Mr P Butler v Thames Water Utilities Ltd: 2301358/2021
EMPLOYMENT TRIBUNALS
Case No 2301358/2021
Between
Mr P ButlerClaimantThames Water Utilities LtdRespondent
Before
Employment Judge G CawthrayMr. Wood (instructed by Counsel) for claimantMr. Mitchell (instructed by Solicitor) for respondentDate 2 September 2024
JUDGMENT
The Claimant’s application to amend his claim is permitted. The Claimant’s complaints of victimisation under section 27 of the Equality Act 2010 and automatically unfair dismissal under section 103A of the Employment Rights Act 1996 will continue to a final hearing.
REASONS
[1]The Claimant participated in ACAS Early Conciliation between 16 February and 30 March 2021. The Claimant submitted his claim on 12 April 2021, and there was no legal representative on record at that time.[2]A Case Management Preliminary Hearing took place on 5 September 2022. At that hearing AREJ Balogun discussed the complaints with the parties and recorded that the complaints pursued were race discrimination and whistleblowing detriment. The Claimant was directed to provide further information. The Claimant represented himself at that hearing.[3]The Claimant provided some further information on 3 October 2022. A firm of solicitors briefly came on record for the Claimant on 12 December 2022 but withdrew from the record on 15 December 2022. The Claimant attempted to provide some further information on 9 January 2023.[4]The final hearing had initially been listed to take place between 20 and 23 February 2023, but this was vacated and converted to a Preliminary Hearing to take place on 20 February 2023 instead.[5]On 7 February 2023, the Claimant’s current solicitors came on record.[6]On 16 February 2023 the Claimant provided a draft List of Issues. as at pages 134 – 141 of the Bundle.[7]The Respondent’s representative notified the Claimant’s representative of their concerns relating to the draft List of Issues and on 17 February 2023 the Claimant provided the Respondent (and the Tribunal) with the following: A draft List of Issues – [page 66 Bundle] An application to amend – [page 155 Bundle] An Amended Particulars of Claim – [page 158 Bundle].[8]All three documents contain slightly different accounts of the amendments sought. I attempted to seek clarity on the basis of the amendments sought.[9]It would have been helpful for the details of the complaints that the Claimant was applying to amend to be included in one document, rather than across the draft List of Issues, the letter application to amend and an Amended Particulars of Claim. Mr. Wood explained that the Claimant’s solicitors had attempted to deal with the approach to the application by categorising the dismissal related complaints (both in an automatically unfair dismissal complaint and as an act of victimisation) as a new head of claim that was different to the other three allegations of victimisation that they had deemed to be a case of relabelling.[10]Mr. Wood explained that the basis of the application to amend to include a victimisation complaint regarding allegations of detriment save for dismissal is set out in the draft List of Issues provided on 17 February 2023, that starts at page 66 of the Bundle. It sets out that two alleged protected acts are relied upon (both on 19 October 2020) and three alleged detriments under a heading “Victimisation – Section 27 EqA”. The draft List of Issues does not cite the Claimant’s dismissal as an act of detriment. The Amended Particulars of Claim does reference the dismissal as an alleged act of detriment pursued under a victimisation complaint.[11]The draft List of Issues, at page 66, sets out that the Claimant alleges he made five protected disclosures and cites 16 alleged acts of detriment at paragraph 5 a - p. The draft List of Issues does not reference an automatically unfair dismissal complaint. The Amended Particulars of Claim does refer to an automatically unfair dismissal – section 103A – complaint.[12]Taking the documents submitted on 17 February 2023 together, the Claimant’s application to amend the claim involves the following:a. A victimisation complaint relying on two alleged protected acts, the three alleged detriments set out within the draft List of Issues, and a fourth allegation of detriment being his dismissal;b. An automatically unfair dismissal complaint relying on the five alleged protected disclosures that are relied upon in the whistleblowing detriment complaint.[13]The public preliminary hearing today had been listed following the Case Management Preliminary Hearing on 20 February 2023, to consider the Claimant’s application to amend, as it was not possible to consider the Claimant’s application to amend at that hearing.[14]The parties had provided a Bundle of 186 pages for the hearing today. The Claimant also provided some call logs and a witness statement. The Claimant affirmed, gave oral evidence and was cross-examined. I heard submissions from both parties.[15]The Respondent submits that the draft List of Issues contained new complaints. The Respondent’s written objection to the application to amend was submitted on 24 May 2023.[16]A discussion took place about the harassment complaint, and the Respondent noted that had been responded to within the Amended Grounds of Resistance. It was accepted the claim, as currently understood, included complaints of direct race discrimination, harassment (race) and whistleblowing detriment.[17]The parties agreed that the only complaints that were subject to the application to amend today were a victimisation (section 27 Equality Act 2010) complaint and an automatically unfair dismissal (section 103A Employment Rights Act 1992) complaint.
Facts
[18]It was not necessary to make significant findings of facts in order to consider the application to amend.[19]On 12 April 2021, the date of submission of the ET1, the Claimant was still employed by the Respondent.[20]A probation review meeting had been scheduled for 5 August 2021.[21]The Claimant contacted ACAS around 4 August 2021 to discuss bringing further claims. He says he was advised to add the complaints to his current claim, and not to submit another claim as that would slow matters down.[22]The Claimant’s evidence was that he contacted the Tribunal around the same time he spoke with ACAS and gave them a new number that had been provided to him by ACAS.[23]There is no phone call record to evidence any call to the Employment Tribunal at the start of August 2021. The Claimant had a personal and a work phone at that time. The Claimant provided a log of calls from his personal phone.[24]The parties agree that the Claimant was dismissed on 10 August 2021 and notified of his dismissal on 12 August 2021.[25]The Claimant says that at the Case Management Preliminary Hearing on 5 September 2021 AREJ Balogun told him there was another claim on record but did not have the papers to hand.[26]The Record of Preliminary Hearing states “Since presenting his claim, the claimant has been dismissed from his employment with the respondent. He claims to have presented a claim for unfair dismissal and unlawful deduction of wages but the Tribunal has no details of such a claim having been presented.”[27]Ms. Hardy, Solicitor for the Respondent, attended the case management preliminary hearing and key extracts of her notes are copied below for ease: PB says he’s brought a second claim. None of us have seen it. EJ says we’ll have to leave this to one side. You don’t appear to have another claim. PB – they deducted my wages. EJ none of this is in here. I’m going to focus on this claim. - UD claim. EJ significantly out of time. PB thought ACAS would add on to his claim. EJ explains ACAS’ role.[28]The Claimant initially had some support from a trade union representative but the person dealing with the matter has since left and the Claimant had not been informed. After the Case Management Preliminary Hearing on 5 September 2022 the Claimant took steps to obtain legal advice. He contacted one law firm shortly after the hearing but did not instruct them due to cost and contacted another in December 2022/January 2023.
Law
[29]I considered rules 29 and 34 of the Employment Tribunals (Constitution & Rules of Procedure) Regulation 2013, the Presidential Guidance on Case Management and the principles established in the leading cases including Selkent Bus Company Ltd v Moore 1996 ICR 836, EAT , Chaudhry v Cerberus Security and Monitoring Services Ltd 2022 EAT 172, Vaughan v Modality Partnership UKEAT/0147/20/BA(V) the cases referenced by the parties and the representations of the parties.
Conclusions
[30]I considered the relevant factors, including the nature of the amendment, time limits, the timing and manner of the application, and in particular the balance of injustice and/or hardship in allowing or refusing the amendments. I have reminded myself that is not necessary to use Selkent factors as a prescriptive checklist, but have considered relevant factors.[31]I asked the parties to address me on real prejudice.[32]I have summarised the parties submissions in outline only below, and fully considered the written submissions from Mr. Mitchell that are not repeated here.[33]Mr. Mitchell submits that the Claimant’s application to amend did not include the alleged detriments under the victimisation complaint. He further submitted the victimisaiton complaint was a new cause of action and was out of time, and that time limitation issues could be decided today.[34]Mr. Wood submitted that it was clear from the draft List of Issues that the Claimant was seeking to add a victimisation detriment complaint with three associated detriments that were considered to be relabelling and that his instructing solicitors had distinguished the approach in relation to dismissal related complaints. Mr. Wood submitted that the victimisation complaint was not a huge departure from what was already before the Tribunal and there was overlap with the race discrimination complaint. He also submitted that two of the three alleged detriments are also detriments being considered under the whistleblowing detriment complaint. In respect of time, Mr. Wood submitted that this was just one of the factors to consider, and an application to amend can be determined subject to time being determined at a final hearing.[35]Mr. Wood submitted it was not possible to include the automatically unfair dismissal complaint within the ET1 as the Claimant remained employed at that time. He submits the protected disclosures relied upon are already pleaded, and therefore there is no need for a new area of enquiry in this respect. He submits that there would be greater prejudice to the Claimant should the automatically unfair dismissal claim not be allowed, as he has an arguable case that he has been unlawfully dismissed and this would entitle him to compensation that outweighs any inconvenience to the Respondent.[36]In general, Mr. Mitchell submitted that the Respondent would suffer greater prejudice by the application being granted, than the Claimant would by it being refused, as it would incur further cost, a need to submit a further amended response and would likely increase the number of witnesses for the final hearing, being two witnesses involved in the decision making process. He submitted that the length of the final hearing may be impacted, but did not set out any specific detail on this. Mr. Mitchell also made reference to the fading of memories and that the Respondent had not been given the opportunity to preserve evidence.[37]I considered each amendment applied for separately. Of general consideration, in relation to each amendment application, I noted that the claimant was a litigant in person in the early stages of the litigation process and that it was through no fault of the claimant that the case management preliminary hearing did not take place until 5 September 2022.[38]I also noted that the final hearing is not due to take place until 5 September 2024. Victimisation complaint[39]I have considered firstly the application to add a victimisation complaint.[40]As noted above, the victimisation complaint relies on two alleged protected disclosures that allegedly took place on 19 October 2020. This is set out in the draft List of Issues.[41]Nature of amend. I considered the ET1 as a whole, and compared this against the application to amend.[42]The ET1, at box 8.2, states: “Racial abuse plus threats. Letter in substantiastion [SIC] of racial comment from line manager plus I had spoken to line manager regularly regarding all racial issues/threats/abuse and statements directed at me. Failure to show duty of care to me whilst suspended since October 21st 2020. Left without help and or advise or communication by anybody from Thames Water. Mental health and physical wellbeing has suffered during the extensive duration whilst waiting to find out a response to my workplace greivence [SIC] of racial abuse and threats”[43]Although not entirely clear, and no names or dates are provided, I do consider that it is discernible from the ET1 that the Claimant had raised concerns with his employer about treatment related to race, therefore done something that may potentially amount to a protected act, within his ET1.[44]The Claimant seeks to amend his claim to include four alleged detriments. The draft List of Issues sets out clearly and concisely the three alleged detriments. I will not repeat them in full here, but note that they provide the names and dates of those allegedly involved. The ET1 references the Claimant’s suspensions, lack of contact and delay, and although the precise detail of the alleged detriment is clear from the draft List of Issues, I consider that the basis of detriment claim flowing from raising concerns about detrimental treatment is within the scope of the ET1.[45]I consider the victimisation amendment in relation to the three alleged detriments in the List of Issues to be a matter of relabelling what was already within the ET1. I also kept in mind that when dealing with litigants in person, the Tribunal as a rule adopts a generous approach, and consideration of the ET1 as a whole is required.[46]The Claimant also relies on his dismissal as an act of detriment. As this is accepted as something that falls outside of the ET1, I have set out my conclusions in this respect alongside those relating to the automatically unfair dismissal complaint below.[47]Time limits. As I have determined that the information regarding the victimisation complaint, save for the dismissal, is within the ET1. However, it is noted there may need to be general determination of time limits at the final hearing, subject to clarification on the respondent’s position.[48]Timing and manner of application. I noted that the Claimant had contacted ACAS and believed that he had added to his claim via a telephone call to the Tribunal. However, an application to amend was only formally made on 17 February 2023.[49]The balance of injustice and/or hardship. The Claimant took steps to contact ACAS and clearly thought he had done what he needed to do to add a complaint.[50]This is a key consideration, although the Respondent submits it will be more prejudiced by granting the application than the Claimant would be if were the application was refused, I did not consider this to be the case. This is a claim where there are multiple heads of claim.[51]All of the persons cited in relation to the alleged victimisation complaint appear in respect of the whistle blowing detriment complaint, which relates to matters in a similar timeframe, namely Mr. Pillai, Mr. Duncan, Mr, Fenner and Ms. Crowder. Further, alleged victimisation detriments (b) and (c) in the draft List of Issues are very similar to the alleged whistleblowing detriments (e), (f) and (g). The Respondent will already need to deal with such matters, and there appears to be considerable overlap.[52]Accordingly, I do not consider there would be a need for significant additional time at the final hearing as the alleged detriments overlap with the whistleblowing detriment complaint and the Tribunal will need to consider these matters in any event, albeit different legal tests apply.[53]Further, the Respondent submitted an amended response on 4 April 2023, which already appears to deal with elements of the victimisation complaint. On balance, I consider that not permitting the application in relation to the victimisation complaint as set out in the draft List of Issues and where there are identifiable matters within the claim form would cause more prejudice to the Claimant than the Respondent.[54]On balance, having considered all of the above and keeping in mind the overriding objective I have decided that the application to include a victimisation complaint as set out in the draft List of Issues should be permitted and this will continue and form part of the issues for determination at the final hearing. Automatically unfair dismissal complaint[55]I next considered the application to add an automatically unfair dismissal complaint.[56]As above, I considered the ET1 as a whole, and compared this against the application to amend.[57]Box 8.1 of the ET1 states “Whistleblowing on Covid and Health and Safety Issues”. Further detail was set out in box 8.2, but this is brief and the basis of the claims is difficult to discern, hence the requirement for the Claimant to provide further information.[58]The draft List of Issues sets out that the Claimant alleges he made 5 protected disclosures. However, it does not reference an automatically unfair dismissal complaint, indeed it would not have been possible to do so as the Claimant was not dismissed for some months after the presentation of his ET1.[59]Nature of amend. The original ET1 only contains a whistleblowing detriment claim. It cannot have contained an unfair dismissal complaint as the Claimant was still employed at the time of presentation of the ET1. Mr. Wood accepts that an automatically unfair dismissal complaint is a new head of claim.[60]Time limits. Time limits are a factor that should be considered, but an application can be permitted pending resolution of time limits at a final hearing. It is noted that, based on the Respondent’s Amended Grounds of Resistance, that there are other time limit issues for determination at the final hearing in relation to the race discrimination, harassment and whistleblowing detriment complaints.[61]Timing and manner of application. I consider that the proper date of the application to amend was 17 February 2023. However, following the case management preliminary hearing on 5 September 2022 the Respondent was on notice that the Claimant believed he had brought an unfair dismissal complaint. The Claimant appears to have spoken with ACAS regarding submission of a further claim and considered that he had done what was needed in August 2021 to bring a further claim.[62]The balance of injustice and/or hardship. As noted above, the consideration of respective prejudice is key. The Respondent has been on notice of an unfair dismissal complaint since the case management preliminary hearing on 5 September 2022. Further, as noted above, the Respondent submitted an amended response on 4 April 2023, which already appears to deal with elements of the Claimant’s dismissal, thus indicating information in this respect is available. The Claimant was hoping for support from his trade union in the early days of this litigation, but this did not transpire and the Claimant is a litigant in person[63]On balance, considering that the only additional consideration for the Tribunal and the parties, if the application is granted, is whether or not the principal reason for the Claimant’s dismissal was because he made one or more protected disclosure, I conclude that the prejudice to the Claimant would be significantly more as it would deny him the ability to consider such a complaint. The case is already listed for 8 days, and given that the Amended Grounds of Resistance sets out some detail regarding the Claimant’s dismissal, and noting that no specific submissions were made in regard to difficulties with calling witnesses, I have concluded that the application should be granted as the Respondent has not demonstrated any real prejudice in this respect.[64]I deal here also with the allegation of dismissal as victimisation, and for the same reasons as set out in the paragraph above, I have permitted this. The only additional enquiry is in relation to the reason/s for dismissal.[65]Refusing the applications, in my view, would cause significant injustice and prejudice, to the Claimant.[66]On balance, having considered all of the above and keeping in mind the overriding objective I have decided that the application to include a victimisation dismissal complaint as set out in the Amended Particulars of Claim and an automatically unfair dismissal complaint should be permitted and these will continue and form part of the issues for determination at the final hearing. JUDGMENT on PRELIMINARY HEARING The employees of Clancy Docwra Limited, Mr J Duncan, Mr Sayers and Mr Haws were not acting as agents of the respondent. The claims of harassment, direct discrimination and subjected him to a detriment on grounds of making a protected disclosure against the respondent based on their actions are dismissed.
Preliminary
[1]The claimant alleges, in his claim, that three employees of Clancy Docwra Limited Mr J Duncan, Mr Sayers and Mr Haws, committed acts of harassment, direct discrimination and subjected him to a detriment on grounds of making a protected disclosure against him [68-83].[2]The Preliminary Hearing has been listed to consider whether these individuals were acting as agents of the respondent.[3]The Tribunal heard evidence from the claimant and Mr Peter Leeman, Head of Commercial and Facilities at the respondent. There was a bundle of documents to which reference will be made where necessary.
Findings
[1]The claimant commenced employment with the respondent on 17 August 2020, he worked as an inventory operative. He was suspended pending an investigation on 22 October 2020. The suspension was lifted on 12 April 2021 but because of the claimant’s ill health, he did not return to work until 26 April.[2]The site at which he primarily worked had been the subject of a Transfer of Control of Premises (‘TOCOP’) which is more fully described later.[3]Also working on that site were, Mr J Duncan, Mr Sayers and Mr Haws who were employees of Clancy Docwra Limited (‘Clancy’). They were not employed by the respondent.[4]The respondent contracts out its services through a tender process and in 2014-2015 there was such a tender process. It was a formal process that took approximately 9 months. There were 5 bidders. When deciding to whom to award the contract, the respondent considered a wide range of factors including the bidder’s ability to meet standards in respect of Health and Safety, customer experience, value for money, people and teams, collaboration, technical capability, innovation and sustainability. In addition to requiring bidders to provide information on leadership biographies, case studies, Health and Safety, technical questions and commercial proposals, the bidders were also subject to behavioural interviews and workshops and organisational alignment tests.[5]As a result of this tender, KCD was awarded the contract on 2 April 2015 and they entered into an agreement. The relationship between the respondent and KCD is set out in the Alliance Contract for Infrastructure Alliance dated 29 January 2015 [146- 200].[6]The contracting parties are the respondent and an unincorporated joint venture, Kier Integrated Services Limited (‘Kier’) and Clancy. The combination of Kier and Clancy is known as KCD. KCD takes its directions from the Agreement.[7]KCD are not an employing entity, but the constituent organisations such as Clancy and Kier are. Most individuals working under the KCD umbrella are employed by Clancy but some members of management are employed by Kier.[8]The background of the Agreement [at A, B and C–150] delineates a boundary between the two parties, the respondent is recorded as owning and operating certain water and wastewater facilities and distribution networks pursuant to the agreement and requiring certain works to be done. The Alliance Members, Kier, Clancy, J Murphy and Morrison are identified as offering specialist expertise in relation to such matters and that the respondent may wish to appoint them to carry out such services and works.[9]The contract [185 at 12.1] states that the Alliance, through its own actions, cannot cause the respondent to be responsible for a breach of contract that the respondent had made with a Third Party, so the Alliance cannot affect the respondent’s legal relationships with others.[10]The contract explicitly rules out the creation of any agency relationship between the Parties [189 at 37.4].[11]Clause 9.8 [184] says that Alliance members agree to ensure that all behaviour standards set out in the contract manual were observed by all of its employees and supply chain members.[12]An issue with the respondent’s assets will be identified through a customer reporting it to the customer centre, for example, leaking water. Alternatively, an issue may be identified by a separate contractor responsible for leakage direction. Regardless of how the issue is identified the process is the same. The respondent issues ‘Service orders’ for work which include a number, usually hundreds, of jobs for KCD to carry out. This might include the repair and maintenance of water pipes in South London. The details of each specific job will be assigned to KCD through the respondent’s ‘Work Management System’ which records and assigns all repair and maintenance work. KCD are required to travel to the site of the reported issue, review the location and where leaks or other problems are identified, fix the issue.[13]Generally, KCD are given a wide degree of freedom to operate and provide services in the manner it chooses so long as it conforms with the Agreement. For example, the respondent does not have any input as regards who attends the site, or when, provided the jobs are done within the agreed time frame. Once the respondent has issued the service order with the jobs included, it is left to KCD to ensure that the job is done.[14]When the Alliance was first formed in 2015, there was some overlap in reporting lines and supervision. However, by 2020, this was not the case. Employees of Clancy were instructed and supervised by other employees of Clancy. Similarly, the respondent’s employees were instructed and supervised by the respondent’s management. Clancy employees have Clancy email addresses, whereas Thames employees have Thames email addresses. Similarly, Thames employees wear Thames identity badges which Clancy employees do not. Clancy employees have Clancy identity badges identifying as them working for Clancy.[15]Save for Key Persons and Mr Duncan, Mr Haws and Mr Sayers were not such key persons under the Agreement, the respondent does not have any control over who Clancy employ and are not involved in their recruitment or training. The respondent does require all staff (whether the respondent’s or otherwise) who are working on the site to have completed all the relevant Health and Safety training. This is because the respondent has a legal obligation as ultimate owners of the site to ensure it is meeting its legal obligations as regards health and safety on site.[16]On the site the claimant primarily worked, the respondent carried out a TOCOP of the area owned by it that KCD operated from 19 March 2020, this is known as the TOCOP Area. The effect of this TOCOP was to provide KCD with operational ownership of an area of land owned by the respondent. KCD are permitted the use of the respondent’s depots and materials for co-ordination purposes so they can deliver services under the Agreement. Whilst the respondent had the power to terminate the transfer at any time under the Agreement, all the operations in the TOCOP area was KCD’s responsibility.[17]The TOCOP area is different to the rest of the Thames sites. KCD had their own signage and branding in the TOCOP Area and their cabins are different colours, they are red and green which are Clancy’s company colours. Within the TOCOP area, KCD had their own cabins. The respondent had one cabin within TOCOP area which was cream. The TOCOP area was left to KCD to manage. The respondent was not responsible for anything to do with the provision of management of PPE, tools or consumables, fleet, plant, signing, lighting and guarding or management of waste skips. The responsibility was with KCD.[18]On occasion, Thames employees would enter the TOCOP area, but this would generally be for a specific purpose such as speaking to a supervisor in respect of a specific job. However, Thames employees would be able to identify that the TOCOP Area was operated by KCD separately to the rest of the Thames site given the signage.[19]The claimant worked at the TOCOP site daily as an inventory operative; the various pipes and fittings that he would have dealt with were stored in storage containers on the TOCOP site. A Clancy employee would have come to the claimant who managed the inventory of stock to ask for specific parts to enable them to do repairs or maintenance work, but Thames and Clancy had separate roles and responsibilities because specific projects and responsibilities were outsourced to the Alliance under the agreement. Submissions[20]The Tribunal heard oral submissions from both parties with written submissions from the respondent.
Law
[21]Section 109 of the Equality Act states: -(1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.(3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval.[22]The section was considered in Ministry of Defence v. Kemeh [2014] ICR 625 CA. The claimant was a cook in the British army who brought a claim of discrimination against the Ministry of Defence as he said he was the victim of racially abusive comments. There were two comments. One, irrelevant for present purposes, was made by an employee of the Ministry of Defence. The other was made by a Ms Ausher who was a civilian butcher. Ms Ausher was employed by Sodexho who was a subcontractor of Serco. Serco entered into a commercial contract with the Ministry of Defence to provide facilities management. Under that contract it was agreed that those working in the butchery would aid the non-commissioned officer in charge of butchery and carry out tasks as directed by that officer. It was in this context that Ms Ausher made the comment to the claimant.[23]The Court held that: -a. Section 109 (2) only applies where the agent discriminates in the course of carrying out the functions he is authorised to do, but it does not matter whether the principal knew or approved of what he did [paragraph 11 and S.109 (3)].b. It is not essential that the putative agent should have authority to bind the principal contractually, but it is not enough that someone who is employed by a contractor performs work for the benefit of a third party employer [paras 38-40].c. The common law legal concept of agency cannot be disregarded [paragraph 46].[24]The Court stated that being able to veto the presence of an individual was a ‘limited degree of control’ and that it came ‘nowhere near constituting an authorisation by the Ministry of Defence to allow Ms Ausher to act on its behalf with respect to third parties’ [para 41]. The Court of Appeal went on [paragraph 43]: - “I would respectfully agree that the fact that someone is employed by A would not automatically prevent him from being an agent of B, and I would not discount the possibility that the two relationships can co-exist even in relation to the same transaction. But in my judgment there would, particularly in the latter case, need to be very cogent evidence to show that the duties which an employee was obliged to do as the employee of A were also being performed as an agent of B. It is in general difficult to see why B would either want or need to enter into the agency relationship. That is so whichever concept of agency is employed. There is a complete lack of such cogent evidence here.” DISCUSSION and DECISION[25]The Tribunal sought to apply the guidance in Kemeh.[26]The evidence of Mr Leeman derived from his responsibility for contract management at the respondent and for most operational contracts. He also manages several contract managers who dealt with third party contractors, such as Clancy. The Tribunal accepted his description of the nature of the contract and relationship between the relevant parties. To be fair to the claimant, he professed no such knowledge.[27]Mr Leeman described how the site should have appeared but he had not seen it. By reference to the respondent and KCD, he said that “The relationship was pretty adversarial at that time”. The nature of the relationship was confirmed by what the claimant said at the investigatory meeting, see, for example: -a. [211] – where Mr Butler repeatedly refers to the independent actions of KCD who failed to contact him for 6 days and sent workers home without contacting anyone at Thames Water denoting separate organisations with separate reporting lines;b. [212] – the interviewer talks about Mr Duncan not wanting his staff to do it;c. [212-.214] – where the claimant complains that a KCD employee had his number and that she should have gone to her supervisor and not ring directly;d. [226] – there are repeated references which illustrate that the claimant perceives KCD as a totally different entity and is communicating with his employer to essentially keep him away from them;e. [227] – the claimant emphasises that they are not Thames Water employees, but separate contractors.[28]The fractious nature of the relationship is further borne out in the further particulars provided by the claimant which have become lengthy issues [68-83]. That the relationship was poor does not prevent an agency being created but taken in the context of the other evidence, it points firmly away from creating an agency.[29]The tendering process and contract demonstrate that the respondent and the members of the KCD were arm’s length organisations negotiating a commercial contract.[30]The contract itself contains clauses inconsistent with the creation of an agency relationship [185 at 12.1 and 189 at 37.4] which is a relevant factor.[31]The way the contract operated showed clear boundaries in that the respondent would use the subcontractors such as Clancy to do work for which it was responsible. The members of the Alliance – and by extension its employees - would have significant control of those tasks separate from the respondent. Aside from key persons (which Mr Duncan, Mr Sayers and Mr Haws were not) the respondent had no control over who to appoint. Moreover, in terms of removal whilst the respondent could require removal it was for KCD to investigate.[32]On the site where the claimant worked, KCD had operational control of the site, there was different branding, different coloured cabins and the respondent were not responsible for anything to do with the provision of management of PPE, tools or consumables, fleet, plant, signing, lighting and guarding or management of waste skips. Both witnesses agreed that the contractor used the respondent’s vans which were separately identified to the contractor.[33]Mr Leeman said that the general practice at the respondent was that its employees are told that if they have any issues, they should go to their Line Manager to discuss these. Therefore, when the claimant joined the respondent, Mr Leeman’s view was that he would have been told that if he had any issues, he should go to his own line manager (who was an employee of the respondent). He was not aware what had taken place at induction but while the Tribunal was prepared to accept that the induction was of a poor quality as described by the claimant [33], he was not told to report to Mr Duncan. Where the claimant now claims to be reporting to Mr Duncan [paras 4 and 5 of witness statement], his evidence was not accepted. The Tribunal did not accept that the reporting lines were not clear. He raised his various issues with his own line managers, Mr Rejeesh Pillali and Mr Fenner over time. The Tribunal does not accept that the claimant was told that Thames and KCD were the same entity.[34]The claimant plainly perceived KCD as a different organisation. He saw KCD employees, in particular Mr Duncan, as part of a distinct organisation. Whilst the claimant was prepared to complain about the alleged conduct of Mr Duncan to the respondent, it was KCD which carried out its own investigation [221, 222, 226]. The respondent merely had a right to require the removal of an individual [183, 9.5].[35]The claimant had interactions with Mr Duncan as a matter of necessity given the commercial arrangement between KCD and the respondent as he had been directed to do by the respondent. In his witness statement [paragraph 9], the claimant makes clear that in relation to his meetings with Mr Duncan, he was still directed by the respondent in how and when he should interact with Mr Duncan and apparently considered himself fully free to stop doing so when he wished to do so. The Tribunal did not accept the claimant’s evidence at paragraph 9 but it is indicative of his attitude.[36]The requirement to align with the values and standards of the respondent is merely normal commercial practice and in the case of Health and Safety, a legal requirement.[37]The Tribunal heard little evidence about Mr Sayers and Mr Haws but took the view that if Mr Duncan was not an agent of the respondent, Messrs Sayers and Haws were not either.[38]As the Tribunal has found that Mr Duncan, Mr Sayers and Mr Haws were not acting as agents of the respondent, the claims of harassment, direct discrimination and detriment for making a public interest disclosure based on that agency are dismissed.