Ms B Whitfield v Guys and St. Thomas’ NHS Foundation Trust: 2301668/2022

EMPLOYMENT TRIBUNALS

Case No 2301668/2022

Between

Ms B WhitfieldClaimant

Guys and St. Thomas’ NHS Foundation TrustRespondent

Before

Employment Judge Harley

In person for claimant

Mr Jackson (instructed by Counsel) for respondent

Date 16 May 2025

JUDGMENT

[1]The claimant was not an employee of the respondent at the relevant time.

[2]As she was not an employee at the relevant time her claim for Unfair Dismissal is dismissed as the Tribunal has no jurisdiction to determine it.

[3]As she was not an employee at the relevant time her claim for Automatic Unfair Dismissal is also dismissed as the Tribunal does not have jurisdiction to determine it.

[4]Her complaint of unauthorised deductions from wages is not well-founded, and is dismissed.

[5]Her claim for equal treatment under the Agency Workers Regulations 2010 was withdrawn and is dismissed. JUDGMENT with full reasons was delivered at the end of the hearing on 16 May 2025. The Judgment was sent to the parties on 23 May 2025. Written reasons have been requested by the claimant in accordance with Rule 60 of the Employment Tribunals Rules of Procedure. The following reasons were provided to the parties on the day. Page references refer to pages in the agreed bundle.

REASONS

[1]This case was listed for a five-day hearing in person before a panel. The claimant represented herself as a litigant in person. The Respondent (h/f GSTT) was represented by Mr Jackson under instruction from DAC Beachcroft. We are grateful to Ms Whitfield and Mr Jackson for their assistance and courtesy during the hearing.

[2]We were supplied in advance with an agreed 517-page electronic bundle plus a bundle of 5 witness Statements running to 54 pages. We were in addition supplied with paper bundles. At the outset of the hearing the respondent supplied its skeleton argument to the claimant and the tribunal. It contained a request to consider determining particular questions as preliminary matters but as a result of discussions between the parties this was not pursued.

[3]In terms of preliminary matters the claimant confirmed that she was withdrawing her claim in respect of Agency Workers Rights. The respondent applied for this to be dismissed on withdrawal, and this Order was made by the Judge.

[4]The issues had previously been identified in a CMO dated 26 Feb 24 from Judge Self. This was during the previously listed but aborted three-day listing of this case. We confirmed at the outset that the remaining issues remained correct, and having removed claim (d) dispensed with issues numbered 2, 4, 21, 22 and 23 from the CMO list. The remaining claims concerned: a) Ordinary Unfair Dismissal; b) Automatically Unfair Dismissal (section 103A Employment Rights act 1996); c) Unauthorised Deduction from Wages.

[5]In summary, the claimant’s case was that at the point at which her work with the Trust ended in late 2021, she was a Trust employee and that she had as a result of the manner in which this engagement had come to an end been unfairly dismissed. The Trust dispute this, asserting that she was in fact a worker, employed by the StaffBank resource which is part of the Trust and in the alternative if she was an employee she did not fulfil the basic requirement for continuity of service of two years before being able to pursue a claim of unfair dismissal.

[6]The claimant in addition claimed that she had been subjected to an automatically unfair dismissal, on the basis that she had made a series of protected disclosures flagging up health and safety breaches. This was denied by the trust, which asserted that the claimant’s placement had come to an end because other colleagues were returning to work and the need for her assistance had diminished.

[7]Fundamental to the success of these claims is the claimant’s employment status. This was highlighted in her Particulars of Claim accompanying her ET1, and was dealt with in some detail in response in the amended grounds of resistance dated 26 July 2023 from the Respondent where the Tribunal’s jurisdiction to consider this was challenged. The parties addressed this issue throughout the proceedings.

[8]Finally, the claimant argued that she had suffered an unauthorised deduction of wages. This was on the basis that the rate for the band at which she was engaged and paid was less than the rate to which she was entitled, by reference to full time staff in the same band. Again, the Trust disputed that this was correct – that she had been engaged by agreement to do work at an agreed rate.

[9]The remaining issues from the aforementioned Case Management Order were as follows1: Time limits 1. Were the following complaints presented in time for the purposes of the Employment Rights Act 1996 (ERA)?:a. Unfair dismissal – section 111;

b. Unauthorised deductions from wages – section 23;

[1]We have retained the numbering for ease of reference and crossed through the issues relating to the dismissed matters.

[3]For the claims under ERA, the Tribunal will need to consider:a. What was the effective date of termination of the Claimant’s contract?

b. Did the other acts or allegations occur more than three months before the presentation of the claim (in addition to any applicable extension for ACAS Early Conciliation)? i. Day A was 7th March 2022; ii. Day B was 17th April 2022;

c. Was the claim made to the Tribunal within three months (in addition to any applicable extension for ACAS Early Conciliation) of the end of that period?

d. Was it reasonably practicable for the Claimant to have presented her claim within the time limit as per the ERA? i. If not, has the Claimant presented her claims within a further period that the Tribunal considers reasonable? DELETED Protected disclosures

[5]Did the Claimant make protected disclosures as follows:a. Orally on 10th March 2021 the Claimant stated to Dr Stacey John-Legere that Dr Gunasuntharam was not signing off her medical reports in a timely fashion (some over a year old) and the failure to do so was affecting onward referrals to providers such as CAMHS and thereby delaying treatment.

b. By email on 11th March 2021 at 1019 to Marcia Brown and Fergal O’Reilly.

c. From 11 March 2021 until the date of termination did the Claimant make oral representations in weekly team meetings with Marcia Brown that Dr Gunasuntharam was not signing off her medical reports in a timely fashion (some over a year old) and the failure to do so was affecting onward referrals to providers such as CAMHS and thereby delaying treatment.

d. By email at 0931 to, inter alia, Marcia Brown and Dr Gunasuntharam on 6 October 2021

e. By email at 1331 on 16 October 2021 to Marcia Brown and Dr Gunasuntharam g. By email to Dr Stacey John-Legere at 0224 on 25 October 2021.

f. Orally to Marcia Brown on 21st October 2021 the Claimant stated that Dr Gunasuntharam was not signing off her medical reports in a timely fashion (some over a year old) and the failure to do so was affecting onward referrals to providers such as CAMHS and thereby delaying treatment.

[6]Were these (or any of them a disclosure of information)?

[7]Did the Claimant believe that in making those disclosures (or any of them), that it tended to show that the conduct complained of had been, was or was likely to damage the health and safety of patients.

[8]Did the Claimant believe that making the disclosure(s) was/were in the public interest and was that belief reasonable? Automatically Unfair Dismissal (s.103A ERA 1996)

[9]Was the principal reason for dismissal that the Claimant had made one or more protected disclosures? Unfair dismissal

[10]The Respondent accepts that it terminated the Claimant’s engagement, and so if she was an employee, she was dismissed.

[11]Was the Claimant continuously employed for 2 years prior to her dismissala. If so, the Respondent contends that the principal reason for dismissal was some other substantial reason of a kind justifying dismissal, namely that two other employees for whom the Claimant was cover, returning to their normal working hours, or alternatively,

b. Redundancy

[12]If the reason was some other substantial reason of a kind justifying dismissal, did the respondent act in all the circumstances in treating that as a sufficient reason to dismiss the claimant?

[13]If the reason was redundancy, did the respondent reasonably act in all the circumstances in treating that as a sufficient reason to dismiss the Claimant. The Tribunal will usually decide, in particular, whether:a. The respondent adequately warned and consulted the claimant;

b. The respondent adopted a reasonable selection decision, including its approach to a selection pool;

c. The respondent took reasonable steps to find the claimant suitable alternative employment;

d. Dismissal was within the range of reasonable responses.

[14]It should be noted that the Claimant contends that the decision makers in terms of her dismissal were Marcia Brown and/or Dr Gunasuntharam. Remedy for unfair dismissal

[15]Does the claimant wish to be reinstated to their previous employment?

[16]Does the claimant wish to be re-engaged to comparable employment or other suitable employment?

[17]Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

[18]Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just. a. What should the terms of the re-engagement order be?

[19]If there is a compensatory award, how much should it be? The Tribunal will decide:a. What financial losses has the dismissal caused the claimant?

b. Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

c. If not, for what period of loss should the claimant be compensated?

d. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? i. If so, should the claimant’s compensation be reduced? By how much?

e. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? i. Did the respondent or the claimant unreasonably fail to comply with it? ii. If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

f. If the claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct? i. If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

g. The statutory cap of fifty-two weeks’ applies?

h. What basic award is payable to the claimant, if any?

i. Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? Unauthorised Deductions of Wages

[20]Did the respondent make unauthorised deductions from the claimant’s wages and if so how much was deducted?a. The Claimant’s case is that she was paid £11.65p/h and ought to have been paid (as a band 4 employee) £15.31 p/h throughout her employment from 29 October 2019 until the end of her contract.

b. The Respondent’s case is that the Claimant was paid in accordance with the banding and terms for the roles she accepted from time-to-time.

[21]DELETED

[22]DELETED

[23]DELETED10. The parties were offered reasonable adjustments, but none were required. We confirmed a proposed timetable at the outset of the hearing, and the panel had the first morning to read the papers. During the hearing the Judge offered the claimant guidance as to how to appropriately deal with cross examination of the respondents witnesses, focusing on issues. The Judge made clear the requirement to put her case to the witnesses. She confirmed that she had had assistance from her brother-in-law with preparing her case, who she later confirmed was a Solicitor.

11. The claimant’s case was opened on the afternoon of Day 1, she adopted her statement and made two amendments to it. The Judge asked her to pay close attention to the questions being asked and to answer those, and that she would have the opportunity to revisit points arising in re-examination. The Judge explained re-examination to her and permitted her to take a clean notepad and paper and pen to capture any points she wanted to return to in re-examination, which she did. The claimant called no other witnesses.

12. At the outset of Day 2 the panel outlined a number of documents which they had noted from the agreed bundle for which they would like to ask questions of the claimant, arranging to do that at an opportune moment later in the week. Owing to timing concerns we ultimately limited this to questions concerning three documents. The Respondent then opened its case, with evidence from Dr JohnLegere (employed by the Respondent as Consultant Community Paediatrician and at relevant points Joint Head of Service for Southwark), and Ms Parker (Head of Temporary Staffing, leading the StaffBank - an internal Trust resource which provides temporary staff), both of whom were cross-examined by the claimant. A third witness was called but owing to overruns in the claimant’s questioning that witness was rescheduled for day 3. The Judge had to intervene at points to formulate relevant questions for witnesses and to ensure the claimant put her case. At one point it appeared that the claimant was seeking to pursue a new argument regarding the status of her permanent contract in Feb/March 2018. The respondent having raised an objection, the claimant confirmed - after an indication from the Judge - that she was not seeking to pursue this. The Judge directed that a screenshot of a registration record referred to by Ms Parker be provided for examination by the Tribunal. This was subsequently provided after a further request from the clerk on the morning of Day 4.

13. Day 3 opened with an application by the respondent to admit an email from the claimant to a former manager. This was opposed initially by the claimant, but in the event the claimant agreed to admit the email, copies of which were provided to the Tribunal. The claimant proceeded to cross examine Mr Wilkinson (at the time Deputy General Manager of Children’s Community Services, seconded from another trust, but who now holds this role substantively) and Ms Brown, (who during the period under consideration was initially Team Leader in Children’s Community Services, and was later from Dec 2019 Service Manager in the same Directorate, based at Sunshine House (SSH). Owing to timing concerns we established time limits for cross-examination on day 3 on which we allowed some leeway in the event. The afternoon saw the parties make submissions. All witnesses on all days were asked questions by the Tribunal. We are grateful for their time. Day 4 and Day 5 were devoted to the tribunal conducting its Deliberations in Chambers and drafting judgment. Facts

14. We have found these facts on the balance of probabilities, on the basis of the evidence we heard, statements we reviewed and materials in the agreed bundle. For the avoidance of doubt, where there is a dispute over a fact and we have stated a finding, that is our decision as to that issue. We heard and considered a good deal of evidence, not all of which has proved relevant and so we will not refer to it all here.

15. The claimant was employed by GSTT under a permanent employment contract from 13 Sept 2017. She had, prior to that employment, worked for the NHS as an agency worker and via NHS Bank arrangements. The permanent employment contract was issued under cover of a letter from August 2017 and requested that the claimant print and sign a copy to be scanned or posted to the Trust. No copy of a signed contract has been found but it is not in issue that the claimant accepted and worked under this contract until her resignation. She was employed as a band 4 Medical secretary. The contract defined her annual leave entitlement, pay, place of work, contracted hours, pay progression and various other provisions, running to 42 clauses. It defined the notice period for a Band 4 employee as being six weeks.

16. The contract included references to the possibility of working for the StaffBank and incorporated detailed references to StaffBank conditions. The contract indicated that: “registration with the Staff Bank is optional. Should you decide to register to work via the Trust’s Staff Bank, there is no obligation on the Trust to offer you work once you have registered and you have the right to refuse any work offered to you.”

17. It included references to the variable terms applying to each assignment under the StaffBank stating: The following terms will vary according to the particular assignment that you have accepted: The start date and duration of assignment, The work required of you in the assignment, The main location of the work, The hours of work, The grade of the role. The terms will be described to you when you are offered the assignment. Payment arrangements Remuneration for Staff Bank assignments is paid on a weekly basis through a BACS payment into your nominated bank / building society account. Payments are made according to hours and band submitted by your manager or appropriate authorised signatory on an appropriately finalised e-timesheet. The Staff Bank Office will inform you of payment arrangements and deadlines for e-timesheet finalisation. Grade / Bank and pay scale for each assignment Your grade / band and therefore remuneration for each assignment will be determined according to the work that you are required to carry out during that period. The manager will confirm the grade / band of the assignments prior to the booking. There is no incremental pay progression on Staff Bank pay rates. Work Your work for a particular assignment will be described to you when you are offered the assignment by the Staff Bank Bookings Team. During an assignment you may be asked to undertake work not originally specified which may be reasonably required and commensurate to the grade allocated to that assignment. You should not undertake work beyond your level of competence or professional registration. Equally, during periods when members of staff or other workers are absent, you may be asked to undertake different work to that which you might normally perform, commensurate to your grade. During an assignment you are expected and required to be flexible and move to another site, ward or department as directed by a manager. You may be required to work at any Trust site.

18. In addition the claimant was sent a hard copy letter to her home address confirming her employment dated 19 Oct 2017 a copy of a detailed Job Description for her role together with a copy of the StaffBank Registration Agreement for Temporary Workers. The first paragraph of the agreement provides as follows: Guy’s & St Thomas’ StaffBank provides workers to the Trust. Once you register, StaffBank can offer you temporary work with the Trust. There is no obligation on the StaffBank to offer you work once have registered and you have the right to refuse any work offered to you. Accordingly this registration agreement does not constitute a contract of employment between you and the Trust. Under paragraph 3 (Pay Arrangements) it provides: The Trust uses an electronic temporary staffing system (Allocate Health Roster) for all bookings and timesheets. The hours that you work will be finalised (signed off) on line by the ward / dept staff. As long as your worked hours are correctly finalised by midnight each Wednesday, you will be paid the following week on Thursday. Pay days take place every Thursday (with the exception of weeks that are followed by a bank holiday)…. Timesheets must only be finalised by an appropriate timesheet authorised signatory at a grade higher than the person who has undertaken the bank work. Bank workers are not permitted to finalise their own shifts

19. The claimant resigned from this role in early 2018. Her resignation date was originally scheduled for 9 March, she requested it to be brought forward, as referred to in an email undated, but in a chain requiring it to have been sent on either 21 or 22 Feb 2018. The last email from the claimant to her manager on the point in the chain is dated 23 Feb, (pg. 155) where she ask him to confirm that this (i.e. the bringing forward of the resignation date) can occur before she leaves today (23 Feb). Her resignation took effect on 1 March 2018.

20. In the lead up to the end of her permanent role, she had a discussion with Ms Brown regarding the possibility of joining the staff bank in order to take future roles. StaffBank is a temporary staffing resource run by the trust and comprising mostly but not exclusively existing substantive Trust staff. The claimant’s manager Mr Watson confirmed he had contacted StaffBank on her behalf and signed her up before her permanent role ended. There was a process by which managers could directly register substantive staff on StaffBank via a process on the electronic HR system. Doing this led to staff being placed on the bank system after a further triage process was conducted by StaffBank staff.

21. We were shown agreed screenshots pertaining to the creation of the StaffBank registration for the claimant dated 1 March 2018. The claimants registration according to the record was effective from 26 Feb 2018. While the claimant says she did not recall asking Mr Watson to approach StaffBank, or to push to join StaffBank, and disputes having either a relationship with StaffBank, or having been registered with StaffBank, we are satisfied that as a result of this exchange and the records we have seen that she was registered with StaffBank from Feb 2018.

22. A further agreed email sent from the claimant to Mr Watson dated 18 May 2018 and with the subject line “Bank Staff” saw her asking the manager to email StaffBank – the claimant supplying their email address to him - and asking him to intercede for her with them as they were only offering her band 2 and 3 roles, whereas she worked previously in the Trust as a Band 4 and 5 – which were higher paid grades. The claimant was actively engaging with the StaffBank at this point and the only logical conclusion was that she was aware and accepted that she was registered with StaffBank at this time. 23. The claimant subsequently worked for the Trust for three separate assignments: - 3 July to 26 July 2018: at the Mary Sheridan Centre as a Band 3 Admin; - 31 July 2018 to 19 December 2018: again at Mary Sheridan as a Band 4 Medical Secretary; - 8 January 2019 to 4 November 2021: at Sunshine House in Southwark as a Band 4 Admin Medical Secretary. The focus of the case is on a period during the last of these assignments. While working in the second placement the claimant was required to fill out weekly timesheets in order to be paid, which she emailed to her manager who submitted them to the staff bank for payment (C statement para 10.) Turning to the last assignment period there were two separate engagements within the period which we must consider separately. 8 Jan 2019 – 12 Sept 2019.

Facts

[24]The Claimant worked for the SSH team from 8 Jan 2019 having agreed what was termed “the placement” with Ms Brown in Dec 2018. Ms Brown in correspondence characterised this as a “long term placement.” Ms Brown had two means of engaging staff – temporary staff via StaffBank, or substantive staff via recruitment conducted by the recruitment team. This engagement was on Ms Brown’s evidence was the engagement of a temporary member of staff via StaffBank. She arranged for the claimants payment via StaffBank by authorising payments on a weekly basis. The claimant was not subject to performance management, yearly appraisal or working to set yearly objectives.

[25]In the lead up to the engagement Ms Brown on 4 Dec 2018 asked the claimant if she could “…kindly start during week commencing 7th Jan 19 onwards. Will you cover your usual work schedule. Hours: Thursday 8:30-16:30? Your placement will be with Fergal's team (General Paeds), located on the 2nd floor, Sunshine House.” The claimant responded on the same date confirming the start date but asking “for a bit of flexibility, as my partner is recovering from a major operation. At the moment I have been working 8:30am-4pm Tuesday and Thursday and On Wednesdays 8:30am-6pm. I hope this will work for you.” Ms Brown responded confirming she was “happy to work around your suggested rota…” and saying “…this is a long term placement.”

[26]Ms Brown was previously aware of the claimant and, having identified her as someone to fill in while there was a shortfall of hours due to changes with permanent staffs’ working arrangements, she says that she engaged her via StaffBank. Ms Brown processed timesheets for bank staff employed in her team having been informed by the manager as to the hours worked, and whether there was an increase or decrease in those hours. The claimant is adamant that she was not a StaffBank worker during this period, and that she was not engaged via StaffBank. However the records provided show the claimant’s work via the StaffBank are included in the data (pg. 457-463 of the agreed bundle) and this was booked under a single cost code at the staff bank. Ms Brown made it clear that she had only two routes by which to employ staff – via recruitment for permanent staff, or StaffBank, and this was not a recruitment. We find as a matter of fact that that this was a StaffBank engagement.

[27]On 28 August 2019 (pgs.174, 175), C wrote to her then manager Mr OReilly, offering two weeks' notice to quit her position at SSH with last day being 12 September, and saying “please do give me a call if you need some random cover in the future”. (italics -Tribunal’s emphasis). He responded on 6 Sept saying “…we would almost definitely be able to offer you some kind of work if you wanted to come back for short term assignments” (Tribunal’s emphasis). On 12 September 2019 the claimant wrote to Ms Brown and Mr O’Reilly thanking them and the team for a gift voucher and “for having me here at SSH - I have really enjoyed working with you and the team and she closed by saying “please do call me whenever you need a bit of cover (Tribunal’s emphasis).” (Pg 175 of agreed bundle) 29 Oct 2019 – November/December 2021.

[28]On 7 October 2019 Mr OReilly wrote to the Claimant under heading “Hello” asking “If you have any odd days coming up where you'd be able to do Dict8 or referral processing work at Sunshine, please let me know. It's been a bit crazy here lately with X’s partner giving birth last week and Brenda being unfortunately unwell. I thought we'd last longer than a month without having to try and drag you back in but life comes at you fast”. The claimant responded on 24 October 2019 confirming “I'm back from travels and could come one day a week to do Dict8 if that works?“(all block italics – Tribunal’s emphasis). Meanwhile on 9 October 2019 the claimant wrote to Ms Brown saying she was out of the country “…working, but back next week before heading off to Paris. Fergal has mentioned how things are tight at work due to lack of staff. I am hoping to come back at some point in the next few weeks to assist (Tribunal’s emphasis) but wondered if it would please be possible for you to pay me as a band 5? I was a band 5 previously at MSC (Richard Guerny days) and given my qualifications, am technically a band 8. Thought would ask…” Ms Brown replied on the same date refusing the suggesting saying: ”…unfortunately, although we welcome your support we are unable to book your shifts under a band 5. However, we are really excited to have you back on board”.

[29]The claimant’s engagement actually commenced on 29 October 2019. The status of that engagement will be discussed below. The initial pattern agreed was for the claimant to work 1 day per week and her weekly working hours fluctuated throughout the period working between 0 and 5 shifts per week. (Pgs. 159-164). Ms Brown confirmed in evidence that employees requesting changes to their set working hours, had to be made by filling in and justifying a request on a Flexible Working Form. This was not the case for bank staff. She confirmed that the claimant was not subject during these engagements to performance management or annual appraisal or set objectives.

[30]Over the 105-week period there were, it was established, 10 weeks where the claimant was not engaged on an assignment. There were also breaks in service (more than one complete week running from Sunday to Saturday between each assignment) when the claimant was not working any assignment and was not on annual leave: these periods were: 7 to 18 November 2019 (1 week and 2 days); 18 December 2019 to 6 January 2020 (2 weeks and 2 days); 20 February to 2 March 2020 (1 week and 2 days); and 18 December 2020 to 3 January 2021 (2 weeks and 1 day).

[31]Around 24 Sept 2020 a complaint from a patient’s parent was received regarding typographical errors in a report concerning their child, issued in the name of the doctor for whom the claimant was producing reports. The complaint reached Dr John-Legere, and the doctor raised the issue with the claimant. Within days a universal process for the production and distribution was imposed with immediate effect, with the changes notified to the staff via email. Reminders were sent on 4 Nov 2020 and 18 Feb 2021.

[32]The claimant referred to oral and written disclosures which she had asserted contained information which in her view tended to show a risk to health and safety, arising from delays in signing off reports, processed by herself and her colleagues, following on from the doctor’s consultations with patients. We accept as a matter of fact that the claimant spoke with Dr John-Legere on 10 March 2021, in the doctor’s room in a conversation which the claimant herself characterised as “venting”, covered various issues in which she discussed topics of concern to her. The claimant also referred to having made representations at various team meetings from 11 March 2021 onwards to the effect that a doctor she supported was not signing off her medical reports in a timely fashion. The claimant in conversation with Ms Brown on 21 October 2021 stated that the same doctor was not signing off her medical reports in a timely fashion. In terms of written disclosures the claimant identified emails dated 11 March 2021 to Ms Brown and Mr O’Reilly; an email to Ms Brown and the doctor on 6 October 2021; an email on 16 October 2021 to Ms Brown and the same doctor; and by email to Dr Stacey John-Legere at 2:24am on 25 October 2021 as representing disclosures of information revealing risks to health and safety.

[33]At this time there were separate processes described by Dr John-Legere by which urgent actions arising from consultations were actioned. There was no identified actual or perceived risks to individual patients caused by the delayed production of these reports. We accept as facts that the conversations occurred and that the emails were sent. We will discuss the interpretation of these communications later in the decision.

[34]In the email of 25 Oct 2021 sent to Dr John Legere at 2.24am, and where she also raised allegations regarding Ms Brown, the claimant admitted to not following the specified procedure for producing and distributing the reports. On 28 October 2021 the service manager Ms Brown met with and dismissed the claimant indicating her last day of work would be 16 December 2021.Ms Brown cited financial constraints and that the claimant’s workload would now be divided among permanent members of the team. The claimant made a covert recording of the meeting without permission. During the meeting the claimant referenced ongoing issues concerning the production and sign off of medical reports by a doctor for whom she was providing support. The claimant’s actual last day working at the Trust was 4 November 2021.

[35]The claimant was assessed as unfit for work on 9 Nov 2021, and signed off work until 16 Dec 2021. On 15 November the claimant submitted a formal complaint running to 15 pages against Ms Brown, alleging allegations of bullying and harassment, and raising numerous issues regarding both her own personal experiences and the general culture at GSTT. This led to an investigation conducted by Mr Hudson (an HR consultant). The complaints were not upheld, with a final report being issued under cover of a letter dated 2 November 2022. The claimant submitted an ET1 to the employment tribunal marked as being received on 16 May 2022.

Law

[36]For reasons that will become clear, we have addressed the legal issues out of sequence from the order suggested by the list of issues. Law: Unfair Dismissal

[37]Section 94(1) of the Employment Rights Act 1996 (ERA 1996) provides that an employee has the right not to be unfairly dismissed by their employer. This right is subject to the qualifying period set out in section 108(1). Under section 108(1) ERA 1996, an employee must have been continuously employed for a period of not less than two years to be eligible to bring a claim for ordinary unfair dismissal. S 210 (4) ERA provides that any week which does not count for the purposes of computing continuous employment breaks any previously continuing employment.

[38]Before considering what constitutes unfair dismissal, there is the fundamental jurisdictional question to address. In order to successfully pursue a claim for Unfair Dismissal under s230 of ERA 1996 the claimant must establish she was an employee. In determining whether the claimant was an employee for the purposes of the Act the Tribunal must assess whether there existed a contract of employment—understood as a contract of service—and not merely a contract for services. The parties recognised this issue and addressed it throughout the proceedings.

[39]Central to this enquiry is the requirement of mutuality of obligation, which necessitates that both parties were bound by reciprocal duties: the claimant’s commitment to render their services when required, and the respondent’s corresponding duty to offer work on a consistent and predictable basis. The respondent contends that the claimant was engaged in a manner analogous to a bank worker, relying on the decision in PGMO Ltd v Revenue & Customs Commissioners 2to support the view that, in the absence of an enduring mutuality of obligation and regularity in work assignments, no employment contract could be said to exist. By contrast, the claimant asserts that a freestanding contract was individually negotiated with agents of the organisation, thereby establishing a distinct and continuous employment relationship.

[40]In evaluating these arguments, the Tribunal is required to consider the multifactorial test articulated in Autoclenz Ltd v Belcher3, which requires a realistic appraisal of the employment relationship beyond the mere written terms of contracts or correspondence. In this context, mutuality of obligation serves as a critical indicator: if the claimant was habitually required to accept work and the respondent was similarly obligated to provide it, then the necessary element of mutuality supporting a contractual relationship is satisfied. This analysis, which examines both the contractual provisions and the parties’ actual conduct, is essential in determining whether the employment status claimed by the claimant is legally sustainable.

[41]Considering the claimant’s case - section 230(2) of ERA 1996 provides that a contract of employment may be 'express or implied, and (if it is express) whether oral or in writing.' Thus, UK law recognises that an employment contract can 2

[2021] EWCA Civ 1370

[2022] 1 All Er 971

[2011] UKSC 41

arise from verbal or email communications if certain legal elements are satisfied. The basic requirements for the formation of any contract, including one of employment, are well established in common law and include the following elements:• Offer: a clear and definite expression of willingness to be bound on specific terms;

• Acceptance: an unconditional agreement to the terms of the offer;

• Consideration: a mutual exchange of value (e.g., work in exchange for pay);

• Intention to create legal relations: a genuine intent to form a binding legal relationship – the ‘meeting of minds’;

• Certainty of terms: sufficient clarity about key obligations (e.g., pay, duties, hours).

[42]In terms of approaching and considering whether an employment contract exists the following cases are relevant: Ready Mixed Concrete (South East) Ltd v Minister of Pensions

[1968] 2 QB 497

: which established that a contract of service requires mutual obligations, control, and consistency with employment; Autoclenz Ltd v Belcher

[2011] UKSC 41

: established that we must look beyond the written contract to assess the true agreement, particularly where there is a power imbalance; MacInnes v Gross

[2017] EWHC 127 (QB)

: informal email exchanges did not constitute a binding employment contract where essential terms were absent; Scancarriers A/S v Aotearoa International Ltd

[1985] 2 Lloyd’s Rep 419

: Where it was found that a contract cannot arise if essential terms are left open or Uncertain; and Quashie v Stringfellows Restaurants Ltd

[2012] IRLR 99

: Employment status can be inferred from conduct even in the absence of a written agreement.

[43]The claimant is adamant that for the engagement with the SSH team starting 29 Oct 2019, that she was not a StaffBank worker, and she was not engaged via StaffBank. She asserts that as a result of the emails exchanged between herself and Ms Brown and Mr O’Reilly that a separate contract of employment was formed. Section 230(2) of the Employment Rights Act 1996 provides for the possibility of employment contracts not being in writing. In considering if such a contract existed, it is important to assess the circumstances at play. The language used by the parties at the outset is important, in terms of indicating what the parties intended. Was there a meeting of minds and if so what did that mean in this context?

[44]We have found as a matter of fact that the first period (8 Jan 2019 – 12 Sept 2019) was conducted via StaffBank. When departing that role the C wrote to Mr OReilly, asking that he “please do give me a call if you need some random cover in the future.” He responded suggesting they could offer “some kind of work if you wanted to come back for short term assignments.” She responded “…please do call me whenever you need a bit of cover.” Mr O’Reilly asked her if she had “any odd days coming up” to cover absences. We must bear in mind that the claimant had previously worked in Ms Brown and Mr O’Reilly’s team as a matter of fact as a bank worker. Viewed from that perspective, using the words we have seen - an offer to cover random cover, in short term assignments, whenever you need a bit of cover, on odd days… this is not the language of permanent employment. This is casual language, describing casual, opportunistic work cover, typical of bank work.

[45]Going further there is no indication of an agreed figure for payment. In fact, when a negotiation is attempted, it is shot down by Ms Brown, and the role is described as ‘Band 4 level’. No question is asked – as one would expect in a contractual negotiation - about how much that would be, or at what level within the Band 4 scale the rate would sit. This indicates that the claimant was not expecting Ms Brown to provide her with a figure.

[46]The language in the exchanges around returning to support the team, providing cover and so on reflects the suggestion that she was offering to return to continue the bank role she was previously undertaking and being paid for. The claimant, having worked in the department and the NHS, having been through the permanent recruitment process and being familiar with bank work (having previously been a bank worker) would have been aware what a permanent recruitment would involve. There is an absence of specific basic terms on which she as a contracting party could rely later in the communications between the claimant and the individuals named, or on which a free-standing contract could realistically be grounded. The arrangement depends on knowing and defining what Band 4 pay was. There was no reference in those conversations to holiday pay, sick pay or any of the other benefits or provisions an employee might expect to rely on. We are not satisfied that the conversations here refer to anything more than an offer and agreement for the claimant to return to offer temporary support to the team on similar terms to her last engagement (i.e. on bank terms). We are not satisfied that this was or could constitute the elements of a free-standing, unwritten contract – ignoring the fact that it was evident that the route to permanent employment was via the formal recruitment process.

[47]We are satisfied on the basis of the screenshot, the email of 18 March 2018 to her manager, and her own evidence that the claimant was registered as a StaffBank worker, that she was aware that she was registered with the staff bank from Feb 2018, and that she had engaged with the StaffBank in advance of her first temporary placement after her resignation from her permanent role, with that placement starting in July 2018. In addition we are satisfied that she was at a minimum on notice as to the basis of and the limits of StaffBank terms and conditions as a result of having been provided with and served under her permanent contract of employment which contained outline provisions pertaining to the operation of the staff bank. While she disputes having signed the permanent contract (despite having been directed to do so by the cover letter) she did not dispute that she worked under, was paid under, benefited from and had accepted the terms of that contract.

[48]Moving beyond this question, accepting that the Claimant was in fact working under the StaffBank temporary workers agreement, Autoclenz requires us not to simply accept the label placed on a contract or agreement as being determinative as to what it means. In simple terms, just because the label on the tin says ‘beans’, that doesn’t necessarily mean that’s what’s in the tin.

[49]The claimant repeatedly invited us to consider all the elements of her working arrangements and circumstances, and to fully assess the reality of the relationship between the parties and find that the relationship contained all the essential ingredients of an employment contract. This requires us to look beyond the form of the StaffBank temporary staff agreement (to which in any event she says she is not bound) and focus on the reality of the situation.

[50]The claimant asserts that the relationship was in fact an employment relationship, and that she was treated no differently to her employed colleagues. This was not accurate in some obvious respects. There were periods for which she was unpaid – had she been an employee she would have been being paid for her contracted pattern regardless of her attendance or, for example, during the office closure at Christmas. She would have been being paid monthly as opposed to weekly. She would have been subject to the performance management regime, which she was not. She would have been required as an employee at this band to give six weeks’ notice when leaving, as she had done when leaving her permanent role – she gave two weeks’ notice when leaving the role in August 2019

[51]In terms of mutual obligation, while the claimant was required to do the work that she contracted to do in her individual engagements, there was no actual evidence offered by the claimant to show mutual obligation over an extended period between herself and the Trust. But over the extended period - there is no obligation on either party to offer work or to accept the work - other than those shifts which have been offered and accepted. We noted an example of shifts offered by another manager to the claimant, and she considered herself free and able to refuse them (pg. 296), and when asked she indicated in response that she did not consider that she was obligated to accept (in her words, it was to her mind “not compulsory”).

[52]These are not the only indices of an employment relationship. The degree of control an employer might exert over how and when a person works might indicate that the reality was of a closely monitored employee. We noted that when Mr O’Reilly requested that the Claimant work for two days per week in the office (pg. 192) it was couched in terms: “Would you be able to do 2 days in, 2 days WFH going forward? Need to try and get 2 in the office to make call volumes etc easier to deal with…” to which she responded that “…2 days in the office would be v difficult, that WFH works well for me, as it enables me to do more flexible hours (early morning/middle of the day/evening etc)”. This is not the approach of an employer directing or considering himself able to direct a member of his employed staff. Nor is it the response of an employee resisting unwelcome changes to their work. Similarly at pg. 191, an email to her manager informing him that she would have to leave early and that this was ‘how it would have to be’ going forward – to which he agrees, is again not indicative of an employee but more suggestive of an independent worker setting boundaries.

[53]The degree of integration into the team is another factor to consider – the claimant suggested various emails she was sent indicated she was treated as an employee. One of these it emerged was for eyecare to which she would not have been entitled – it would not be possible for these to be authorised for her given her status. Other emails were sent to her as she was part of a group cc list – which she suggested indicated she was in fact an employee. There were other examples offered in the same vein. These were not indicative of employment status.

[54]Finally the length and regularity of the working pattern is also of relevance. The claimant sought to characterise her pattern as regular, in that once it was agreed it was maintained. However her pattern repeatedly changed over the period, from one day per week, two days per week, four days. It emerged that she regularly worked outside normal business hours, at one stage sending reports to a Doctor at 2am in the morning which, while fulfilling her obligations in terms of delivering work, meant she was not following a predictable, set working pattern. This is a degree of flexibility not consistent with the approach described by Ms Brown regarding requests employees had to make to change their set working hours, by filling in and justifying a request on a Flexible Working Form, requiring approval.

[55]Looking at the reality of the situation, we are left to conclude that this was not an employer/employee arrangement in any sense. The claimant was engaged as cover, and this flexible arrangement suited her. The reality of the arrangement was that the claimant was a bank worker providing temporary cover, and that this was not disguised employment. On this basis as we find the claimant was not an employee. The Claimant’s claim for Unfair Dismissal therefore fails, as she was not an employee at the relevant time. As such we do not need to consider the issues raised around Redundancy, SOSR or any of the other issues underlying that claim. The issues of remedy for Unfair Dismissal fall away.

[56]Even if we were wrong in this characterisation of the work, the breaks in her engagement identified during this latter period and revealed by the records disclosed served to break her continuity of service. The Claimant was not able to offer evidence to explain three of these absences , and she was not able to offer any legal basis to fit any of them into the legally permissible exemptions provided by the legislation (namely that the absences were either due to incapacity for sickness or injury, absence on account of to a temporary cessation of work (work closed temp), or being absent from work in circumstances such as by custom she is regarded as continuing in the employment of the employer for any purpose. On this basis there is nothing further to consider with regards to Unfair Dismissal, which deals with issues 10 – 19. Law : Automatically Unfair Dismissal.

[57]The issue captured at issue 9 was regarding the 103A ERA 1996 protected disclosure. 103A Protected disclosure. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. For the purposes of the act protected disclosures are defined at 43B of the Act as any disclosure of information which, in the reasonable belief of the person making the disclosure does so in the public interest and tends to show that either (a) a criminal offence has been committed, is being committed or is likely to be committed, (b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.4 This protection from automatic unfair dismissal in these circumstances is afforded only to employees.

[58]Our finding regarding employment status means the claimant cannot avail herself of this provision. This claim must therefore also fail. As such we do not need to consider whether the disclosures the claimant alleged she had made, underpinning the Automatically Unfair Dismissal claim were protected disclosures. As a worker the claimant would still have whistleblowing protections elsewhere in the ERA, but the claimant did not seek to pursue this argument.

[59]Although not required to, given our findings on the claimant’s status, the Tribunal having heard and considered evidence on these points found that the alleged disclosures on which we heard considerable evidence, listed as issues 5 (a) to (g), were not in fact, in any event, protected disclosures. We found that the oral disclosures (Issues 5a, c and f) did not identify ‘information’ for the purposes of the act, let alone that anything had tended to show a risk to health and safety. Furthermore, we found that the email disclosures (Issues 5 (b), (d), (e) and (g) did not contain information which tended to reveal a risk to health and safety, either specifically, or by implication. In sub missions, the claimant accepted that with regards to her own evidence on the oral exchanges (which she had sought to characterise as protected disclosures) did not meet the relevant tests. Also, in cross-examination, she had accepted that the emails did not contain material that would satisfy the relevant tests.

[60]We were not satisfied that any information was provided during these exchanges which rose to the level of identifying an actual or potential health and safety risk. While delays regarding the production of reports were in evidence, there was no evidence that delays to the distribution of these particular reports 4 ERA 1996 S43B represented an actual or potential risk to patients, or that the claimant had a reasonably held belief that they did. This deals with Issues 5 – 9. Law: Unauthorised Deduction of Wages (UDW)

[61]As a worker a claim for UDW remains potentially valid. 13 Right not to suffer unauthorised deductions. (1)An employer shall not make a deduction from wages of a worker employed by him unless— (a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b)the worker has previously signified in writing his agreement or consent to the making of the deduction. (2)In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a)in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b)in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion. (3)Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

[62]The claimant’s case was that she was an employee, and that as an employee she should have received the applicable salary from the commencement of her employment. We have established that she was not an employee. Setting aside the employment issue, as a StaffBank worker she was being paid as per the standard arrangements, at the Band rate they set, for the job as graded. The StaffBank grading rates do not carry incremental progression rights. The claimant did not in any event establish with any clarity during the hearing any higher rate she believed she was entitled to, or the basis for that rate, apart from pointing to her previous status as a permanent employee. She was a bank worker and had accepted the placements on the terms offered. At no point did she discuss any figure with Mr O’Reilly or Ms Brown or point us to documentary evidence to substantiate the difference being sought. There is therefore no basis on which we could calculate this difference, even if there was a basis for it, which there is not. It was a matter of surprise to the tribunal that the claimant was suggesting that it was her expectation that she would be paid at a higher rate but had failed to notice this considerable underpayment despite being paid at the rate she was being paid on a weekly basis over the length of time we were being asked to consider. There was no loss of wages established here. This disposes of issue 20. Time Limits

[63]Finally, having established the claimant’s status as a worker, and the absence of evidence on wage deductions, the claims fail, and the time limit issues become academic. For completeness as we found that there was no umbrella employment contract in place, we consider that the last worked day (4 Nov 2021) is the effective date of termination (EDT) for the claimant. As such, the Sick Note has no effect on the EDT (no umbrella contract). The claim form was therefore out of time - the ET1 was due in the circumstances as we have found them by 3/2/22 but was actually submitted 16/5/22. The ACAS process started after that deadline and launching the process can only pause time still running and cannot revive or extend an expired deadline - unless we were persuaded that it was not reasonably practicable to submit the claim on time. We were offered no evidence in this regard (despite it being evident that the employment status was at issue) or addressing whether it was not for any reason reasonably practicable for the claimant to submit the claim form within 3 months minus one day of the EDT. If we had we would have gently noted that the claimant had, despite her sick leave, managed to produce, or had produced for her, a very detailed and full grievance served on 15 Nov. Similarly, the claim in respect of Unlawful Deductions was considerably late, and we would refer again to our comments regarding the length of time over which those alleged deductions had run and accrued. It would and should have been possible to submit these claims in time, they were not, and no reason was offered for the failure. The claims were out of time. This disposes of issues 1 and 3. - The claim for Unfair Dismissal fails for want of jurisdiction and is dismissed. - The claim for Automatically Unfair Dismissal fails for want of jurisdiction and is dismissed. - The claim for Unauthorised deductions for wages is not made out and is out of time. - The claim for Agency Workers Rights was withdrawn and is dismissed. Approved by