Mr P Nsamu v Lewis Coaches and others: 2302447/2020
EMPLOYMENT TRIBUNALS
Case No 2302447/2020
Between
Mr P NsamuClaimantLewis Coaches and othersRespondent
Before
Employment Judge L BurgeMr D Lamina (instructed by representative) for claimantMr T Goldup (instructed by Advocate) for respondentDate 23 August 2022
REASONS
[1]At a Preliminary Hearing on 10 February 2022, Employment Judge K Andrews identified that the Claimant had brought claims ofa. unfair dismissal;b. automatically unfair dismissal and detriment because of whistleblowing (the protected disclosures being both an oral complaint and written grievance);c. race discrimination –direct, indirect, harassment & victimisation (the protected acts being the same as the protected disclosures); andd. unlawful deductions from wages.[2]Today’s preliminary hearing was listed by EJ K Andrews to determine the preliminary issue of the Claimant’s employment status, namely whether he was an employee or worker of any of the Respondents for the purposes of both the Employment Rights Act 1996 and the Equality Act 2010.[3]I agreed with the parties at the start of the hearing that the issues for me to decide were:a. Was the Claimant an employee or worker within the meaning of section 203 of the Employment Rights Act 1996?b. Does the Claimant fall within the definition of ‘employment’ set out in section 83 of the Equality Act 2010?[4]The Tribunal heard evidence from the Claimant on his own behalf and from Mr Lewis on behalf of the Respondents.[5]There were two bundles of documents, one of 109 pages and one of 421 pages.
Findings of fact
[6]The following facts are only found in relation to whether the Claimant is an employee or a worker or neither.[7]The Claimant is a certified panel beater and spray painter for various types of vehicles including lorries and trains.[8]Mr Lewis is a Director of GW Facilities Ltd and has been since it was incorporated in October 2016. He was responsible for the financial side of the business but is now semi-retired, working two days a week. He gave evidence to the Tribunal, that is accepted, that “Lewis Coaches” is a trading name for GW Facilities Ltd but it is not a legal entity in its own right. GW Facilities Ltd is a coach hire business trading as Lewis Coaches providing coaches for hire across London, North West Kent and South West Essex. The size of hire vehicles range from eighteen seats to fifty seats.[9]Mr Lewis is also a Director of Elam Garages Ltd and has been since November 2008. Elam Garages was Mr Lewis’ father’s property company that rented garages. It never had any employees. Elam Garages has not actively traded for eight years and went into creditors voluntary liquidation on 7 March 2022.[10]At the beginning of February 2018 the Claimant went to Nathan Way, the premises of GW Facilities Ltd, looking for work as a panel beater and spray painter. He was given a trial fixing the rear bumper and repairing/spraying a mini coach. He passed the trial and was offered on-going work repairing and spraying GW Facilities Ltd’s fleet. He wanted £27 per hour, but GW Facilities Ltd would only pay £10 an hour, which the Claimant accepted. There was nothing written, it was a verbal agreement.[11]The Claimant worked for GW Facilities Ltd for over two years. He worked most weeks. The Claimant had two children and worked flexibly so that he could care for them. The Claimant gave evidence that he worked 5 full days a week. This is rejected because it is clear from bank records that his pay varied and he said himself that he had to work flexibly to look after his children. I find as a fact his pay reflected the hours that he worked. The Claimant was only paid for the hours he worked - he did not get paid holiday pay or sick pay.[12]The work the Claimant did was always dictated by GW Facilities Ltd - they had a fleet of vehicles that needed repairing/spraying and there was always work for the Claimant to do. The Claimant had keys that let him in to the yard at Nathan Way and also into the unit where he worked on the vehicles. He worked with Mr Lawson, an employee of GW Facilities Ltd. The Claimant had his own spray gun but all the other tools he used were owned by GW Facilities Ltd.[13]The Claimant was allowed to use the workshop, on occasional Saturdays, to repair/spray a private vehicle and would be paid directly by the owner of the car. This did not happen very often - the Tribunal finds it happened on average once a month.[14]Mr Lewis gave evidence to the Tribunal that in theory the Claimant would have been able to send a substitute although this was never discussed and never arose in practice. It was always the Claimant who came and worked at Nathan Way. There was a sign in sheet for everyone who worked at Nathan Way, this was a record so GW Facilities Ltd would know who was in the premises if there was a fire. When the Claimant’s car stopped working GW Facilities Ltd lent him a car belonging to one of the drivers, and the Claimant ultimately bought it.[15]When the covid pandemic hit in March 2020 GW Facilities Ltd put its employees on furlough. They did not furlough the Claimant. He was told there was no more work for him. He returned the keys to Nathan Way.[16]Looking at the amount the Claimant was paid, as set out in GW Facilities Ltd’s bank account, I find that the Claimant worked the hours stated in the right column below: Date Pay Hours worked 09/02/2018 250 25 29/03/2018 300 30 13/04/2018 300 30 08/05/2018 300 30 21/05/2018 500 50 01/06/2018 250 25 08/06/2018 200 20 15/06/2018 300 30 06/07/2018 400 40 02/07/2018 200 20 13/07/2018 300 30 23/07/2018 290 29 27/07/2018 200 20 13/08/2018 100 10 17/08/2018 150 15 24/08/2018 325 32.5 31/08/2018 300 30 07/09/2018 500 50 21/09/2018 500 50 01/10/2018 500 50 08/10/2018 350 35 12/10/2018 300 30 19/10/2018 400 40 02/11/2018 300 30 09/11/2018 300 30 30/11/2018 200 20 14/12/2018 300 30 11/01/2019 400 40 18/01/2019 300 30 25/01/2019 450 45 01/02/2019 200 20 08/02/2019 500 50 22/02/2019 500 50 01/03/2019 250 25 08/03/2019 250 25 15/03/2019 350 35 29/03/2019 450 45 29/04/2019 200 20 10/05/2019 300 30 03/06/2019 100 10 07/06/2019 200 20 17/06/2019 300 30 12/07/2019 100 10 19/07/2019 300 30 16/08/2019 400 40 04/09/2019 190 19 09/09/2019 500 50 13/09/2019 360 36 20/09/2019 300 30 04/10/2019 200 20 21/10/2019 100 10 08/11/2019 200 20 18/11/2019 350 35 29/11/2019 200 20 06/12/2019 400 40 20/12/2019 150 15 03/01/2020 200 20 10/01/2020 200 20 17/01/2020 300 30 31/01/2020 200 20 14/02/2020 400 40 06/03/2020 400 40 13/03/2020 100 10 20/03/2020 300 30 27/03/2020 400 40 03/04/2020 100 10 20/04/2020 100 10 15/05/2020 150 15 TOTAL HOURS 1966.50 WORKED[17]The Claimant worked 1966.5 hours from 1 February 2018 until 15 May 2020 (119 weeks). He therefore worked an average of 16.5 hours a week.
The Law
[18]Section 230 Employment Rights Act 1996 (“ERA”) sets out the definition of “employee” and “contract of employment”: “(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.”[19]Case law has established that personal service, control and mutuality of obligation are required in an employee/employer relationship under the ERA. However, the focus must be on the statutory wording (Uber BV and ors v Aslam and ors 2021 ICR 657).[20]Section 230(3) ERA sets out the definition of “worker”: (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.”[21]For claims under the Equality Act 2010 (“the EQA”) the definition of “employment” is set out in section 83 EQA as follows: (2)“Employment” means— “(a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work …”[22]In Pimlico Plumbers Ltd v Smith [2018] IRLR 872, the Supreme Court made it clear that even though the s.83 EQA definition does not expressly exclude from the concept a contract in which the other party has the status of a client or customer, “this distinction has been held to be one without a difference” (per Lord Wilson, at paragraphs 13 and 14).[23]In the case of Uber BV and ors v Aslam and ors 2021 ICR 657, the Supreme Court considered Autoclenz Ltd v Belcher and ors 2011 ICR 1157 and in the judgment of Lord Leggatt, “the primary question was one of statutory interpretation, not contractual interpretation”.[24]In Sejpal v Rodericks Dental Limited [2022] EAT 92 the Employment Appeal Tribunal reminded Tribunals that when determining whether an individual is a worker pursuant to s.230(3)(b) ERA, it is the statutory test that needs to be applied: “Concepts such as “mutuality of obligation”, “irreducible minimum”, “umbrella contracts”, “substitution”, “predominant purpose”, “subordination”, “control”, and “integration” are tools that can sometimes help in applying the statutory test, but are not themselves tests. Some of the concepts will be irrelevant in particular cases, or relevant only to a component of the statutory test. It is not a question of assessing all the concepts, putting the results in a pot, and hoping that the answer will emerge; the statutory test must be applied, according to its purpose.”[25]The Department for Business Energy and Industrial Strategy “Guidance Employment status and employment rights: guidance for HR professionals, legal professionals and other groups” (Published 26 July 2022) (“BEIS Guidance”) is not binding on Employment Tribunals but is useful guidance. Conclusions Who was the employer?
Conclusions
[26]The Claimant claims to be an employee of all three Respondents. He had arrived at Nathan Way and seen the sign for Lewis coaches. He had never received a written agreement nor payslips. It is not surprising he was not sure who his employer was.[27]On his bank statements payments were shown as being from “GW FACILITIES LT LEWIS”. Mr Lewis confirmed that “Lewis Coaches” was the trading name of GW Facilities, the third Respondent. Elam Garages Ltd has not traded since November 2008 and since March 2022 has been in liquidation.[28]I conclude that the Claimant’s employer was GW Facilities Ltd, the Third Respondent. Was the Claimant an “employee” of GW Facilities Ltd (s.230 ERA)?[29]The statutory wording says there must be a contract. The true nature of the agreement must be ascertained by looking at the whole picture. I conclude that the Claimant and GW Facilities Ltd entered into a verbal contract for the Claimant to work at Nathan Way fixing and spraying GW Facilities Ltd’s coaches. The work was flexible and enabled the Claimant to look after his two children and come and work when it suited him. His hours varied and depended upon when he decided to work. The Claimant would be paid for the hours he did, working on average 16.5 hours per week from 1 February 2018 to 15 May 2020. Once a month he would bring in a private vehicle to work on in Nathan Way but I conclude that this did not affect the work that he did for GW Facilities Ltd.[30]It was always the Claimant who attended to do the work, there was no discussion about whether he could have sent a substitute. I conclude that the Claimant had to do the work himself.[31]The BEIS Guidance states: “Control is best understood as how much freedom the individual has to decide for themselves over how, where, and when the work is done. Factors to consider can include who gives out the work, who specifies how, where and when it is to be done, who sets the rate of pay for each assignment, who provides the equipment, or whether the individual has to wear a uniform or specific branding. Day to day control of work is not a requirement, but the employer must have ultimate control by retaining a right to give instructions and for the employee to follow them (provided they were reasonable) or be at risk of disciplinary actions up to and including dismissal”[32]The Claimant had the freedom to decide whether to work and what hours he would work. When he was in work he would do the work GW Facilities Ltd required to be done. GW Facilities Ltd set the rate of pay at £10 per hour. The Claimant had his own spray gun but all the other tools he used were owned by GW Facilities.[33]There was no commitment for the Claimant to attend work, however, once he attended, GW Facilities provided him work and the Claimant was obliged to do it.[34]I conclude that because the Claimant could decide upon his hours of work, and decide whether or not to attend work, the relationship lacked the relevant “control” that would be present in an employee/employer relationship. Was the Claimant a “worker” within the meaning of s.230(3) ERA and in “employment” within the meaning of s.83 EQA?[35]The Claimant worked under an oral contract with GW Facilities Ltd. As stated above, he was to provide personal service – it was him who attended work to undertake the repairs/spraying. There was no discussion about whether he could send someone else, nor did he.[36]The Claimant was not operating an independent professional or business undertaking whereby GW Facilities Ltd was his client. While the Claimant had asked for £27 per hour, GW Facilities Ltd had rejected this and paid the Claimant £10 per hour. GW Facilities Ltd determined the work that was done and the Claimant worked alongside others, having a key to let himself in. There was no company name, no business undertaking, the Claimant was simply paid £10 for the hours he had worked into his personal account. Once a month the Claimant would bring in a personal job, however, this limited exception does not undermine the conclusion that GW Facilities Ltd was not his client or customer.[37]The Claimant therefore satisfies s.230(3)(b) ERA – as he worked under: “any other contract … 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”.[38]The Claimant was therefore a “worker” of GW Facilities Ltd.[39]Given that there is little distinction between the test for a “worker” under s.230 ERA and “employee” under EQA (Pimlico Plumbers), it follows that the Claimant is also in “employment” for the purposes of s.83 and the protection from discrimination provisions of the EQA.