMW shortfall to be awarded.[2]The EAT also remitted two other matters: first the question of whether the Claimant should be awarded any consequential losses under section 24(2) of the Employment Rights Act 1996; and finally the question of whether there should be an ACAS uplift to the sum of £465 I had awarded by way of notice pay.[3]I will deal with each of the remitted points in turn. NMW shortfall[4]I find that the full sum of £3982.85 claimed by the Claimant in relation to vehicle rental charges and rental deposit shall be deducted from the wages he received when calculating what he was paid, for the purposes of his NMW claim. Having considered the judgment of the EAT I find that these were expenses ‘in connection with’ the employment for the purposes of regulation 13 National Minimum Wage Regulations 2015. I have considered the Respondent’s argument that there should be a reduction for only a proportion of these costs on the basis that the Claimant enjoyed private use of the vehicle during periods when he was not working. I find that the matter is dealt with decisively by the EAT at paragraph 36 of their judgment: the expense ‘neither had to be necessarily incurred, nor wholly or exclusively incurred. The test that Parliament has determined appropriate in the context of a national minimum wage calculation is whether the expenditure is in connection with the employment’. This statement leaves no room for a ‘pro rata’ approach to the deduction and there is nothing in the legislation which would appear to support that either.[5]Again in accordance with the EAT judgment the figure for uniform costs is to be deducted from the wages paid in calculating the correct figure. The total uniform cost is £88.[6]The exact amount of the NMW shortfall, taking into account these findings, could not be established before the close of the hearing. The Respondent had produced a spreadsheet showing its own calculation but the Claimant wanted time to consider this. I agreed that I would reserve issuing my judgment for 7 days to give him the time to comment and for any errors to be corrected. I understand that an inputting error was identified. On 9 November 2021 the Respondent sent me a revised spreadsheet which calculated the total NMW shortfall at £3680.37. I have not seen any correspondence from the Claimant asserting that he disputes this figure and so I have included it in my judgment. My earlier judgment awarding the Claimant the sum of £574.73 was therefore revised and replaced with an award of £3680.37 gross. Reconsideration[7]On 30 November 2021 the Claimant sought reconsideration of the decision on the NMW shortfall. He argued that the calculation was incorrect as the ‘circuit fee’ charged by the Respondent before drivers could access the booking system had not been properly accounted for. In short, he pointed out that the Respondent’s calculations had made allowance for the circuit fee where it had been paid direct by him out of cash payments he received from customers. They had not made allowance for the circuit fee deducted from ‘account’ payments received by the Respondent from account customers. I note that the circuit fees figure that had been used in my earlier remedy judgment and in this judgment had not been challenged previously by the Claimant. He had not raised the issue with the EAT and nor had he pointed this out when he was given the chance to consider the Respondent’s calculations after the hearing on 3 November. Nevertheless he is entitled to seek reconsideration of the remedy judgment now issued. It is important to ensure that his NMW entitlement has been calculated correctly. I decided that it was in the interests of justice to reconsider the amount of NMW awarded. I requested the Respondent to consider the Claimant’s application and provide a revised calculation if requested. They did so on 14 January 2022. They agree that an error had been made. They calculate that the correct amount of the NMW shortfall is £5116.79. They copied their correspondence to the Claimant. As of today’s date I am told that the tribunal have received no correspondence from him to query this figure. Accordingly I have made a decision to vary my earlier decision and to increase the amount of the NMW shortfall in line with the Respondent’s revised calculation. The revised Judgment set out above reflects that figure. ACAS Uplift[8]In relation to the ACAS uplift, it is the Respondent’s case that they did not apply a disciplinary procedure before terminating their contract with the Claimant because they were operating on the assumption that he was selfemployed and that the statutory provisions did not apply to him. They point out that the Claimant did not seek to raise either a grievance or an appeal in relation to the termination of his employment. The Claimant asserts that the scheme set up by the Respondents to treat the drivers as self-employed was a deliberate effort to circumvent the law relating to employment rights and that they should have applied a fair process before bringing his employment to an end. I find that the truth is somewhere between the two positions. The Respondent, like many other private hire vehicle companies, had made arrangements to hire drivers on the understanding that they were self-employed contractors. There has been a great deal of litigation over recent years which has now largely established that many of them are at least workers. In the case of the Claimant I found that he was in fact an employee. I find that the Respondent did not carry out a disciplinary process before terminating the Claimant’s contract because they believed that they were not required to do so. The Claimant believed himself to be an employee and he brought tribunal proceedings asserting this very soon after his employment with the Respondent ended: yet he did not seek to assert his rights to trying to raise either a grievance or an appeal against termination. I conclude that whilst the Respondent was not without fault in failing to give the Claimant any chance to put his side of the story before they peremptorily arrived to collect his vehicle, this should not be treated as in the most serious category of cases as they were operating under the view that the procedures did not apply; and nor were they alerted to the fact, at this stage, by the Claimant that he believed their assumption to be incorrect (which he could have asserted in a grievance or appeal). In all the circumstances I find that an uplift of 12.5% (ie midway within the range up to 25%) should be applied and I award the Claimant an additional sum of £58.13 (the notice pay award amounting to £465). Consequential losses under section 24(2) of Employment Rights Act[9]The Claimant also claims consequential losses under section 124(2) of the Employment Rights Act 1996. Under this provision I can award such amount as is considered appropriate in all the circumstances to compensate a worker for any financial loss sustained by him which is attributable to his claim for unlawful deductions/failure to pay the NMW. I deal with each of the Claimant’s claims under this heading in turn.[10]The Claimant claims lost employer’s pension contributions of £412.14. No pension scheme was offered to the Respondent’s drivers such as the Claimant who were treated as being engaged on a self-employed basis. I agree with the Claimant that following the finding that he was an employee of the Respondent, it is very likely that the pension auto-enrolment rules applied. However the question I must consider is whether I should make a payment of compensation for him.[11]The first point I take into account is that even if the Claimant had been enrolled in a pension scheme, the employer’s contributions would not have been paid direct to him but into the scheme.[12]I have looked to see if there is any case law on the issue of whether an employee can be reimbursed for an employer’s failure to make employers pension contributions into a scheme. I remind myself that in a claim for unfair dismissal, an employee could be awarded compensation for loss of pension, which is often calculated on the basis of the amount of employer’s pension contributions which would have been made, had employment continued. I have noted the case of Somerset County Council v Chambers UKEAT/0417 which makes it clear that contributions to a pension scheme do not come under the definition of wages. The tribunal’s reasoning included the fact that pension contributions are not payable to the employee.[13]In response to this the Claimant makes the point that he does not seek compensation for lost pension contributions by way of a claim for unlawful deductions, but by way of a claim for consequential losses as a result of the failure to pay him NMW. I accept that. I agree that in this case the Claimant and his fellow drivers may have lost out by not being enrolled in a pension scheme. Is this attributable to the fact that he was not being paid NMW?[14]I return to the fact that the Respondent at all times treated the Claimant as a self-employed contractor, responsible for his own tax and pension arrangements. It seems to me that this is the reason why he was not given access to a pension scheme. I find it more likely than not that if the Claimant had been treated as a PAYE employee, he would have been auto-enrolled into a scheme, whatever his level of pay. I find that the failure to make pension contributions is attributable to this factor and not to the pay arrangements that were in place. Even if this were not the case, it does not seem appropriate that any sum should be awarded direct to the employee. He would never have received those payments and ultimately they would have been reflected in his eventual pension entitlement. In all the circumstances I find that an award under this heading is not appropriate.[15]The Claimant claims compensation for lost employer’s national insurance contributions amounting to £1127.23. I agree that as the Respondent failed to pay the Claimant the NMW and he is entitled to payment of the shortfall, employer’s national insurance contributions may now become due. However I am not satisfied that the Claimant has demonstrated that he has suffered a ‘loss sustained by him’. He has not produced evidence from HMRC for example to show how his national insurance record has been affected. Again, those sums would never have paid direct to the Claimant. They would have been paid to the Respondent direct to HMRC under the usual PAYE obligations. It seems to me that there are a number of possibilities here. First, the Respondent will have to record the sums paid to the Claimant by way of NMW and may have to account for these to HMRC. That may lead to HMRC charging the Respondent direct for the unpaid contributions. Second it is open to the Claimant to write to HMRC to notify them of the fact that he was not being paid NMW. They are of course the enforcement body for breaches of NMW legislation. He could request that he is credited with the unpaid NI contributions on the payments that he should have received.[16]In the absence of any evidence about the effect of the underpayment of NMW upon the Claimant’s national insurance record I am not able to conclude that at present this is a loss sustained by him. I find that the claim is premature. The position may change once the NMW shortfall has been paid. This may be a matter that is better taken up with HMRC.[17]I award the Claimant the sum of £425.44 in relation to the additional mobile phone charges that he incurred. He says and I accept that he was required to have a phone with specific capacities and a specific amount of data to run the ‘app’ through which he was able to log on as a driver and be given work. Whilst he made the payments during his employment, he defaulted on his phone bills first when he had to go off sick in the autumn of 2016 and then when his contract was terminated. Ultimately the phone company cancelled the contract when he could not keep up the payments. They charged him a cancellation charge which he is still paying off on a monthly basis. Whilst I accept that to an extent these charges arose not because of his overall rate of pay but because his employment came to an end, I take into account the fact that he was required to have an expensive phone, that he was finding it difficult to manage on the wages he was receiving and that he fell into significant financial problems around August or September 2016 after he fell ill. Given that these problems commenced during his period of employment with the Respondent I find that they are attributable to his claim and that it is appropriate to award him that sum.[18]I do not make any award in relation to the wasted costs that the Claimant says he incurred because he was unable to complete the Knowledge for London. He purchased training materials in 2015. He says that it was his intention to work for the Respondent as a private-hire driver whilst completing his Knowledge training. To do this, it was recommended that he purchased a moped but he says he could not afford this on the wages received from the Respondent. He has produced letters showing that TFL granted him three separate extensions to the time period during which he would have to take his first written assessment, the final extension being granted until August 2019, some three years after his engagement with the Respondent ended. During that time the Claimant worked for short periods for three other organisations. He worked for another private hire company from September to November 2016 and with another employer November 2016 to March 2017. He did one shift for Deliveroo. He was unemployed and on benefits from March 2017 to August 2019. He has now set up his own self-employed business. He never took the Knowledge written assessment and claims all his initial costs of application, a total of £691.14.[19]The Claimant had from February 2016 to August 2019 to complete this written assessment. Whilst accepting that he has struggled financially, I do not accept that his failure to achieve this qualification can be said to be attributable to the Respondent. Even if he was unable to progress his training during the six months he was working for them he had a further 3 years to complete it. The fact that he was not financially able to move forward throughout that period is not wholly down to the Respondent. It appears that in the period from 16 September 2016 to March 2017 the Claimant worked for two other companies, but for whatever reason his employment with them was very short-lived. No doubt this also contributed significantly to his financial difficulties. Second whilst it was the evidence of the Claimant that the normal practice was for people learning ‘the Knowledge’ to purchase a moped, there was no evidence of other efforts to learn the routes during the seven months when he was employed by the Respondent. Third, it was put to the Claimant and he accepted that there was no guarantee that he would have passed the written assessment at first attempt. He indicated that this was not an issue as it is possible to keep taking the assessment provided you pass within the time limit (usually two years). This evidence seems to acknowledge the possibility of a failure of the written assessment at the first attempt. I find that even if he had been able to progress his studying of the Knowledge during his period of employment from February to September 2016, there is a chance that he may not have passed the assessment during that period.[20]In all the circumstances I find that the Claimant’s failure to progress his training within the extended time period cannot be said to be attributable to the Respondent – there are too many intervening or potentially intervening factors, such as his failure to secure or remain in other work. He has not established that the reason why he was not able to take the written assessment over a total period of around three and a half years was attributable to the amount he was paid during the seven or so months he worked for the Respondent in 2016. The wasted costs he has claimed are too remote from the events of his employment with the Respondent and specifically from the amounts he was paid by them.[21]It is worth noting that Regulation 5 is worded in a similar way to section 13 of the Equality Act, ie the provision relating to direct discrimination. As I understand the Claimant’s argument, he is really saying that the provision is indirectly discriminatory: the charging of the circuit fee, although applied to all drivers, has a particular disadvantage for those who are working fewer hours. Such an argument is more akin to a claim under section 19 of the Equality Act 2010, but the 2000 Regulations are not structured in that way. Like a claim for direct discrimination the Claimant must show that the less favourable treatment was ‘because of’ his part time status and the claim does not automatically succeed because he was treated as self-employed.[22]I conclude that there is no basis for reconsidering my earlier judgment on the claim under the Part-time Worker Regulations.[23]Finally I refuse the application for reconsideration of my decision not to permit the Claimant to bring a claim for race discrimination, over four years since he lodged his claim and after all evidence in relation to the Claimant’s other claims had concluded. It would not be in the interests of justice to permit the amendment. It would require the listing of an additional hearing and the introduction of a substantial amount of additional evidence. It has not been raised previously. It is important that litigation does not continue endlessly. There is a need for finality at some point. That point has now been reached.[24]I therefore refuse the application for reconsideration on the grounds that there is no prospect of the decision being varied or revoked.