The Claimant was an employee and worker of the Respondent for the purposes of section 230 Employment Rights Act 1996.
REASONS
[1]The sole issue to be decided at today’s hearing was the status of the Claimant under section 230 Employment Rights Act 1996.
Evidence
[2]The Tribunal was provided with an agreed final hearing bundle of 83 pages. The Respondent had submitted to the Tribunal a further unpaginated bundle. This replicated much of what was in the agreed bundle and included witness statements. It also included some further documentation that appeared irrelevant for the purposes of today. I relied solely on the agreed bundle.[3]The Claimant gave evidence from a witness statement.[4]For the Respondent, Mrs Thompson and Mr Mudzengerere gave evidence from witness statements.[5]I heard oral submissions from both sides.
Findings of fact
[6]In July or August 2019 the Respondent sought to realign its relationship with its staff. Staff who had previously been directly employed by the Respondent were moved on to apparent contractor status via an “umbrella payroll model.”[7]Mrs Thompson wrote the Claimant a letter on 2 February 2020. This confirmed an “offer of employment with the Star kids Day Nursery & Pre-school. This enclosed a job description. Mrs Thompson was listed as the Claimant’s manager. The letter said it attached terms and conditions of employment, I saw one attachment, which stated that disciplinary and grievance policies applicable to the Claimant were included in the company guidelines. This letter was based on a template in place from before the July or August 2019 change to the Respondent’s staffing arrangements.[8]Mrs Thompson said that it was explained to the Claimant later that day that this letter was issued in error and that references to employment were mistaken. I do not accept that any such clarification was given to the Claimant. Mrs Thompson initially suggested this was done by letter but there is no evidence of such letter.[9]The Claimant started work at the nursery on 3 March 2020. That day she and Mrs Thompson signed an assignment agreement. This listed the hirer as Star Kids Club Limited. The client was unnamed but at the same address as Star Kids Club Limited. The assignment was listed as ongoing. It provided for varying hours of work but with a minimum of 15 hours per week. Contractor fees were stated to be £9.22 per hour. The payment period was monthly on the 25th. Notice of one month from either party was required to bring the arrangement to an end. There was no mention of Global Challenge Payroll Services in this document. I accept that the Claimant signed this document believing it to be her terms and conditions of employment.[10]The Respondent has a set of policies and procedures, which applied to the Claimant. I have not seen all of these.[11]Thereafter the Claimant worked at the Star Kids Club nursery. The nursery was apparently shut during April and May 2020 due to covid and the staff at the nursey were told to apply for universal credit rather than being put on furlough. The Claimant was not paid during this period.[12]There was a rota for staff working at the nursery. This was set by Mrs Thompson. I accept that the Claimant had some input into this (such as stating that she needed to be free to collect and look after her own children at various times). I accept that broadly once the rota was set there was an obligation on the Claimant to do the hours indicated. There was no contractual right for the Claimant to provide a substitute and she did not do so in practice. Absences were covered by existing staff or by agency staff hired by the Respondent.[13]Once at work, the Claimant’s duties were directed by Mrs Thompson. The Claimant was assigned as key worker to set children, her activities were approved by the Respondent and told which room she was working in. The Claimant’s break times were set by the Respondent.[14]The Claimant received payslips and P60s under the name of Star Kids Club Limited. The Employer PAYE reference numbers contained on these forms were not those belonging to Star Kids Club Limited but were rather for different companies related to Global Challenge Payroll. The payslips included separately itemised holiday pay, which was paid on a rolled up basis. The pay slips included a value for Annual leave remaining. The Claimant was paid solely for those hours she worked. The payslips were based on timesheets sent to Global Challenge by the Respondent.[15]The Claimant was required to get approval from the Respondent to take holiday. The Claimant was not paid holiday pay when she took holiday.[16]The Respondent says that payment was made to the Claimant by a company within the Global Challenge Payroll group but with the source of funds being the Respondent. The Claimant did not submit invoices.[18]It has been suggested by the Respondent that after November 2021 the Claimant and/or her husband sought to have her salary paid to her gross and that she would be responsible for the payment of tax rather than having it deducted at source. The Respondent says that when the Claimant was told that she did not qualify for this, this resulted in the Claimant requesting a p45 and that one was issued to her in February 2022 for this reason. As, even on the Respondent’s case, the change was not made to pay the Claimant gross, I do not consider that this is a matter that I can or should make a finding on today. However, it may be a relevant consideration later in the case both as to whether the Claimant was dismissed and, if she was, what was the date of that dismissal. The Law Section 230
The Law
[19]Section 230 Employment Rights Act 1996 states 230 Employees, workers etc.(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly. Employment status[20]The question whether someone is an employee or not is one of fact.[21]Ultimately it is impossible to draw up a complete and immutable list of criteria to be considered when deciding whether a contract is one of employment or one for services: Maurice Graham Ltd v Brunswick (1974) 16 KIR 158, Div Ct;[22]The starting point is generally considered to be the judgment of McKenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, [1968] 1 All ER 433, where he said as follows: ''A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.(iii) The other provisions of the contract are consistent with its being a contract of service …'.'[23]One further factor which has been found frequently in the case law is 'mutuality of obligations' which will usually mean an obligation on the employer to provide work and an obligation on the employee to do it. This is of particular relevance in the area of casual work where it may well be a crucial element in drawing the line between relatively informal employment relationships and arrangements which ultimately are too loose to qualify.[24]The obligation to render personal service is of crucial importance. It is however far from conclusive; for there is nothing to prevent an independent contractor from undertaking to perform the relevant tasks personally.[25]In Pimlico Plumbers Ltd v Smith [2017] IRLR 323 (albeit in relation to the worker test) Etherton MR summed up the case law on substitution clauses as follows: ''[84] … In the light of the cases and the language and objects of the relevant legislation, I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.''[26]The key questions are the extent to which the right to substitution is fettered including as to when a replacement can be provided, what limitations are placed on the identity of that replacement, whether the client is entitled to choose the substitute and whether it is intended that the right to appoint a replacement should be exercised in reality as set out in writing in the contract.[27]As to control, in White v Troutbeck SA Judge Richardson in the EAT ([2013] IRLR 286) held that the control test has to be applied in modern circumstances where many employees have substantial autonomy in how they operate, and are left to an extent to exercise their own judgment; the original idea that there must be detailed control of working methods may no longer always apply.[28]Moreover, at para 45 he said '… the question is not by whom day-to-day control was exercised but with whom and to what extent the ultimate right of control resided'. This was approved in the Court of Appeal [2013] IRLR 949, CA.[29]Eventually, a view must be taken on all of the facts by balancing all the factors (the modern 'multiple test'). This can include considering: 29.1. What was the amount of the remuneration and how was it paid?—a regular wage or salary tends towards a contract of employment; profit sharing or the submission of invoices for set amounts of work done, towards independence. 29.2. How far, if at all, did the worker invest in his or her own future: who provided the capital and who risked the loss? 29.3. Who provided the tools and equipment? 29.4. Was the worker tied to one employer, or was he or she free to work for others (especially rival enterprises)? Conversely, how strong or otherwise is the obligation on the worker to work for that particular employer, if and when called on to do so? 29.5. Was there a 'traditional structure' of employment in the trade or has it always been a bastion of self-employment? 29.6. What were the arrangements for the payment of income tax and National Insurance? 29.7. How was the arrangement terminable?—a power of dismissal smacks of employment.[30]As to the status given to the relationship by the parties, in Quashie v Stringfellow Restaurants Ltd [2013] IRLR 99, CA Elias LJ summed the overall position up as follows: ''It is trite law that the parties cannot by agreement fix the status of their relationship: that is an objective matter to be determined by an assessment of all the relevant factors. But it is legitimate for a court to have regard to the way in which the parties have chosen to categorise the relationship, and in a case where the position is uncertain it can be decisive…''[31]The basic question as set out by the Supreme Court in the leading case of Autoclenz Ltd v Belcher [2011] UKSC 41, is whether the written contract represents the true intentions or expectations of the parties.[32]Autoclenz was reviewed recently in the Supreme Court in the case of Uber BV v Aslam [2021] UKSC 5[33]At [69] the judgment states: ''Critical to understanding the Autoclenz case, as I see it, is that the rights asserted by the claimants were not contractual rights but were created by legislation. Thus, the task for the tribunals and the courts was not, unless the legislation required it, to identify whether, under the terms of their contracts, Autoclenz had agreed that the claimants should be paid at least the national minimum wage or receive paid annual leave. It was to determine whether the claimants fell within the definition of a “worker” in the relevant statutory provisions so as to qualify for these rights irrespective of what had been contractually agreed. In short, the primary question was one of statutory interpretation, not contractual interpretation.''[34]Stressing then the policy of protecting vulnerable persons, it is further stated at [76]: “Once this is recognised, it can immediately be seen that it would be inconsistent with the purpose of this legislation to treat the terms of a written contract as the starting point in determining whether an individual falls within the definition of a “worker”. To do so would reinstate the mischief which the legislation was enacted to prevent. It is the very fact that an employer is often in a position to dictate such contract terms and that the individual performing the work has little or no ability to influence those terms that gives rise to the need for statutory protection in the first place. The efficacy of such protection would be seriously undermined if the putative employer could by the way in which the relationship is characterised in the written contract determine, even prima facie, whether or not the other party is to be classified as a worker. Laws such as the National Minimum Wage Act were manifestly enacted to protect those whom Parliament considers to be in need of protection and not just those who are designated by their employer as qualifying for it.'' Worker status[35]The same requirement for personal service applies equally to worker status.[36]The tests for worker status under the Employment Rights Act 1996 and the Equality Act 2010 are effectively the same.[37]The test under both acts effectively include a requirement (made clear on the face of section 230(3)(B) Employment Rights Act 1996 and implied into the Equality Act definition by the Supreme Court’s decision in Hashwani v Jivraj [2011] UKSC 40) that the status of the employer must not be “by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.” Conclusions Requirement to provide own work
Conclusions
[38]There was no right to provide a substitute referred to in any document I have seen. In practice, it was the Respondent who arranged replacements when staff could not attend. In this case it seems clear to me that the Claimant was required to provide her own work personally. Control[39]The Claimant was subjected to significant control by the Respondent as to when, where and how her work was done. This included setting the rota, approving absences, setting breaks, and assigning the Claimant to work in particular rooms and as key worker for particular children. The Claimant was subject to the Respondent’s policies and procedures including as to disciplinary and grievance matters. Other factors[40]Most other factors suggest the Claimant was in a contract of employment. She was paid monthly without having to submit invoices. Deductions were made at source from sums paid to the Claimant (although I accept this is not determinative in itself). The Claimant had no financial risk and provided no equipment. The contract was terminable on notice. The Claimant was closely integrated into the Respondent’s organisation. Labels applied by the parties[41]The labels applied by the parties were not consistent. The Respondent referred to the arrangement as employment in the offer letter. The labels of assignment, hirer, contractor, and client were included on the assignment agreement. These were terms sought to be imposed by the Respondent. However, there was no mention of Global Challenge Payroll Services being the hirer. The hirer was the Respondent. The Respondent was also the client. In those circumstances, I am satisfied that the assignment agreement does not reflect the reality of the situation in relation to the Claimant’s engagement. Mutuality of obligation[42]When the nursery was shut, staff were told to claim universal credit. The Claimant took a month off to go to India during November 2021. Notwithstanding those two periods, I find there was mutuality of obligation in that the Respondent had committed to offer at least 15 hours a week and, in practice and under contract, I find that the Claimant had agreed to do those hours. There was an established pattern of working which reflected the obligations on both sides. This was not a borderline or casual situation where mutuality of obligation could be denied during periods when the Claimant was not working at the nursery. The Claimant’s status[43]The requirements for the tests for employment and worker status both having been met, I find that the Claimant was an employee and worker of the Respondent for the purposes of section 230 Employment Rights Act 1996.[44]The Tribunal will schedule a further Preliminary Hearing to consider case management through to the final hearing.
The Issues
[53]The issues the Tribunal will decide are set out below.
The Issues
[1]Protected disclosure 1.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:[2]As per the Preliminary Hearing Order of EJ Smith on 15th March 2024.1.1.1 What did the claimant say or write? When? To whom? The claimant says they made disclosures on these occasions:1.1.1.1 The claimant made oral disclosures to the respondent, namely [claimant to identify named individual], on [claimant to identify the date and time], that [claimant to identify the content of the conversation]1.1.1.2 The claimant made oral disclosures to the respondent’s accountant, namely, Global Challenge Ltd over the telephone on [claimant to identify the name of individual] on [date] that [claimant to identify the content of conversation]1.1.1.3 The claimant made oral disclosures to HMRC over the telephone on [date] that [claimant to identify the content of the conversation]1.1.2 Did they disclose information?1.1.3 Did they believe the disclosure of information was made in the public interest?1.1.4 Was that belief reasonable?1.1.5 Did they believe it tended to show that:1.1.5.1 a criminal offence had been, was being or was likely to be committed; or1.1.5.2 a person had failed, was failing or was likely to fail to comply with any legal obligation?1.1.6 Was that belief reasonable?1.1.7 If the claimant made a qualifying disclosure, was it made:1.1.7.1 To the respondent’s employer? If so, it was a protected disclosure.1.1.7.2 To the respondent’s accountants? If so, should the respondent’s accountants be treated as the respondent’s agent such that a disclosure to them should be treated as a disclosure to the respondent? Alternatively, did the claimant reasonably believe that the relevant failure related solely or mainly to the conduct of a person other than her employer, or any other matter for which a person other than her employer had legal responsibility? If so, it was a protected disclosure.1.1.7.3 To HMRC? If so, did the claimant reasonably believe that the relevant failure falls within the prescribed responsibilities of HMRC? And, did the claimant reasonably believe that the information disclosed and any information contained in it, were substantially true? If so, it was a protected disclosure. 2. Assertion of statutory right2.1 Did the claimant do the things in 1.1.1. above?2.2 Did they amount to an assertion of a statutory right for the purposes of s.104 Employment Rights Act 1996?[3]The claimant says that the following statutory rights were asserted:3.1 To provide particulars of employment;3.2 Protection against unlawful deduction from wages and breaches of the National minimum wage; and3.3 Paid annual leave.[4]Was the claim to the right and the assertion that it has been infringed made in good faith?[5]Did the claimant assert infringements of a statutory right before she was dismissed?[6]Unfair dismissal6.1 Was the claimant dismissed?6.2 If the claimant was dismissed, what was the reason or principal reason for dismissal? The claimant says that she was dismissed because she made protected disclosures and or for asserting statutory rights. The respondent says that the claimant resigned.6.3 Was it a potentially fair reason?6.4 Did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the claimant?6.5 The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.6.6 Was the reason or principal reason for dismissal that the claimant made a protected disclosure and or asserted a statutory right? If so, the claimant will be regarded as unfairly dismissed.[7]Remedy for unfair dismissal7.1 If there is a compensatory award, how much should it be? The Tribunal will decide:7.1.1 What financial losses has the dismissal caused the claimant?7.1.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?7.1.3 If not, for what period of loss should the claimant be compensated?7.1.4 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?7.1.5 If so, should the claimant’s compensation be reduced? By how much?7.1.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?7.1.7 Did the respondent or the claimant unreasonably fail to comply with it?7.1.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?7.1.9 If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?7.1.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what roportion?7.1.11 Does the statutory cap apply?7.2 What basic award is payable to the claimant, if any?7.3 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?[8]Holiday Pay 8.1 Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended? [To be provided by the claimant in schedule of loss. The claimant must provide detailed and clear calculations supported by evidence broken down by each relevant time period][9]Unauthorised deductions (breach of national minimum wage) 9.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so how much was deducted? The claimant says that she was not paid the minimum wage or her contracted rate of £9.22 per hour. [Claimant to specify in schedule of loss. The claimant must provide detailed and clear calculations supported by evidence broken down by each relevant time period] Preliminary Matters 3. At the outset of the Hearing we discussed the List of Issues with both the Claimant and Respondent; they confirmed that the List of Issues [HB/84-87] was agreed. However, there appeared to be some information missing i.e. details of the Claimant’s alleged qualifying disclosures. Mr. Aziz clarified that the Claimant relied upon six disclosures which were detailed at paragraphs 2, 3, 4, 7, 8, and 9 of her Further and Better Particulars of Claim [HB/88-91]; the Respondent agreed. Procedure and Documents 4. The Tribunal had before it:(a) An agreed Hearing bundle consisting of 267 pages;(b) an additional bundle of 14 pages from the Claimant; and(c) a breakdown of holiday pay and National Insurance (‘NI’) contributions document from the Claimant. 5. The Tribunal also had written witness statements and heard live evidence from: For the Claimant (i) The Claimant; and For the Respondent (ii) Olayinka Thompson. 6. The Claimant provided written closing submissions, supplemented by oral submissions, and the Respondent made oral closing submissions at the conclusion of the evidence. 7. The Tribunal notified the parties at the outset of the Hearing that they would only read documents that they were specifically referred to and would only read documents referred to in witness statements insofar as they were relevant. Findings of Fact 8. The following findings of fact were reached by the Tribunal, on a balance of probabilities, having considered all of the evidence given by witnesses during the Hearing, including the documents referred to by them, and taking into account the Tribunal’s assessment of the witness evidence. 9. Only findings of fact relevant to the issues, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant.
Background
[10]The Respondent is a nursery for pre-school aged children based in Dartford, Kent. In addition to the unusual nursery services the Respondent also operates as a breakfast and after-school club. The Claimant began working for the Respondent as a nursery nurse on 3rd February 2020 and her employment terminated, on 18th March 2022. The Respondent’s offer of employment letter sent to the Claimant on 3rd February 2020 stated that ‘terms and conditions of engagement and employment’ was attached to the letter.[11]The Respondent believed that the Claimant was not its employee but a ‘contractor.’ However, following a Preliminary Hearing on 28th September 2023, Employment Judge T. Perry found that ‘…that the Claimant was an employee and worker of the Respondent for the purposes of section 230 Employment Rights Act 1996.’ [HB/76 para.43][12]The Claimant was employed on a zero hours contract and her working pattern was typically 110-111 hours per month, comprised of eight hour work days. The Claimant’s ‘Assignment Agreement’ [94] stipulated that she would be paid £9.22p per hour worked and would work a minimum of 15 hours per week. That agreement also specified that ‘1 calendar month(s)’ notice was required by both parties to terminate the contract. The Claimant was paid by the Respondent via an umbrella company, ‘Global Challenge Limited.’ The Respondent’s finances and payroll issues were dealt with by its accountant, Arnold Mudzengerere, upon whom the Respondent relied for advice and guidance.[13]Up until approximately February 2022, the Claimant’s employment with the Respondent was unremarkable in that there were no issues or incidences of note. Letter from HRMC[14]On or around 28th January 2022, the Claimant received a letter from His Majesty’s Revenue and Customs (‘HMRC’) informing her that she had paid too little tax and owed HMRC £515.00p. This came as a shock to the Claimant as she was an employee and believed that the Respondent dealt with her tax deductions at source.[15]Shortly after receiving the letter from HMRC, the Claimant raised the issue with Olayinka Thompson (director) of the Respondent and also queried holiday pay which she said was owed to her. Mrs. Thompson asked the Claimant to discuss the matter with the Respondent’s accountant, Arnold Mudzengerere, as he dealt with the respondent’s financial matters and payroll.[16]The Claimant sought to contact Mr. Mudzengerere – via telephone – on several occasions to no avail. Therefore, on 3rd February 2022 the Claimant’s husband, Pankaj Dagar, telephoned Mr. Mudzengerere who, on this occasion, answered the call. Mr. Mudzengerere was unable to sufficiently answer Mr. Dagar’s queries and the telephone conversation was a short one. Mr. Dagar also brought to Mr. Mudzengerere’s attention that the Respondent had deducted employer national insurance (‘NI’) contributions from the Claimant’s gross pay as well as employee NI contributions. Following the telephone conversation, Mr. Mudzengerere sent Mr. Dagar an email with a link for guidance regarding working through an umbrella company.[17]On 7th February 2022, Mr. Dagar emailed Mr. Mudzengerere inter alia, chasing him for a response to the matters he had raised when they had spoken several days before. Also on or around 7th February 2022, the Claimant received a P45 stating that her employment with the Respondent had ended on 31st January 2022. The Claimant made enquiries with HMRC whom confirmed that the Claimant had underpaid tax in the previous financial year and owed them £515.00p.[18]As the Claimant had not resigned from her employment she spoke with Mrs. Thompson (between 7th and 15th February 2022) and queried why she had been sent P45. Mrs. Thompson told the Claimant to ignore the P45 and to continue work as normal. The Respondent continued to rota the Claimant to work shifts after this discussion and the Claimant duly worked assigned shifts. When the Claimant raised the issues of holiday pay, deductions from pay and the £515.00p she owed to HMRC with Mrs. Thompson, she told the Claimant that a meeting had been arranged between staff and Mr. Mudzengerere and that all queries should be addressed to him.[19]On 15th February 2022, Mr. Mudzengerere met with the Respondent’s staff and the Claimant was present at the meeting. Mr. Mudzengerere stated that the Respondent’s staff were not employees but ‘contractors.’ In the Claimant’s case this was incorrect; she was not a contractor but an employee of the Respondent. When the Claimant raised the issue of deductions from her pay and the need to accurately pay tax, Mr. Mudzengerere made light of the Claimant’s concerns and said ‘people save tax and you want to pay tax.’ Termination of Employment[20]Post the 15th February 2022 meeting, the Claimant continued to work her shifts as per usual. On 18th March 2022, Mrs. Thompson told the Claimant that the respondent no longer needed the Claimant’s services ‘with immediate effect.’ The Claimant, understandably was taken aback by the abrupt termination of her employment and she protested that she was entitled to one month’s notice. The Respondent terminated the Claimant’s employment as there were not enough hours to cover her role and they summarily dismissed the claimant as they – erroneously – believed that she was a contractor and not an employee.[21]Also on 18th March 2022, Acas had contacted Mrs. Thompson as the Claimant had applied for Acas early conciliation on 1st March 2022. The Respondent’s termination of the Claimant’s employment was not coincidental and the telephone call from Acas was the catalyst for the Respondent’s decision to end the Claimant’s employment.[22]Mrs. Thompson, at some point between 19th and 23rd March 2022, arranged a meeting with he Claimant and invited her to attend a meeting to take place on 24th March 2022. The Claimant believed the purpose of the meeting was to discuss the issues she had raised about being underpaid. The real reason for the meeting was that the Respondent were anxious that the Claimant would be submitting an Employment Tribunal claim and wished to assuage her.[23]At the meeting on 24th March 2022, which was held at the Claimant’s ex-place of work, Mrs. Thompson told the Claimant that the contact from Acas had upset her. She also told the Claimant that if she agreed to accept her former terms and conditions of employment she could return to work. However, Mrs. Thompson also told the Claimant that if she continued to pursue her concerns regarding her employment status and pay, she could not return to work as other staff may also raise similar concerns.[24]The Claimant then left the meeting and did not accept Mrs. Thompson’s offer to return to her role. Relevant Law Unfair Dismissal
Relevant Law
[25]Under section 103A Employment Rights Act 1996 (‘ERA’), ‘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.’ Under section 104 ERA (insofar as material), ‘104 Assertion of statutory right.(1) 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— (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.(2) It is immaterial for the purposes of subsection (1)— (a) whether or not the employee has the right, or (b)whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.’ …. Written Statement of Employment Particulars[26]Under section 1 ERA an employee is entitled to receive a written statement of particulars of employment. The required information is contained in that section. Under S.4, any changes need to be notified within one month. A reference can be made to a Tribunal to determine which particulars ought to have been included under S.11 and under S.12, any such determination can confirm, amend or substitute particulars.[27]Employees are afforded various protections when they make a protected disclosure (commonly referred to as whistleblowing) and/or in relation to asserting certain rights. Protected Disclosures[28]Any disclosure of information which in the reasonable belief of the worker making the disclosure tends to show one or more of the matters listed at section 43B(1) ERA and is reasonably believed to be made in the public interest (not defined), will be a qualifying disclosure. That list includes that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject and that the health and safety of any individual has been, is being or is likely to be endangered.[29]In order for a statement or disclosure to be a qualifying disclosure, it has to have a sufficient factual content and specificity such as is capable of tending to show one of those matters (Kilraine v. LB of Wandsworth ([2018] IRLR 846). This is a matter of fact for the Tribunal to determine on the evidence heard. It must identify, albeit not in strict legal language, the breach relied upon (Fincham v. H M Prison Service EAT 0925 & 0991/01).[30]Whether a worker had the required reasonable belief (of both what the information tended to show and whether the disclosure was being made in the public interest) is judged taking into account that worker’s individual circumstances. Accordingly, whether belief is reasonable must be subject to what a person in their position would reasonably believe to be wrong doing. It is a mixed subjective/objective test.[31]The information does not have to be true but to be reasonably believed to be true, there must be some evidential basis for it. The worker must exercise some judgment on his or her own part consistent with the evidence and resources available (Darnton v. University of Surrey [2003] ICR 615).[32]To be protected a qualifying disclosure has to be made in accordance with one of six permitted methods of disclosure which include to the person’s employer (section 43C(1)(a)).[33]Under s.13 ERA (insofar as material), ‘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.’ …. Conclusions and Analysis Credibility of Evidence[34]We find that the Claimant’s evidence was honest, and trustworthy.[35]We found the Respondent’s witnesses’ evidence to be measured but inconsistent. For example, in response to a Tribunal question, she unequivocally stated that the document at [185] was a verbatim typed copy of her manuscript notes taken at a meeting on 18th March 2022. However, this cannot be correct as the typed notes refer to events which had not yet taken place i.e. ‘I therefore contacted her on the 22 nd of March via a text message, to come and see me for a short meeting booked for 24 th March 2022.’ When questioned on the discrepancy, Mrs. Thompson said that ‘when the Claimant left on the 18th, I knew I had to contact her back.’ We do not accept this to have been the case as the notes read as if events have already occurred.[36]Where there was a dispute, we preferred the evidence of the Claimant. Automatic Unfair Dismissal: Protected Disclosures[37]The Claimant’s case is that she made the following protected disclosures:(i) On 31st Jan/ 1st Feb 2022, I spoke to Miss Thompson about the letter and Miss Thompson said if I can speak to Mr. Arnold (accountant) about this issue. I raised with her issues related to the reasons why my pay was incorrect particularly given the deductions that had been made and my holiday pay. It was these matters that had been highlighted by the HMRC letter of 28/1/22.(ii) I called to Mr. Arnold so many times, but he was not responding to my phone calls. On 3rd Feb 2022, Pankaj (my husband) called on my behalf from his number and Mr. Arnold picked up the call. My husband raised the same issues I had raised with Miss Thompson (31 Jan/1 Feb 2022) related to the deductions from my pay and holiday pay, Mr. Arnold was unable to provide any explanation, so he quickly disconnected the call.(iii) On 7th Feb, 2022, My husband wrote an email on my behalf to Mr. Arnold to again raise the same concerns about the deductions and holiday pay. The email asked him to respond it by 9th Feb, but no response came from him. After raising these issues in writing Star Kids issued me my P45. During the 2nd week of Feb 2022, I spoke again to Miss Thompson(iv) again about my issues related to my pay deductions and holiday pay that had been made and the fact that HMRC had informed me that I owed £515 in tax, I also raised with her the P45 she said to ignore the P45. She explained that she would be asking Mr. Arnold to attend a meeting for all the staff and staff can ask the questions to him. It was clear from her manner and tone that she was annoyed with me asking all these questions of her. At or around 15th Feb 2022, Mr Arnold attended a staff meeting. When(v) I asked Mr Arnold about the staff and my employment status, he told the staff meeting that we were all contractors not an employee. When raised the fact there were issues with the deductions being make from my pay and I suspected other and the staff earning being declared to HMRC were not correct. His response was why do you want to pay more tax. I said to him I need to pay accurate tax on my income earned then was due, I wanted my pay to be correct his response was that people save tax and you want to pay tax and they started laughing on me. At or around 15th Feb 2022 I again asked to Mr. Arnold and Miss(vi) Thompson how Star Kids was going to resolve my pay issues and they said we will have all look whenever they get the time, they explained that in the meantime Star Kids would not be doing anything so pay deductions and holiday pay matters would not change. When Mr. Arnold again stated that you are a contractor not an employee, I again asserted That that I am an employee and I have a contract with Star Kids. [88-89][38]We accept that the Claimant made protected disclosures as alleged and that she believed that a criminal offence had been, was being or likely to be committed; or a person had failed, was failing or likely to fail to comply with a legal obligation.[39]The question for us was whether the Claimant had a belief that the disclosure was made in the public interest (subjective test) and if so, was her belief that the disclosure was in the public interest, a reasonable one (objective test) Chesterons Global Ltd v. Nurmohammed [2018] ICR 731 CA and Babula v. Waltham Forest College [2007] EWCA Civ 174. In, Chesterton a four- factor test was approved as being a useful tool to analyse the second part of the public interest test.[40]However, the Tribunal concludes that the Claimant did not believe that in respect of any of the aforementioned, her disclosures were in the public interest pursuant to the first part of the public interest test in Chesterton. The Tribunal reached this conclusion for a number of reasons chiefly, as the Claimant had been pursuing the Respondent about her own personal pay, tax, and employment matters. She did not do so on behalf of any other colleagues nor did she seek include them in her actions in respect of the disclosures made.[41]If the Tribunal is wrong in its conclusion regarding the Claimant’s belief that the disclosure was in the public interest, the Tribunal concludes in the alternative that the Claimant’s belief was not, objectively, a reasonable one.[42]The court of Appeal provided helpful guidance on this second limb in Chesterton when it stated: ‘…element (b) in that exercise requires the Tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured. The parties in their oral submissions referred both to the "range of reasonable responses" approach applied in considering whether a dismissal is unfair under Part X of the 1996 Act and to "the Wednesbury approach" employed in (some) public law cases. Of course, we are in essentially the same territory, but I do not believe that resort to tests formulated in different contexts is helpful. All that matters is that the Tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking – that is indeed often difficult to avoid – but only that that view is not as such determinative. Third, the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable. Fourth, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at para. 17 above, the new sections 49 (6A) and 103 (6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker's motivation – the phrase "in the belief" is not the same as "motivated by the belief"; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it’[43]Therefore the Claimant’s whistleblowing detriments claim fails. Ordinary Unfair Dismissal[44]It is clear that the Respondent followed no process at all as they believed they did not have to as the Claimant was a ‘contractor.’ However, as a previous Tribunal found the Claimant was an employee, the Respondent erred in not following any process prior to dismissing the Claimant.[45]Therefore, this allegation is made out and succeeds. Automatic Unfair Dismissal: Assertion of a Statutory right[46]We accept, from the documentary [259-262] and oral evidence that the Claimant asserted the statutory rights of:(i) To provide particulars of employment;(ii) protection against unlawful deduction from wages and breaches of the National minimum wage; and(iii) paid annual leave.[47]The Respondent had provided the Claimant with written particulars of employment at the start of her employment. The Respondent called it ‘assignment agreement.’ Therefore, this claim is not made out.[48]The national minimum wage at the material time was: £8.72p (2020-2021); £8.91p (2021-2022) and £9.50p (2022-2023). From the payslips in the bundle [100-115] and [280-281] it is evident that the Claimant received the minimum wage at the material times and this claim is not made out and fails. Unpaid Holiday Pay[49]We accepted that the Claimant was not paid her appropriate holiday pay. The Respondent simply provided no evidence that the Claimant was paid holiday pay owing to her and therefore, we accept that the Claimant is owed the holiday pay listed in the document provided by the Claimant titled, ‘Holiday Pay and Employer NI Breakdown’ plus one week.[50]The Claimant’s claim for unpaid holiday pay is well founded and succeeds.
Remedy
[51]In light of our findings the Claimant is awarded the sum of £5,134.66p which must be paid by the Respondent to the Claimant within 28 days from when this judgment was sent to the parties.[52]Basis of Our Calculations Average hours worked in last 12 months of employment: 1335.5 Average hours worked per week excluding weeks where no Work was offered: 27.04 Average weekly pay at £9.22p per hour: £256.53p Losses Basic award x 2 weeks pay: £513.05p Notice pay x 4 weeks: £1,026.11p Loss of Statutory Rights: £500.00p Holiday pay: £3,095.50p (Holiday pay accrued at 12.07% of hours worked Average hours over 12 months (1335.5) = 111.3 hours per month Plus holiday entitlement is an additional 13.43 hours x £9.22p = £123.82p per month £123.82 x 24 months = £2,971.68 = 1 week = £3,095.50) Total: £5,134.66p
Remedy
[1]The Respondent’s application for reconsideration of the judgment given in this matter on 27th November 2024 is refused, and the decision in that judgment is confirmed. APPLICATION[2]The Respondent applied, under Rule 71 of the Employment Tribunals Rules of Procedure 2013, for reconsideration of our decision on 15th December 2024.[3]The Respondent has applied for a reconsideration of our judgment as it believes that, ‘The Employment Tribunal’s decision/finding is not in accordance with the evidence, equity and the substantial merits of the case.’[4]The entirety of the Respondent’s reconsideration application is predicated on the premise that we erred in our findings of fact i.e. the Respondent does not agree with the factual findings we made.[5]Further, the Respondent is squarely seeking to re-litigate its case and adduce evidence, none of which is new. The Respondent is re-stating the evidence and then suggesting what facts we should have found.[6]This is not a proper use of r.70. We found facts from the evidence we heard and read. A Tribunal is entitled to make findings on this basis after assessing the credibility of the evidence before it.[7]It is not for the parties to tell a Tribunal how it should have viewed the evidence and what facts it should have found.[8]If a party believes that perverse findings of fact were made then they should invoke their inherent right of appeal.[9]Upon reconsideration, there is no prospect of our decision being revoked or varied.[10]Reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to re-argue matters in a different way or adopting points previously omitted.[11]There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v. Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[12]Similarly, in Liddington v. 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P (as she then was) said in paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’[13]Reconsideration is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.[14]Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.[15]For all of the above reasons, the Respondent’s application is refused.