Mr A Moleta v Little Fair Nursing Home Ltd: 2301961/2020
EMPLOYMENT TRIBUNALS
Case No 2301961/2020
Between
Mr A MoletaClaimantLittle Fair Nursing Home LtdRespondent
Before
Employment Judge R F PowellIn person for claimantDate 29 January 2025
JUDGMENT
[1]The claimant was an employee of the respondent from the 1st November 2019.[2]The claimant was a worker for the purposes of section 43K of the Employment Rights Act from 1st November[3]The Claimant’s dismissal occurred after the 26th December 2019.[4]The claims of detriments on the ground of asserted protected public interest disclosures and unfair dismissal principally because of such disclosures are within the jurisdiction of the Employment Tribunal.
REASONS
[1]This hearing was listed for two days to commence on the 14th July at 10.00. For reasons which were unforeseen, I was asked to conduct the hearing a little after that time and, to allow a little time for me to read the two witness statement and scan the 1,600 pages of documents produced by the parties, the case commenced around 12 o’clock.[2]Consequently, it was not practicable to give judgment the next day and my reading and deliberations were completed as soon as practical thereafter. The Pleaded Case[3]Mr Moleta’s claim form asserts that he was employed by the respondent on 1st November 2019 and that he was dismissed from that employment on the 16th April 2020.[4]Mr Moleta alleges that the respondent’s reason for dismissing him was principally his prior protected public interest disclosures, and that he was subject to incidents of detrimental treatment on the ground of his asserted disclosures during the course of his employment.[5]The Respondent disputes that Mr Moleta was either an employee or a worker for the purposes of sections 43k and 230 of the Employment Rights Act 1996.[6]The Respondent pleads that Mr Moleta was at all times a self-employed person and that relationship between Mr Moleta and the respondent ended on 19th December 2019.[7]It is common ground between the parties that, if the 19th December 2019 was the effective date of dismissal, the claim was presented one day out with the prescribed period set by section 108 ERA 1996.[8]Following a preliminary hearing of 21 January 2022 Employment Judge Dyal directed that this hearing should take place and that it should determine the following: “51.1 Whether the complaints have been brought out of time and if so whether time should be extended (if the judge hearing the PH considers that it is not possible/convenient to decide some or all aspects of the limitation issues, for instance the question of whether there was a series of deductions/series of detriments/a continuing act, then some or all of these issues may be left over to the final hearing); 51.2 Whether the Claimant was a worker or an employee or neither at the relevant times.”[9]I record two points relevant to the above order:a. It was not possible to address the issue of “series of similar deductions/acts” or a continuing course of conduct.b. As some of the allegations in this case relate to claims undersections 47B I have taken into account the extended definition of a worker set out in section 43K of the ERA 1996.
The evidence
[10]I read the witness statements, and heard oral evidence from Mr Moleta and the respondent’s director Mr Sherard. Neither gentleman’s oral evidence provided me with much confidence in their account. Mr Moleta was evasive in his answers; avoiding Ms John’s questions and introducing additional statements. He repeatedly did so despite guidance, and eventually a direction from myself, to answer the question asked.[11]Mr Sherard’s witness statement lacked detail on the issues before me, included statements of opinion where statements of fact should have been. In cross examination his personal sense of frustration with, in his opinion, Mr Moleta’s actions whilst Mr Sherard had been distracted from the business, evidently coloured his answers. Moreover, his evidence was sometimes in conflict with contemporaneous documentary evidence[12]I have also read two witness statements from persons who did not attend as witnesses and whose evidence has not been confirmed on oath or affirmation nor tested in cross examination.[13]Both statements refer to Mr Moleta being involved in the day to day management of the respondent and the statement of Nicola Martin is in certain respects corroborated by contemporaneous documents which have been before me.[14]In so far as either statement is corroborated by contemporary documentary evidence presented in the parties’ bundles, I have taken those parts of the evidence into account but accorded them little weight.[15]The balance of both statements indicate a degree of ill will towards the respondent, that content has not admitted and cannot be tested. I consider such evidence to be too unreliable to be accorded any weight.[16]Mr Moleta produced a bundle which exceeded 1,200 pages ( references to ”c” in this judgment are to Mr Moleta’s bundle1). The respondent produced a bundle of 431 pages ( referred to as “r”).[17]In a two day hearing, effectively 11 hours of hearing time, it was never likely that an Employment Judge could assimilate the content of 1,600 pages of documents. I therefore informed the parties that I would read as much as I could after the conclusion of the first day of the hearing and directed the parties to draw to my attention each document they 1 The numbers cited in this judgment are those generated by the PDF reader used to read the electronic bundles. considered relevant to their evidence or argument. In particular Mr Moleta provided me with the page numbers for each document to which he had referred in his witness statement.[18]I have made the following findings of fact on the balance of probabilities.
Findings of Fact
[19]Mr Sherard has been the director of the respondent business from its incorporation in May 2015. Between September 2015 and 2019 his codirector was his mother. Mr Sherard’s family had run the business for some 23 years before its incorporation, and since 2015 Mr Sherard had been the director responsible for all managerial decisions and was the day to day manager of the respondent’s care home.[20]The care home was purpose built for the care of elderly persons with dementia and could accommodate 41 residents.[21]Following the death of Mr Sherard’s mother in June 2019 some dispute was anticipated between the siblings of Mr Sherard as to the degree to which the respondent, and its assets, were part of his mother’s assets (probably based on the transfer of his mother’s shareholding to Mr Sherard in June 2019, making him the only shareholder; (c 391)).[22]Mr Sherard sought advice upon the means available to “ring fence” the respondent from his siblings’ potential assertion of some financial interest or entitlement [c401-2].
Analysis
[23]Mr Moleta was recommended to Mr Sherard as a person who had the skills and experience to assist Mr Sherard. It is clear that by 19 June 2019 Mr Sherard was providing information regarding his mother’s will to Mr Moleta [c 393].[24]It is common ground between the parties that Mr Moleta was taking an interest in the running of the respondent within three weeks of first discussing the “ringfencing”. Mr Sherard’s evidence, in his statement, on this change was thus: “In early July 2019, AM requested to visit the home for observation reasons so he could gather information he might need to put towards the proposal to ringfence the business. At the time, I couldn’t quite understand why AM needed to visit the Home at all especially as AM said in earlier discussions it was about the structure and financial side of the business and not about the operational part of the business.”[25]Having considered the correspondence written by Mr Moleta, in respect of the management of the respondent, I reject Mr Sherard’s evidence that he did not understand what Mr Moleta was doing. The following are examples from Mr Moleta’s bundle:a.3rd July 2019. Mr Moleta wrote to an employee of the respondent, offering her enhanced remuneration to remain with the respondent [c 407] . Mr Moleta’s draft letter had been sent to Mr Sherard who annotated the draft with comments and approvals.b. Thereafter , Mr Moleta is advising Mr Sherard on alterative structures for bonus payments and the potential for giving staff equity in the respondent’s business, dependant on performance [c408 -14]. Mr Sherard’s responses do not indicate, surprise, confusion or any objection to the claimant’s actions.c. 17th to 19th July 2019. The claimant is requesting additional respondent email accounts to be set up, including one in his own name, to which Mr Sherard agrees [c434-6].d.19th July 2019. Mr Moleta puts forward detailed proposals for the recording, filing, review and storing of residents’ care plans and associated documents with a critique of the existing standards. These are reviewed by Mr Sherard; most are approved by him [c 436 – 40]. Again, there is no censure or criticism of Mr Moleta for undertaking these tasks or suggesting changes to the respondent’s administrative function.e.12th August 2019. Mr Moleta is informed that Mr Sharad has set up an email for Mr Moleta on the respondent’s account [c 441].f.13th August 2019. A meeting takes place with Mr Sharard, Mr Moleta, Ms Karen Morgan and Ms Nicki Martin [c442-3]. In my judgment, by the seniority of the three members of the respondent’s staff present and the subjects discussed , this was a management meeting.g. Within that meeting the following actions were required of Mr Moleta: i. Meeting with staff. ii. Review of staff contracts. iii. Involvement in improving occupancy rates. iv. Raising concerns regarding electrical safety. v. To source office equipment and quotations for the maintenance of the care home’s kitchen. vi. To attend a Care show.[26]I find that the same meeting recorded the respondent’s intention to provide Mr Moleta with a debit card on the Respondent’s bank account.[27]Again, all of the above instructions were, according to the respondent’s record of the meeting, known to Mr Sharard.[28]By 3rd October 2019 an issue had arisen over the departure of the care Home Manager and the respondent’s decision not to disclose that departure to the residents. Mr Moleta was included in the email correspondence on how best to manage residents’ and others’ questions. His email was circulated and an annotated version, with Mr Sherard’s comments, was distributed.[29]Pertinent to the issue before me, Mr Sherard’s comments of the 3rd October 2019 included the following [c449]: “AM role - since Lily's passing Nick has appointed Andrew as COO and he will take direction from Nick but will be operating the business on the front line and will be looking at how we can improve the entire services, reduce waste, eradicate agency, fill the capacity of the Home and provide a dynamic and rewarding experience for all in the Home. Our exciting plans will be announced soon.”[30]The above contemporary document, approved by Mr Sherard, fundamentally contradicts Mr Sherard’s evidence before me.[31]A variant of the above text was published to staff and residents in a newsletter dated 10th October 2019; it referred to Mr Moleta; as: “coming on board full time as our Chief Operating officer and will effectively be our manager until we recruit a new home manager” [c 502].[32]It further appears that Mr Moleta was described as the respondent’s chief operating officer to the Care Quality Commission’s inspectors and as part of the respondent’s management [c 642] in early December[33]Within the Mr Moleta’s documentary evidence (contemporaneous email correspondence and other documents), a consistent theme, some of which I have identified above, describing the claimant undertaking management tasks as part of the respondent’s management team and doing so under the instruction of Mr Sherard.[34]I further find that, on reading Ms Martin’s statement and having seen a form recording the claimant’s enrolment on the respondent’s pay roll, that the respondent authorised Mr Moleta’s enrolment on the respondent’s pay roll on or about the 1st November 2019.[35]I also record that the emails from Mr Sherard in the period 16th December 2019 to and 10th January 2010 refer to Mr Moleta “stepping down from his COO role”, “continuing in a new role akin to a nonexecutive director”, “potential transitioning to an advisory role” and suggesting Mr Moleta removed himself from the respondent’s pay roll .[36]The same correspondence also refers to Mr Moleta’s; “salary starting on 1st November 2019” [c 614].[37]In my findings set out above I have focused on the relationship between Mr Moleta and the respondent. I must also address the contractual relationships between Mr Sherard and Mr Moleta which were, in my judgment, discrete ( although contemporaneous with) the direct relationship between Mr Moleta and the respondent.[38]It is not in dispute that Mr Sherard instructed Mr Moleta in respect of concerns regarding a property dispute with his brother (documents of which are within the claimant’s bundle (but to which I will not refer as the material is highly confidential legal advice and there is no indication that Mr Sherard has consented to their disclosure to this tribunal) and in relation to the potentially contentious issue of his mother’s assets in probate.[39]In my judgment, Mr Sherard’s professional relationships with Mr Moleta were twofold:a. Mr Sherard’s instructions in his capacity of director of the respondent, and;b. Mr Sherard’s personal instructions in respect of his mother’s probate and his private property matters which were not matters that concerned the respondent’s day to day business functions.[40]Mr Sherard’s instructions to Mr Moleta in respect of seeking restrictions and/or an injunction on the sale or development of any part of his family’s real property; were not matters in which the limited company had any interest.[41]I find that Mr Sherard’s instructions on the property matters2, which were largely handled by qualified and specialist lawyers did not amount to any form of contractual relationship between Mr Moleta and the[42]I find the “ring fencing” of the respondent is in reality a description of Mr Sherard’s private intention to avoid the respondent’s assets falling within the ambit of his mother’s estate and thereby the value of those assets being taken into account when her estate, in accordance with her will, was divided equally amongst her children. This too is not an instruction to Mr Moleta from the respondent; it was a private contractual relationship between Mr Sherard (who held all of the shares in the respondent business) and Mr Moleta.[43]It is in my judgment clear that both Mr Moleta and Mr Sherard perceived Mr Moleta as engaged in three discrete tasks by the 17th September 2019 [c446-7] The probate issue, the property issue and the Little Fair work.[44]Mr Moleta’s agreed remuneration for the probate and property work is documented as coming from sources apart which were discrete from the respondent.[45]The remuneration for the management work in the respondent’s care home is documented as a combination of a shareholding in the respondent and a regular weekly sum to be paid from the 1st November 2019; the date by which the parties expected Mr Moleta would be on the respondent’s payroll.[46]In my judgment there was a distinction, understood and agreed by both men, between the work undertaken for Mr Sherard as an individual and the work undertaken for the respondent.[47]I find as a fact that the work undertaken in respect of Mr Sherard’s’ property and probate instructions were not work for the respondent.. The respondent was not a party to either agreement. 2 C354-5 as an example.[48]In respect of those agreements, to which the respondent was not a party, the claimant was neither a worker for or an employee of the[49]The claimant’s status as a worker or employee of Mr Sherard (in his personal capacity) is not an issue which is before me; Mr Sherard is not a respondent in these proceedings.[50]Before turning to the relationship between Mr Moleta and the respondent I record the following finding of fact.[51]I reject the respondent’s evidence (and submissions) that Mr Moleta unilaterally began to involve himself in the running of the respondent’s business at a point in time when he had no authority to do so. I do so for the following reasons.[52]On the evidence before me, Mr Moleta’s first documented act on behalf of the respondent was to write to a member of its staff on the 2nd July 2019 offering her enhanced remuneration and thereby to persuade her not to accept a job with a potential new employer. The subsequent email correspondence, which included Mr Sherard as a recipient, demonstrates that Mr Moleta was offering advice to, and receiving instruction from, Mr Sherard on this issue. He was, in my judgment, unambiguously acting with the respondent’s consent and under the respondent’s control.[53]Mr Sherard’s contemporaneous correspondence express neither surprise or disquiet at Mr Moleta’s actions.[54]I find that contemporaneous documentary evidence contradicts Mr Sherard’s assertion that Mr Moleta was acting beyond the instructions of the respondent; as conveyed to Mr Moleta by Mr Sherard.[55]I also note the co-incidence of dates between the aforesaid offer to the employee, dated the 2nd July and the terms of the proposed agreement between Mr Sherard (as director of the respondent) dated 17th September 2017; which back dated the claimant’s pay in respect for work done for the respondent to the start of July 2019.[56]I find that, from very early July 2019, the respondent had agreed with Mr Moleta that he should work for the respondent in a managerial capacity.[57]I find that Mr Moleta was directly engaged in the running and management of the respondent from early July 2019 until his dismissal. Self Employed, Worker or Employee ?[58]Before setting out my analysis of my findings of fact I direct myself in law as follows:[59]The relevant sections of the Employment Rights Act 1996 are: 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. (4)In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed. (5)In this Act “employment”— (a)in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and (b)in relation to a worker, means employment under his contract; and “employed” shall be construed accordingly. (6)This section has effect subject to sections 43K, 47B(3) and 49B(10)]; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “ worker ”, “ worker’s contract ” and, in relation to a worker, “ employer ”, “ employment ” and “ employed ” have the extended meaning given by section 43K.[60]With respect to the claim under section 47B & 48 ERA 1996: 43K Extension of meaning of “worker” etc. for Part IVA. (1) For the purposes of this Part “ worker ” includes an individual who is not a worker as defined by section 230(3) but who— (a) works or worked for a person in circumstances in which— (i) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them, (b) contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”, ( ba )….. ( bb) …. (c) works or worked as a person providing services in accordance with arrangements made— (2)For the purposes of this Part “ employer ” includes— (a)in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged,[61]The most common judicial starting point for the determination of the issue before me is the application of the “multiple test” set out in judgment of Mr Justice MacKenna in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance 1968 1 All ER 433, QBD. He stated: ‘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.’[62]This passage was approved by the Supreme Court in Autoclenz Ltd v Belcher and ors 2011 ICR 1157, SC. In essence, the test can be expressed as three questions:a. Did the worker agree to provide his or her own work and skill in return for remuneration?b. Did the worker agree expressly or impliedly to be subject to a sufficient degree of control for the relationship to be one of employer and employee?c. Were the other provisions of the contract consistent with its being a contract of service?[63]The essence of the respondent’s submissions were as follows:[64]The claimant had inveigled himself into the respondent’s business at a time when Mr Sherard was in mourning and distracted from his responsibilities as the senior officer of the respondent. Mr Moleta’s involvement was unauthorised and unwanted.[65]The claimant was not integrated into the business; he did not have a relevant email account and he could take time away from the respondent’s business at will to undertake other work. Moreover, the claimant involved himself in aspects of the business which he chose; he was not under the control of the respondent. Further, he was undertaking work for Mr Sherard personally during the period he was claiming to be an employee of the respondent.[66]There was no written contract of employment and, by reason of the above, there was no basis of fact from which such a contract could be implied. Even if some form of contract might be implied, the respondent had never intended to employ the claimant.[67]To determine this issue, I must first address the following:[68]Where the terms of the contract are to be found. If there are written terms, I will need to consider whether it was the intention of the parties, objectively ascertained, that all the terms of the contract be contained in the documents. This is a question of fact ;Ministry of Defence HQ Defence Dental Service v Kettle EAT 0308/06•[69]What the terms of the contract are. If I am satisfied that the contractual documentation is a full record of the parties’ agreement, then identifying the terms of the contract will be a simple matter. However, if the written contract is not the start and end of the bargain struck by the parties, then I will look to the surrounding factual matrix, including such things as the conduct of the parties and any oral exchanges between them. This, too, is a question of fact; Carmichael and anor v National Power plc and James v Greenwich London Borough Council 2007 ICR 577, EAT[70]If the terms are exclusively contained in written documents, then the legal relationship to which those terms give rise is a question of law: Clark v Oxfordshire Health Authority . However, as this case has required an evaluation of the factual circumstances in which the work was done this analysis is very much a case of weighing my findings of fact in the way the law directs; O’Kelly and ors v Trusthouse Forte plc.[71]I find that the claimant was not issued with a contract by the[72]There are a number of documents which set out some elements of the terms on which Mr Moleta worked with the respondent. In my judgment those documents do not set out the complete circumstances of the working relationship between Mr Moleta and the respondent.[73]I have taken into account all of the documents to which the parties referred me, and those to which I referred the parties, several of which I have already referenced in this judgment.[74]The document which is, in my judgment, the most direct expression of the terms on which the respondent offered work to Mr Moleta was recorded in part of a document written on or close to 1st September 2019. The relevant part stated as follows: “LITTLEFAIR On Payroll from 1st November ’19 - £50k per year Backdate from 15th July ’19 - £1,000 per week x 15.5 weeks = £15,500, deferred until further notice 5% shares upfront from 1st November ‘19 5% shares after year 3 contingent of masterplan as follows; - Ringfencing the business - Increasing occupancy to 40 (min 75% private) with a waiting list - Eradicate agency - Stakeholder satisfaction plus - Overall outstanding Refurbishment subject to funding Nick to play squash minimum of 3 hours per week”[75]I find that the above was a summation of the offer of remuneration made by the respondent to Mr Moleta if he accepted the respondent’s offer of an indefinite working relationship between himself and the respondent. In doing so Mr Molata would forgo the higher rate of pay (his daily fee rate) in return for a regular weekly rate , an immediate incentive payment; a 5% shareholding and a further performance related shareholding.[76]I find that Mr Moleta accepted the offer; an offer which included his agreement to delayed payment for his work for the respondent from July and a notable reduction in his future level of remuneration from the[77]The reference to “occupancy” is a performance standard; that there should be 40 persons resident in the respondent’s care home, of whom 75% would be paying fees at a higher rate than that received in respect of residents who received local authority funding. The reference to “eradicating agency” was a performance standard; to reduce the respondent’s staffing cost by direct employment of staff and thereby avoiding paying agency fees. The reference to “Overall outstanding” was a further performance target; to obtain a Grade of “outstanding” following a Care Quality Commission inspection of the respondent’s care home; such a grading would enhance the respondent’s prospects of attracting more residents and more private paying residents.[78]Whilst the document does not refer to the claimant’s title, other documents do, and I prefer Mr Moleta’s evidence to that of Mr Sherard on this issue; The respondent’s offer made in September related to Mr Moleta’s Chief Operating Officer responsibilities, which in the absence of a Care Home Manager, also included responsibilities for many day to day operational matters.[79]The respondent has argued that Mr Moleta was neither integrated into its business nor sufficiently under its control. Several of its factual assertions relevant to these submission I have rejected (the absence of an email address and the self-appointed title of COO are two examples). The respondent argued that the claimant could decide to work at his own choice and cited his absences to play squash during the week and his work on litigation which did not concern the respondent’s business.[80]I find neither argument persuasive. The time off to play squash was recorded in the September document; I find that this regular time off was agreed by the respondent and that agreement noted in writing.[81]I find that it is correct that Mr Moleta was absent from work for several days to prepare for a hearing concerning a property dispute affecting his own family.[82]That absence was notified to the respondent beforehand.[83]I do not accept that Mr Moleta’s conduct indicates that he was free to attend work or not to do so. I do find that Mr Sherard tended to work at home and so Mr Moleta’s day to day activities would not necessarily be known to Mr Sherard. I find that Mr Sherard, as Director of the respondent was content for Mr Moleta to under take tasks relating to Mr Sherard’s personal property disputes and probate matters during the days when he might otherwise have been undertaking his COO responsibilities. In my judgment, in each type of absence recorded above, that absence was with the respondent’s consent; they were not instances of Mr Moleta acting independently.[84]Where Mr Sherard expected Mr Moleta to undertake the probate or property work during Mr Moleta’s hours of work for the respondent, he did so in his capacity as owner and manager of the respondent.
Conclusion
[85]Taking all of the above into account I have come to the following conclusions.[86]In September 2019 Mr Moleta and the respondent reached a formal agreement. The terms of that agreement formalised their existing working relationship, the character of which had developed during July and August 2019. Whilst that agreement was not due to come into effect until 1st November 2019, the working relationship progressed with in September and October 2019 with further integration of Mr Moleta into the business and the announcement of his job title and the character of his responsibilities being communicated to the respondent’s staff, customers and, subsequently to the respondent’s regulatory authority.[87]The scope of the role is reflected in the performance targets noted in the September 2019 record and the significant potential remuneration; a further 5% of the respondent’s shares. In short, a significant proportion of the day to day management of the respondent and its staff was given to Mr Moleta and the greater part of the responsibility for improving the respondent’s financial performance was also his. However, he was always subject to Mr Sherard’s instruction and control.[88]I do not accept that Mr Moleta had any option to substitute another person to undertake his work for the respondent; the character of his work required his continuous involvement in the day to day functioning of the business and the strategic planning. I find that both parties contemplated Mr Moleta providing his service to the respondent personally and that neither party contemplated Mr Moleta being allowed to offer a third party in substitution for his service.[89]In my judgment Mr Moleta’s relationship with the respondent was, for the purposes of section 230 of the Employment Rights Act 1996, that of an employee from the 1st November 2019 through to the date of his dismissal.[90]In light of the above reasons I also find, that at the material times, Mr Moleta was a worker for the purposes of section 43K of the ERA 1996. The date of the claimant’s dismissal[91]The parties agree that the claimant commenced ACAS conciliation on 20th March 2020.[92]They further agree that the Early Conciliation certificate was issued on the 16th April 2020.[93]They also agree that the claim was presented on the 15th May 2020.[94]They agree that the claimant’s working relationship was brought to an end by Mr Sherard, who assert in his witness statement that his email to the claimant, dated the 19th of December 2019, communicated his decision to dismiss the claimant.[95]It is uncontentious to record that Mr Sherard’s email of the 19th December 2019 did not assert that the claimant was “dismissed without notice” or “dismissed today” or otherwise expressly identify the date on which the employment relationship ceased.[96]In Mr Moleta’s witness statement, at paragraph 61, he indicates that he was first informed of his dismissal by an ACAS conciliator who, on the claimant’s evidence conveyed the respondent’s assertion that the claimant had been dismissed on the 22nd December 2019.[97]The respondent’s pleaded case first identified the date of dismissal in the Grounds of Resistance [R 37, paragraph 12] as the 19th December[98]It is common ground between the parties that, if the 19th December was the effective date of dismissal the claim was present one day out with the prescribed period set by section 108 ERA 1996.[99]There are two initial issues for me to determine:a. On what date was the claimant informed that the respondent had decided to terminate his employment ?b. What was the effective date of termination?[100]Subject to my findings of fact on the above there may be a series of further issues to determine under section 111 of the Employment Rights Act 1996.
Findings of fact
[101]The claimant had commenced employment with the respondent on the 1st November 2019.[102]By the 1st December 2019 he had been employed for one month and, for the purposes of section 86(1) of the Employment Rights Act 1996, he had accrued a statutory entitlement to a period of notice: “Rights of employer and employee to minimum notice. (1)The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more— (a)is not less than one week’s notice if his period of continuous employment is less than two years, (b)is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and (c)is not less than twelve weeks’ notice if his period of continuous employment is twelve years or more. (2)The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week.”[103]The claimant had therefore accrued a statutory entitlement to one weeks’ notice by the earliest date on which the respondent asserts the claimant was notified of the decision to dismiss him.[104]The relevant parts of the respondent’s communication, set out in Mr Sherard’s email of the 19th December 2019 stated as follows: “I have asked you to come on board on a consultancy basis and no longer as COO of Littlefair. For the time being I am asking you to stand down from the day to day jobs at Littlefair until such point that we have the business properly organised and protected. After, the recent inspection from CQC and the subsequent meeting, I am happy and confident that Michelle and Nicki can run the home until we get a new manager in or we operate the home with the option as discussed. At this time, there is a lot going on with the injunction with Dan and probate is more important than photocopiers and other aspects that can simply wait. I'm sure you will appreciate this as I am under a lot of stress and we need to discuss which counsel should be used and how we will tackle this going forward as the time it's taking to get this injunction is way too long as l have pointed out before and no one understands why its taking so long. There are matters with regards to the Mrs. [ ] that you will need to bring me up to speed from your following meeting on Tuesday. I think we will need to meet up with my accountant as discussed at such point either next week or in the new year subject to availability. “[105]Mr Sherrad’s statement, at paragraphs 25 onwards, states: “I gave AM one final Deadline (20th December 2019) to honour his remit of ring fencing the business for probate, he did not provide me with the proposal as requested and therefore in my view the relationship had ended.”[106]In the next paragraph he states in the second sentence: “though I aver that AM was permanently self-employed, our engagement ended on the 19th December 2019.”[107]Mr Sherard offered no evidence in chief as to the precise words of any oral communication between the protagonists on the 19th December 2019 and the respondent’s Further and Better particulars of the response did not address the manner, or date, of the dismissal.[108]Mr Moleta’s response to the respondent’s 19th December 2019 email stated, inter alia: “Monday's meeting was scheduled purely to focus on probate with Karen land if required I would accompany the CCTV man to Tifter's, however upon arrival you advised me you and Karen fell out over some issue surrounding the transfer of shares and she had walked out as a result. What resulted from my perspective appeared to be a spontaneous meeting between us where you stated that as a result of conversations you alleged to have had with Nicki, Michelle and David (CQC) and comments they had made, you felt that there was now no real requirement to retain me as C.0.0., however conscious of my value and the increasing challenges that lie ahead for you personally and as MD. of LIttIefair, you stated would like to retain me on a consultancy basis to work at arm’s length.”[109]Mr Moleta, then asked for written details of the departure from his COO role and the potential consultancy role.[110]I also record that, in response to a question from myself, Mr Sharard stated that his statements to Mr Moleta on this issue had been intentionally understated as he was worried that Mr Moleta might react forcefully if he had appreciated Mr Sharerd’s intention; simply the dismissal of Mr Moleta.
The Law
[111]Words that are capable of being interpreted as a resignation or a dismissal may not necessarily amount to such in the circumstances. Broadly speaking, the test as to whether ostensibly ambiguous words amount to a dismissal or a resignation is an objective one to be judged in all the surrounding circumstances (both preceding and following the incident) and the nature of the workplace in which the statement arose must be considered. 112. if the words are still ambiguous, the tribunal should ask itself how a reasonable employer or employee would have understood them in light of those circumstances.[113]The same objective test applies when the ambiguity occurs in correspondence between employer and employee. Where an employee has received an ambiguous letter, the EAT has said that the interpretation ‘should not be a technical one but should reflect what an ordinary, reasonable employee… would understand by the words used’. It added that; ‘the letter must be construed in the light of the facts known to the employee at the date he receives the letter’ — see Chapman v Letheby and Christopher Ltd 1981 IRLR 440, EAT.[114]It is a well-established principle in the construction of commercial contracts that any ambiguity will be construed against the party seeking to rely on it. In Graham Group plc v Garratt EAT 161/97 the EAT held that this principle should also be applied to ambiguous words or acts in the context of a dismissal or resignation. Discussion and Conclusion[115]I find that Mr Sherard’s communications were intentionally unclear. In his own mind he had intended to dismiss the claimant if, as his direction to Mr Moleta (to provide a clear plan for ringfencing the respondent) was not fulfilled by the 20th December 2019.[116]His language in his 19th December email communication referred to the removal of the COO role and the offer of a consultancy agreement. Rather than tell the claimant that he was dismissed, he told him to “stand down” from the day to day tasks and to do so “for the time being”. This communication was forewarning the claimant of the termination of his COO role. The reference to consultancy was clearly a statement of Mr Sherard’s intention to terminate Mr Moleta’s employment relationship with the respondent.[117]Mr Moleta’s response [c961] suggests he saw the 19th December email as a proposal, rather than a decision, by Mr Sherard. Mr Moleta asked for details on the proposal by the 23rd December and indicated he would respondent by the end of December 2019.[118]Mr Sherard’s response was sent in an email dated 3rd January 2000 does not mention dismissal at all.[119]I find the relevant communications between the 16th and 20th December 2019 did not expressly inform Mr Moleta that he had been dismissed. On any reasonable interpretation the communications indicated a future intention to dismiss.[120]I find that Mr Sherard decided to dismiss the claimant on the 20th December 2019; after Mr Moleta had not provided a document relating to the “ring fencing” of the respondent’s assets. The 20th December 2019 decision to dismiss Mr Moleta was not communicated to him on the 20th December 2019.[121]I therefore find that Mr Moleta was dismissed after the 20th December 2019 and for this reason his claim was presented within three months of his dismissal and his claims are within the jurisdiction of the Employment Tribunal.[122]Further, by reason of the operation of section 86 of the ERA 1996, in the absence of any evidence, or argument , of a summary dismissal on the 19th or 20th December 2019, Mr Moleta’s notice period would have extended his employment by one week. In such circumstances the earliest possible effective date of termination, on the respondent’s pleaded case, would have been no earlier than the 26th December 2019; a date which was within three months of the date of the presentation of the claims to the employment tribunal.[123]Lastly, and I the alternative, I find that, such was the degree of intentional ambiguity in Mr Sherard’s conduct, that it would have been very difficult for any person to identify the effective date of termination. Mr Moleta attended work on Christmas Day 2019 and the first correspondence from Mr Sherard on 3rd January 2020 did not expressly state that Mr Moleta had been dismissed in December 2019 or was to be dismissed in January 2020.[124]It would not have been reasonably practicable to expect an employee to be able to ascertain the date of their dismissal in these circumstances. Even if it had been, I find that in all the circumstances of this case, Mr Moleta presented his claim as promptly as was reasonable for the purposes of section 111(2)(b) of the ERA 1996.[1]The respondent’s application to strike out the claim had no reasonable prospect of success.[2]It is just and equitable to order the respondent to pay to the claimant an amount, yet to be determined, with respect to the claimed legal costs and preparation time order.[1]By an application dated the 15th December 2023 the claimant in these proceedings sought orders pursuant to Rule 76(1)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.[2]Those orders are in respect of an application by the respondent to strike out the claimant’s case because, as the respondent pleaded, the claimant was neither a worker or an employee at any material time and, the claim had been presented out of time.[3]The respondent’s applications were heard at Preliminary Hearing, and dismissed following a two-day hearing in July 2022 and deliberations in chambers in August 2002). I found that the claim was within the tribunal’s jurisdiction in all respects.[4]Judgment with reasons was promulgated in October 2022 and I understand the case is listed for a final hearing in October 2025.[5]The current application was referred to me in 2024 and I was, due to an extended period of absence, unable to attend to the matter until my return.[6]Whilst the substantive claim is on-going, I have been informed by the tribunal staff that the respondent has not replied to tribunal correspondence on this issue at all.[7]In particular when I invited the parties to indicate if they would be content for this application to be considered and determined on the papers the claimant agreed and the respondent did not comment.[8]In light of the above, I have decided to determine the merits, and any quantum, based on the papers before me which include my original judgment and documents which were before me in July and August 2022. Those documents exceeded 2,000 pages. 1,600 of which were received from the claimant, and about 450 (including late additions provided by Ms Johns, of counsel for the respondent).[9]I read four witness statements and I note that I found neither Mr Moreta nor Mr Sherard, the owner of the respondent, to be persuasive witnesses. Consequently, the content of the contemporary documentary evidence was the primary foundation of my decision making.[10]I also note that my reasons refer to the relevant documents in some detail and the cumulative number of those relevant documents amounted to a small proportion of the 2,000 pages produced. The Claimant’s Application[11]The claimant asserts that the contemporary documentary evidence, which was not disputed by the respondent, was wholly consistent with the claimant’s assertion of employment/worker status and quite contrary to the respondent’s denial of the same. The basis of the claimant’s argument was set out in the written submissions of counsel, Mr Howells. The respondent has not submitted any response or counter argument.[12]I will give an example from the reasons in my September 2022 judgment:29. “Pertinent to the issue before me, Mr Sherard’s comments of the 3rd October 2019 included the following [c449]: “AM role - since Lily's passing Nick has appointed Andrew as COO and he will take direction from Nick but will be operating the business on the front line and will be looking at how we can improve the entire services, reduce waste, eradicate agency, fill the capacity of the Home and provide a dynamic and rewarding experience for all in the Home. Our exciting plans will be announced soon.”30. The above contemporary document, approved by Mr Sherard, fundamentally contradicts Mr Sherard’s evidence before me.31. A variant of the above text was published to staff and residents in a newsletter dated 10th October 2019; it referred to Mr Moleta; as: “coming on board full time as our Chief Operating officer and will effectively be our manager until we recruit a new home manager” [c 502].32. It further appears that Mr Moleta was described as the respondent’s chief operating officer to the Care Quality Commission’s inspectors and as part of the respondent’s management [c 642] in early December 2019.” … 35. I also record that the emails from Mr Sherard in the period 16th December 2019 to and 10th January 2019 refer to Mr Moleta “stepping down from his COO role”, “continuing in a new role akin to a non-executive director”, “potential transitioning to an advisory role” and suggesting Mr Moleta removed himself from the respondent’s pay roll. 36. The same correspondence also refers to Mr Moleta’s; “salary starting on 1st November 2019” [c 614].”.[13]The above is indicative of the degree to which the respondent’s assertions that the claimant was not “involved” in the respondent’s business was quite untenable in the context of the contemporary documentation which was either drafted, or approved by Mr Sherard; the sole shareholder and owner of the respondent.[14]The documents which were indicative of employment were equally compelling.[15]The respondent had pleaded the 19th December as the effective date of termination, but had not considered the effect of section 86(1) of the Employment Rights Act 996, which in the absence of summary dismissal, would have entailed one week’s statutory notice. Summary dismissal was not argued, or established, by the respondent.[16]Consequently, on the respondent’s own position, the effect of section 86(1) meant that the claim had been presented within the time frame set out in section 111 ERA.
The Law
[17]Mr Howell’s written argument summerised the relevant legal matrix and I will not repeat that summary but I will note the following:[18]The power to award costs by the Employment Tribunal is contained within the Employment Tribunals Rules of Procedure Regulations 2013. Rule 76 specifically deals with the grounds for which a costs order can be made. Rule 78 deals with the ‘amount’ of a costs order and Rule 84 deals with the ‘ability’ of the paying party to pay a costs order.[19]Under Rule 76 (1) "a Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that – (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted”.[20]Under Rule 78(1) “a costs order may –(a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;(b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles …"[21]Under Rule 84, in deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.[22]In terms of general principles, I have reminded myself the following:a. costs are the exception, not the rule;b. costs are designed to compensate the receiving party for costs unreasonably incurred, not to punish the paying party for bringing an unreasonable case, or for conducting it unreasonably.c. I should follow a three -stage process: first, I should decide whether the threshold in Rule 76 had been crossed. Secondly, I should then consider, as an exercise of my discretion, whether that conduct merited a costs order; it was not automatic that because I had the power, I should exercise it.d. If I decided to make a costs order, I should consider the appropriate amount of costs incurred by the claimant in resisting the respondent’s applications. Analysis[23]I first consider the effective date of termination. I consider the matters set out in my earlier judgment which are summerised above.[24]In addition, I note that Mr Howell’s written submission refers to the respondent’s account given to his insurers; that the dismissal of the claimant probably occurred around the 20th December. That is consistent with paragraph 25 of Mr Sherard’s witness statement (paragraph 105 of the 2022 judgment & reasons). 25.I also took into account that the respondent was represented by specialist and respected counsel, at the preliminary hearing.[26]From the above, I have concluded that the respondent was, or should have been, aware that its assertion, in in Mr Sherard’s evidence, of dismissal on the 19th December 2019 was untenable because, the respondent knew, or should reasonably have been aware of the effect of section 86(1) ERA and, in my judgment, the respondent knew that Mr Sherard’s communications with the claimant on 19th December were deliberately unclear.[27]In the above circumstances, to argue and give evidence that the dismissal occurred before the 20th December had no reasonable prospect of success.[28]With regard to the claimant’s status as worker or employee, the respondent’s own documents demonstrated both the terms nature of the claimant’s engagement. The written communications to staff and the respondent’s regulator stated that the claimant was an integral, and senior officer with responsibility for managing the respondent’s staff and the performance of the respondent’s business. The respondent, through Mr Sherard, was the author and source of the documentary evidence which demonstrated the character of the claimant’s working relationship with the respondent and his terms of employment.[29]By reason of the above, I have concluded that the respondent’s application to strike out this aspect of the claim had no reasonable prospect of success. Should the respondent be ordered to pay to the claimant any amount in respect of the claimed costs and preparation time orders?[30]I first note that the relevant rules include the following: “A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make.”[31]The interpretation of the above was addressed in Duhoe v Support Services Group Ltd (In Liquidation) UKEAT/0102/15, at paragraph 23 the EAT stated: “The Employment Tribunal is therefore not able to make both a costs order and a preparation time order. What is the position if it is faced with applications for both types of order in a case where, as here, the Applicant was represented for part of the time and unrepresented for part of the time? In my judgment, it should not require the Applicant to make a choice about which type of application to pursue. The Applicant is entitled to make both applications. The Employment Tribunal may decide the question of entitlement to each order and then decide which type of order to make.”[32]The claimant’s schedule of costs distinguishes the amounts sought by reference to the work done as a litigant in person from the costs incurred whilst instructing professional legal advisors. In principle both may be awarded in this case.[34]The Respondent has not resisted the claimant’s application nor asserted that it cannot afford to comply with an order in the claimant’s favour.[35]In light of the reasons set out in the 2022 judgment and that which is set out above, I consider it just, and in accordance with the tribunal’s overriding objective, to require the respondent to pay an amount in respect of the claimed sums. The Quantum of Costs[36]The Claimant’s schedule of cost relating to the two day preliminary hearing exceeds £13,000.00. This is an unusually large sum. It includes 158 hours of preparation by the claimant and £3,350.00 spent on legal advice. There is a further £900.00 in respect of this application.[37]I have some concerns about the relevance of a proportion of the documents before me at the preliminary hearing and it is unclear to me how the legal fees are all related to the respondent’s strike out application.[38]On the information before me I am not able to deal with the quantum of costs in a just and fair manner. Consequently, I have set out directions in a separate order for an inter partes hearing, to be held via video format.[41]Advice/Assistance “status and strike-out” – COYS London Limited (CLL)[42]Advice/Assistance “status and strike-out” – COYS London Limited (CLL)[43]Advice/Assistance “status and strike-out” – COYS London Limited (CLL)[44]Employee Rescue P.H. Case Management – Attendance/E-Mails/ (ER)[45]Farrar’s & Co – Counsel Fees (FC) TS & Co – Solicitors - Advice/Assistance on PH Matters[46]Civitas – Counsel’s Fees for Wasted Costs Application (CH) Printing, Cartridges & 2-Reams of Paper + Post Bundledocs Fees[49]Donoghues Legal Costs – Review & Bundle Preparation (DD) TBA[50]Remote Attendance for Wasted Costs Hearing TBA Costs Hearing – Costs in Preparation for, and attendance thereof[51]Bundle Preparation as per Para 7 of CMO’s - min 2-days /16-hours Bundledocs Fees[53]Donoghues Legal Costs – Bundle Review & Letter to Tribunal[54]E-Mails/Phone Calls by Claimant to Tribunal – 2 hours[55]Donoghues Legal Costs – Preparation & Attendance of Hearing*[56]Counsel’s Fee’s - Preparation & Attendance of Hearing 55 Attendance by Claimant at Hearing – 3.5 hours17. I note that items 51, 54 and 55 were statements of the time taken by the claimant who prepared the costs hearing bundle, corresponded with the tribunal and attended this hearing with his counsel. Those elements do not within the ambit of the costs regime.18. I have previously decided that the claimant has established the grounds for a costs/ preparation time order to be made. And I have also concluded that it is appropriate to exercise my discretion to make such an award. Neither party has appealed against those decisions.19. This hearing is concerned with the third stage in the process; the determination of the amount of any award.20. I consider that I must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations at this hearing and;21. The amount is determined by the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on preparatory work, and attendance at hearing with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required.22. I have a discretion to consider the respondent’s ability to pay and note that the respondent is a limited company and did not argue that it was unable to afford to pay an award in favour of the claimant.23. Lastly, I take into account that the purpose of costs and preparation time orders is to compensate the receiving party and not to punish the paying party. Questions of punishment are irrelevant to the exercise of the Tribunal’s discretion; Southwark LBC [2004] ICR 884).24. It is necessary to examine what loss has been caused to the receiving party. In this regard the Court of Appeal in Yerrakalva v Barnsley MBC [2012] IRLR 78, held that costs should be limited to those ‘reasonably and necessarily incurred’ and also made clear that whilst there is no requirement for the Tribunal to determine whether there is a precise causal link between the unreasonable conduct in question and the specific costs being claimed, that does not mean that causation is irrelevant. The parties submissions 21. I received written submission from both counsel and subsequent oral argument from both to which I will refer briefly in the context of my reasoning. 22. The Respondent’s first position was that it had been deprived of an opportunity to adequately prepare because the respondent had not received notice of this hearing until 31st March 2025 and had not instructed legal advisors until 22May 2025. I have considerable sympathy for the respondent’s legal advisors and the quality of Ms Platt’s submission is to be commended in such circumstances. However, the respondent appears to have taken no steps to prepare for seven weeks after receiving the tribunal’s notice. This dilatory approach was similar to its previous conduct in preparation for the preliminary hearing of July 2022. I note no application for an adjournment was presented at a reasonably prompt time. In these circumstances I considered it to be in the interests of justice to allow the respondent time to consider a copy of the relevant documents whilst I re-read aspects of the 2022 hearing bundle. 23. Ms Platt’s additional arguments focused on the claimant’s failure to express an election between costs and a preparation time order and emphasised the respondent’s perception that the claimant had undertaken an excessive amount of preparation time for the 2022 hearing part of which would be relevant to the liability hearing. 24. Mr Vines argued that the claimant’s preparation time was proportionate, he was a litigant in person who had erred on the side of caution to ensure all the possible relevant material was available. He disputed Ms Platt’s argument that the issue of jurisdiction would have occupied time at the final hearing in any event and thus the cost would inevitably have been incurred in any event. Moreover, if the respondent’s conduct in 2022 was unreasonable, to adopt the same approach at the final hearing would also have been unreasonable. Discussion and conclusions on the Quantum of a Costs Order25. I noted that the claimant had instructed a firm of solicitors called Coys of London to advise upon the conduct of this litigation from around May 2020 and they were engaged at least until September 2020.26. Based on items 4 to 19 in the claimant’s schedule of his time spent on preparation, the claimant instructed a firm called Employee Rescue in December 2021 through to May 2022. A director of that business represented the claimant at the 21st January 2022 case management hearing.27. The claimant was represented by a person with legal qualifications and employment law experience but that person was not, on the face of the record of the case management hearing, a member of the law society, the Chartered Institute of Legal Exacutives or a member of the bar.28. The claimant instructed a member of the bar, via direct access, around March 2022. That agreement was confirmed in writing on the 11th March 2022 and signed by the claimant on the 18th March [236]. Subsequently he also instructed a firm of solicitors (TS & Co) in May 2022.29. The barrister was instructed to advise and represent the claimant at the 2022 preliminary hearing but withdrew from her instructions around the 4th July 2022 [243] less than 10 working days before the hearing. Her reason for doing so is not apparent from the claimant’s partially redacted copy of her chambers’ correspondence.30. It appears from the above that the claimant has taken advice throughout most of the period which commenced with the presentation of the claim form in May 2020. It further appears that he was advised and represented by Employee Rescue between December 2021 until March 2022 and thereafter that Counsel was instruct to advise and represent the claimant between 11th March and 4th July 2022. The amount of costs incurred by the claimant that flow from the respondent’s unreasonable conduct The claimant claims £475.00 for the legal fees charged by Coys of London Limited.31. The claimant has disclosed a partially redacted extract from a bank account which shows his payments to this firm of £620.00 between the 5th May and 29th June 2020 [pages 231-235]. These payments predate the claimant’s receipt of the ET3 response; which the employment tribunal sent to the claimant by a letter dated the 9th September 2020. [254].32. The sums claimed predate the respondent’s denial, in these proceedings, of the claimant’s status as a worker/employee and they predate the pleaded denial of jurisdiction. The claimant’s own summary of the topics discussed does mention “status” once. He also recorded “drafting”, “case management” “PH” and “witnesses”. As topics of discussion with Coys of London.33. The first and second payments pre-date the claimant’s receipt of the ET3. The third may have occurred after receipt of the ET3 but, given that record of the claimant’s payments to this firm of solicitors (as noted above), that seems very unlikely.34. On the evidence before me I am not persuaded that these legal costs, which were paid to Coys of London Limited before the 29th June 2020, were incurred as a consequence of the respondent’s unreasonable conduct. Employee Rescue35. The claimant has disclosed a document [249] which shows the following; “EMPLOYEE RESCUE - £1,250.00 3rd Party Payment, Monday 28th February, 17:04”. This payment was made to Ms Cilinnie Ngo-Pondi, who represented the claimant at the case management hearing conducted by EJ Dyal on 21st January 2022 [23=33].36. The claimant’s preparation time schedule asserts a little over 900 minutes of communication/drafting of communications with “ER” in the period prior to, and post the 21st January 202 case management hearing.37. I note that the payment to “ER” recorded on page 249 is £650.00 less than the sum claimed in the schedule of legal costs [10, entry 44]. I note that the claimant has not provided a fee note or bill from Employee Rescue or Ms Ngo Pondi.38. I find that the case management hearing was responsible for the overall management of the claims, not just the issues of jurisdiction that are pertinent to the costs application.39. There was a substantial analysis of the claimant’s pleaded case and agreement of the orders necessary to progress all those claims to a final hearing. The parties attendance at a Case Management Hearing, would have been required if the respondent had not unreasonably raised the jurisdictional issues.40. On the evidence the claimant has put before me, the costs schedule for the fees of Employee Rescue are higher than the amount paid by the claimant.41. On the evidence before me the sum paid by the claimant was not entirely incurred as a consequence of the respondent’s unreasonable conduct. Applying my experience of conducting case management hearings and my detailed knowledge of this claim, I consider that no more than £500.00 of the total is reasonable referable to the respondent’s unreasonable conduct at that stage of the case. Instructions to counsel from Farrar’s Buildings42. The Claimant’ instructed a counsel in March 2022 to advise and represent him at the July 2022 preliminary hearing. In correspondence dated 4th July 2022 the Chambers referred to instructed counsel’s withdrawal. Two paragraphs of that letter have been redacted by the claimant so I am unaware of counsel’s reasons for withdrawal.43. The claimant, was reimbursed in the sum of 1,080.00 which reflected the time counsel had spent in preparation prior to withdrawal.44. It is evident from the correspondence that counsel was instructed to advise, prepare and attend the July 2022 preliminary hearing and the sum of £2,520.00 was paid to counsel solely to that purpose.45. I find that the claimant incurred the costs of £2,520.00 as a consequence of the respondent’s unreasonable conduct. Tom Street & Co: £500 and £30.00 payments on 14th June 202246. I have no indication of the character of the claimant’s instructions to this firm albeit I am aware that the firm has an employment law practice.47. I note that the payment was made during the period in which counsel was actively advising the claimant / preparing for the Preliminary Hearing.48. I have no reasonable basis, from the available evidence, to cause me any doubt that the claimant’s assertion is true.49. I find that the legal costs of £530.00 were incurred as a consequence of the respondent’s unreasonable conduct. Costs of the presentation and preparation for this Hearing.50. These costs were undoubtedly incurred as a consequence of the respondent’s unreasonable conduct. The Respondent, if not its counsel, had six weeks to prepare for this hearing and has not advanced any specific argument.51. The instruction of counsel was a proportionate way of presenting the claimant’s application at hearing with which the claimant had no familiarity. Counsel’s fees were conservative and entirely in proportion with the pleaded costs claim.52. I find that the legal costs of Durham and Co Solicitors (£1,333.20) and counsel (£1,500.00) were incurred as a consequence of the respondent’s unreasonable conduct.53. I do not allow items 51,54 and 55 as these are aspects of preparation time undertaken by the claimant. As I have concluded that this case properly resolved as costs claim I have no jurisdiction to make an award for the claimant’s preparation time. The disbursement claims54. Whilst I have considerable concerns about the proportionality of the claimant’s approach to the jurisdictional issues dealt with at the July 2022 preliminary hearing, I do accept that the burden of assembling bundles, printing, binding, and delivering the same was greatly increased by the respondent’s unreasonable conduct.55. I allow the claim for those costs which amount to £157.25. 56. By reason of the above I order the respondent to pay to the claimant the total sum of £6,540.45.
The Law
Analysis
[1]This judgment addresses an application by the respondent (the Application) for reconsideration of the Tribunal’s reserved judgment sent to the parties on 16 February 2026 (the Judgment), specifically the part of paragraph 4 of the Judgment underlined below: “4. The complaint of unauthorised deductions from wages is well-founded in part. The Respondent made unauthorised deductions from the Claimant's wages in the period 1 November 2019 to 16 April 2020 in respect of both salary and the lump sum payment contractually due to him, but not in respect of any entitlement to shares.”[2]Although the Application does not specifically mention paragraph 4 of the Judgment, it does refer to paragraphs 155(b) and 159 of the reasons that underpin it. It is an application properly made under Rule 69, and it was filed within the 14-day period provided for in that Rule.[3]Rule 70 sets out the relevant process for reconsideration. It falls to me as the Employment Judge on the original panel to consider whether Rule 70(2) applies: “If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal.”[4]I have considered the Application and the documents referred to therein. In my judgement, there is no reasonable prospect of the original decision being varied or revoked. This is for the following reasons.[5]I do not consider there is any reasonable prospect of the respondent successfully persuading the Tribunal that EJ Powell did not find the claimant was entitled to the lump sum payment of £15,500 in his judgment. Such a finding is, at its clearest, in paragraph 75 of EJ Powell’s judgment.[6]In any event, even if there was no finding to that effect made by EJ Powell, I do not consider there is any reasonable prospect of the respondent successfully persuading the Tribunal that the lump sum payment was subject to any condition. Such a condition is not recorded in KM’s written notes of the 17 September 2019 meeting (page 73 of the full PDF scan) nor in any typed-up version of those notes in the papers. The alleged condition upon which the respondent seeks to rely appears in a document [R1118- 1119] that seemingly post-dates the 17 September 2019 meeting (by its references in the past tense to what “was agreed at the meeting”) and, on its face, is attached to consideration by Mr Sherard of re-negotiated terms in relation to the claimant’s work for Mr Sherard on probate matters. It is not, as the respondent submits, “on the face of the very document that the Tribunal relied upon”.[7]The respondent also raises a further or alternative ground, which is that the reasons (paragraph 155) record “It is common ground that the Claimant was not paid his salary during his period of employment nor was he paid the lump sum due”, whereas the respondent does not accept that it is common ground that no payments were made. The respondent notes that a payment of £3,000 was made as a goodwill gesture in around 14 January 2020. The existence of this payment does not undermine what is said in paragraph 155. However, for the avoidance of doubt, this payment is a matter that the respondent is entitled to raise when the Tribunal comes to quantify the financial award that is due to the claimant in respect of the complaints upon which he succeeded and can properly be considered at that stage.[8]The Application is therefore refused. Date: 4 March 2026 Approved by: