Mr N Agabi v Brigit's Afternoon Tea Ltd: 2303023/2024

EMPLOYMENT TRIBUNALS

Case No 2303023/2024

Between

Mr N AgabiClaimant

Brigit's Afternoon Tea LtdRespondent

Before

Employment Judge Tueje

In person for claimant

Ms Ibrahim (instructed by counsel) for respondent

Date 13 December 2024

JUDGMENT

At the relevant time, the claimant was not an employee and/or worker of the respondent as defined by section 83(2) of the Equality Act 2010. The claim is therefore dismissed because the Tribunal does not have jurisdiction to determine it.

REASONS

[1]The matter was listed for a preliminary hearing to determine whether the claimant is a worker, as defined by section 83(2) of the Equality Act 2010.

[2]The respondent is a bakery and tour bus operator of 12 route master buses providing tours of London while afternoon tea is served onboard. The claimant was hired as an entertainer from 21st July 2023 until 3rd March 20241.

[3]Early conciliation started on 14th February 2024 and ended on 22nd March 2024. The claim form was presented to the Tribunal on 22nd March 2024. It was 1 These are the dates given in the ET1 claim form, different dates are given elsewhere, for instance in the claimant’s witness statement dated 3rd November 2024. accompanied by a 5-page document/attachment. The respondent’s ET3 form and Grounds of Resistance are dated 24th April 2024.

[4]The substantive claim is based on the following complaints:4.1 Direct disability discrimination;

4.2 Indirect disability discrimination;

4.3 Discrimination arising from disability;

4.4 Direct race discrimination; and

4.5 Indirect race discrimination.

[5]The respondent denies the substantive allegations, and additionally maintains the claimant was self-employed so is not entitled to the protection of section 83(2) of the Equality Act 2010.

[6]On 28th May 2024, Employment Judge Fredericks-Bowyer directed that: The claimant's employment status needs to be confirmed before the claims can continue. I have directed a public preliminary hearing is listed to consider the claimant's employment status.

[7]Although concluding parts of the letter suggest the preliminary hearing would also deal with whether the claimant was disabled, in light of the clear text above, references to the preliminary hearing determining whether the claimant is disabled may be an error. In any event, the respondent confirmed it accepts the claimant is disabled as a result of Generalised Anxiety Disorder. Furthermore, having found against the claimant in respect of his alleged worker status, and consequently dismissing the claim, the issue of whether he is disabled does not need to be determined.

[8]The preliminary hearing was a remote hearing, which took place on 12th November 2024. The claimant, who was not legally represented, gave evidence. The respondent was represented by Ms Ibrahim, counsel, with Mr Sahabi, the respondent’s operations manager, giving evidence on its behalf. I read the pleadings, and the parties provided additional documentation as set out below.

[9]The Tribunal was provided with the following documents by the claimant:9.1 An electronic hearing bundle containing 97 pages;

9.2 An electronic evidence bundle containing 83 pages;

9.3 An undated 8-page skeleton argument;

9.4 An application to amend the claim form;

9.5 An Exhibit A evidence bundle containing 31 pages; and

9.6 An e-mail from the claimant sent on 12th November 2024 attaching a document titled “Rejection of Skeleton Argument.”

[10]The Tribunal was provided with the following documents by the respondent:10.1 A witness statement dated 5th November 2024 from Mehran Sahabi, the respondent’s operations manager, plus exhibits (25 pages);

10.2 An bundle containing 7 authorities from the respondent; and

10.3 A skeleton argument on behalf of the respondent (which was not taken into account for the reasons stated at paragraphs 12 to 16 below)

[11]The Tribunal announced its decision orally at the end of the hearing on 12th November 2024. By an e-mail sent to the Tribunal on 13th November 2024 the claimant requested written reasons. That e-mail was forwarded to me on 14th November 2024. These are the written reasons. The Respondent’s Skeleton Argument

[12]Before hearing any evidence, the Tribunal dealt with the claimant’s e-mail sent on 12th November 2024 referred to at paragraph 9.6 above. As the subject title of the document indicates, the claimant objected to the respondent’s skeleton argument which was sent to him the previous day.

[13]Ms Ibrahim explained the skeleton argument contained the submissions she would be making as part of her oral closing submissions. She therefore considered the claimant would not be prejudiced, and may in fact benefit from having the skeleton argument, which gave him advance notice of the respondent’s submissions. Additionally, she argued that the preliminary issue raised a legal question so it would be necessary to consider the authorities, which were also referred to in her skeleton argument.

[14]Despite what Ms Ibrahim said about her skeleton providing advance notice of her closing oral submissions, the claimant nonetheless maintained his objection to the skeleton argument on the grounds that he had had insufficient time to absorb the contents due to his mental health problems.

[15]Taking into account that Ms Ibrahim’s skeleton argument had been sent to the claimant not long before the hearing, and he objected to it being relied on, I informed the parties I would not take the contents into account, and asked Ms Ibrahim to present her arguments orally.

[16]I clarified with the claimant that it was only Ms Ibrahim’s skeleton argument he objected to, and not the authorities. He confirmed that was the case. In any event, I note that the claimant has cited authorities in his own skeleton argument, so it would be inappropriate to exclude the respondent’s bundle of authorities, yet allow the claimant to rely on authorities. Particularly as deciding the preliminary issue requires an analysis of statutory and case law authorities, and there was some overlap between some of the authorities each party relied on.

[17]The symptoms of the claimant’s Generalised Anxiety Disorder include brain fog and confusion. Therefore, as a reasonable adjustment the proceedings were conducted in a manner that allowed him time to process information and documents, and we took periodic breaks.

[18]After dealing with the respondent’s skeleton argument, we took a break before starting the preliminary hearing so that, amongst other things, a copy of the claimant’s bundle could be forwarded to Ms Ibrahim. The preliminary hearing began at around 11.20am.

Factual Background

[19]Unless otherwise stated, the facts set out in this factual background are agreed or unchallenged.

[20]Although the claimant was hired by the respondent to work as an entertainer, in his online profile the claimant describes himself as an actor and performer. His CV sets out his work history, including film work that he has done, and states his ambition is to do more film work. However his profile does not list his work at the respondent company.

[21]The respondent’s unchallenged position is that individuals who are entertainers only are all engaged on a self-employed basis. That is set out at paragraph 2 of the Grounds of Resistance, and paragraph 28 of Mr Sahabi’s witness statement.

[22]In his oral evidence, the claimant accepted he wants to work as an actor, and that he differentiates between working as an entertainer and an actor.

[23]It’s common ground that the claimant did not have a written contract. In his witness statement dated 3rd November 2024, the claimant says prior to being hired by the respondent, he was communicating with its entertainment manager, JP Boriau regarding working as an entertainer. The claimant’s witness statement continues (at paragraph 2): However, in line with the Employment Rights Act Section 230.(3,b) I was a Limb(b)worker and it was a verbal agreement made on 30 May 2023 between my self and the Respondent’s Entertainment manager Mr J P Boriau. (See page 1 of the Evidence Bundle).

[24]Page 1 of the evidence bundle contains WhatsApp messages between the claimant and Mr Boriau exchanged on 30th May 2023, which indicate they spoke. The claimant’s statement refers to a “verbal agreement”, and so the messages do not specify whether, and if so, what, working arrangements may have been discussed.

[25]Prior to working with the respondent, the claimant also observed a shadow tour as a form of training for which he was paid.

[26]Paragraph 4 of the claimant’s witness statement continues by stating “Mr J P Boriau mentioned that adding me to payroll was doable and that he would reach out to HR to place me on a 0 Hour Contract. However, he did not follow up on his issue with me (Please see page 3 of the Evidence Bundle).”

[27]Mr Boriau’s message in response, sent on 21st July 2023, reads: “That’s doable absolutely, I can get the HR to put you on a 0 hour contract. Let me confirm on Monday.”

[28]However, he was not given a zero hours contract, and in his witness statement, the claimant says: “I decided not to pursue the matter further because I was concerned that doing so might lead to my gradual exclusion from employment due to the absence of a signed contract … But my plan was to try to work for them full-time to establish a form of employer and employee relationship.”

[29]It’s common ground the claimant was not required to work a set or minimum amount of tours. It’s agreed that work was allocated on the basis of the entertainers telling the respondent when they were available, the respondent might then offer them a tour, which the entertainer was free to either accept or reject. The claimant submitted invoices for each tour he worked on, based on the rate of pay set by the respondent, which the respondent paid to him directly.

[30]It is also common ground that the respondent provided scripts for entertainers to use. The respondent states in most cases following the scripts was not compulsory as entertainers were given latitude. However, there were some themed tours, such as Peppa Pig, which were more prescriptive to comply with licencing requirements. Some themed tours also required entertainers to were a uniform or costume such as the Grinchmas.

[31]There is no dispute that while working with the respondent the claimant had other jobs. In his oral evidence the claimant said that he worked for SAW until October 2023, and simultaneously worked for BreakAway bike tours (“BreakAway”). The claimant stated it was not unusual for actors to have “side work” for instance in hospitality. He explained his work on tours for the respondent and on the bike tour was side work because acting work was short term. He also said that apart from acting jobs, all other work he did was as an employee, where he was paid wages which were taxed on a PAYE basis.

[32]At paragraph 6 of his witness statement, the claimant says: “On 1 October 2023 I received a email from Mr J P Boriau which contained a job description that I now believe to be a written statement of Employment particulars. The email detailed my job responsibilities, tasks and corresponding remuneration.”

[33]In his oral evidence the claimant said from around October 2023 to January 2024 he intended to work for the respondent full time. In support of this he relied on a message he sent to BreakAway on 9th November 2023 which stated: Looks like I have found a good balance of work. Work full time from April til August with you and full time for Birgitta from mid October til January. And then any tours you both have lying around.

[34]He accepted there were no documents or communications in any of the bundles confirming he informed the Respondent about his intention. Although he also relied on the fact that the invoices he submitted during this period reflected that he was effectively working full time hours.

[35]Additionally, the claimant also relies on receiving an Enhanced DBS certificate naming the respondent as his employer as evidence that he was the respondent’s employee.

[36]His witness statement continues: “On 21 Of November 2023 Mr J P Boriau added me to an APP called When I Work. It is an app that employers use to organize work schedules for their employees. At this point, I considered myself an employee who had to manage my own taxes. This situation was unusual, but I had no alternative.”

[37]As to attending for allocated shifts, the claimant accepts there was one occasion he cancelled a tour assigned to him by the respondent because of a clash with a BreakAway tour. But he disputed the respondent’s contention that his other working commitments caused him to cancel tours on any other occasions, and no other occasions of cancelling a tour with the respondent due to his other work commitments was put to him.

[38]However, Ms Ibrahim put to him various other occasions when he arranged a substitute to cover his tours, as set out at paragraphs 17.1 to 17.25 of Mr Sahabi’s witness statement. These paragraphs detailed various messages where the claimant was mostly unable to do a rostered shift, or on other occasions when he was late. And he accepted that the respondent was flexible where entertainers arranged substitutes, although he said that was the only aspect of the working arrangement that was flexible.

[39]A selection of the examples in Mr Sahabi’s witness statement of when the claimant tried to arrange a substitute or was unable to carry out one of his allocated tours were as follows:39.1 He sent a message to Mr Boriau on 8th November 2023 explaining he was unable to travel into work that day because he had lost his bank card. It seems he subsequently found his bank card, but missed the tour.

39.2 11th November 2023 he asked if someone would cover his tour that day.

39.3 At 9.42am on 17th December 2023 the claimant e-mailed the entertainers’ WhatsApp group asking if anyone wanted the shift he was due to start at 1.15pm that day.

39.4 On 17th January 2024 he message the group asking if anyone could cover his shift that day.

39.5 At 7.42pm on 30th January 2024 the claimant messaged the group asking if anyone could cover his shift the next day.

39.6 Due to tube line closures, at 1.08pm on 3rd February 2024, the claimant messaged Ms Boriau explaining he may be late for his 1.40pm, then messaged shortly afterwards to say he’d have to miss that tour.

[40]As stated, these are a selection of the shifts which were missed or substituted for different reasons, or sometimes without a reason being given. The parties agreed that no real sanctions were imposed, even where this happened at short notice.

[41]During cross examination Mr Sahabi accepted Mr Boriau was an employee, that he had tried to arrange a substitute for one of his shifts, adding it was because Mr Boriau was unwell.

[42]When e-mailing his invoice to the respondent on 1st February 2024, the claimant also stated: “I would like to discuss the possibility of having a 0 hours contract with the company so that they could do my taxes for me starting from march (just to give the company time to process it) It will also help me to ease my anxiety”

[43]Ms Ibrahim put to him that he asked for a contract because he was aware at that point he was not a worker. The claimant responded that he asked for the contract because he wanted the respondent to deal with his tax.

[44]On 13th February 2024, the respondent e-mailed the claimant explaining he would not be offered a zero-hours contract. Early conciliation started the following day; it ended on 22nd March 2024, being the same day the claim form was presented. The Claimant’s Submissions

[45]In his skeleton argument the claimant relied on paragraphs 38 and 41 of Uber BV v Aslam

[2021] UKSC 5

, quoting the latter which reads: Limb (b) of the statutory definition of a “worker’s contract” has three elements:(1) a contract whereby an individual undertakes to perform work or services for the other party;

(2) an undertaking to do the work or perform the services personally; and

(3) a requirement that the other party to the contract is not a client or customer of any profession or business undertaking carried on by the individual.

[46]The claimant also quoted paragraph 31 of Bates van Winkelhof v. Clyde & Co LLP

[2014] UKSC 32

, and cited Sejpal v. Rodericks Dental Ltd

[2022] EAT 91

and Autoclenz Ltd v Belcher [2011] in his skeleton argument.

[47]The claimant addressed substitutions by reiterating that Mr Boriau, as an employee, was not precluded from seeking a substitute. In his oral evidence he said that he only changed shifts with individuals within the company. Although he went further during closing submissions and argued substitutions from outside the company were prohibited.

[48]In support of his contention that he was an employee of the respondent, the claimant argued he had no control over what he did as shown by the detailed job description he was given. He was provided with paid training, which he argued is inconsistent with being self-employed. The respondent decided on the rate of payment, he was integrated in to the respondent’s workplace, and the respondent was named as his employer on the DBS certificate. The claimant also relied on HMRC’s online tool which identified him position as an employee. However, the information he entered online stated he never sent a substitute to cover for him.

[49]The claimant argued an employee’s contract may be oral, and submitted that the three elements of worker status set out in Uber v Aslam were present in his arrangement with the respondent. Namely that by his contract with the respondent he undertook to perform work or services, he undertook to do this personally, and the respondent was not his client or customer. The Respondent’s Submissions

[50]On behalf of the respondent, Ms Ibrahim argued the starting point is the statutory test, at section 83(2) of the 2010 Act, which she adds, is underlined in the case law authorities. The authorities clarify that there are various tools which may assist in determining whether an individual has worker status. In this case, she submits the relevant ones are:50.1 Whether the claimant was obliged to provide services personally;

50.2 Whether there was a mutuality of obligation between the parties; and

50.3 The degree to which the claimant was expressly/impliedly under the respondent’s control.

[51]Ms Ibrahim relied on paragraph 69 of R (on the application of Independent Workers Union of Great Britian) v Central Arbitration Committee [2023 UKSC 43, and paragraph 84 of Pimlico Plumbers Ltd v Smith

[2017] ICR 657

, where it was held that a virtually unfettered power of substitution was inconsistent with an employment relationship, which required an individual to provide personal service. She submitted if there is a conditional right of substitution, the nature and degree of the fetter on a right of substitution is relevant.

[52]Ms Ibrahim also argued that on certain licensed tours the respondent is necessarily more prescriptive about how the tour is conducted. But aside from that, entertainers are provided with training and a script but are given latitude to adapt the tour to suit their artistic style. She emphasised the degree of flexibility afforded to entertainers to arrange substitutions at short notice, which the claimant made use of.

[53]Ms Ibrahim continued that the flexibility the claimant had was distinguishable from the degree of control Uber exercised over its workers in Uber v Aslam. In that case fares were fixed by Uber, drivers were required to accept Uber’s standard contract, their choice was constrained when they were logged into the app, including as regards the route taken. She cited paragraph 101 of the Uber decision which referred to the various aspects of the drivers’ work which was tightly regulated and controlled by Uber. The relationship between the driver and passenger was restricted, and drivers were prevented from doing future work for passengers, with drivers being sanctioned by being logged off the app if they did not meet Uber’s standards.

[54]Further, as regards substitution, Ms Ibrahim dealt with the claimant’s point that only substitutions within the WhatsApp group were permitted, arguing the claimant had not put that to Mr Sahabi in cross examination. While accepting that all substitutions were between those in the WhatsApp group, she argued that was a convenient way of finding someone with the aptitude and willingness to do this work at short notice, but there was no evidence that a substitute from outside the group was prohibited. There was only the claimant’s assertion made during closing submissions which I do not accept for the following reasons. Firstly, because, as Ms Ibrahim said, that was a convenient way of finding a willing and able substitute at short notice. Secondly, the fact that substitutions were only arranged within the group does not mean substitutions outside the group were prohibited. During closing submissions, the claimant asserted for the first time that they were. That assertion was an elaboration on his oral evidence, Mr Sahabi was not cross examined on it, therefore I attach little weight to this assertion. I find that the claimant was not prohibited from arranging a substitution from outside the company.

[55]Yet further, Ms Ibrahim argued, entertainers were only allocated shifts when they were available, which they could accept or reject. They were not arbitrarily allocated shifts, for instance at times when they had indicated they were unavailable.

[56]As to the claimant’s contention that he was integrated into the respondent company, she relies on Hospital Medical Group Limited v Westwood [2013] ICR to argue this is not a determinative factor. In any event, she adds the claimant’s online profile shows that he advertised generally his services as an actor and a performer, he was looking to do more film work, at times he worked for other tours, and so was not an integral part of the respondent company.

[57]Ms Ibrahim submitted many working in the role are aspiring actors who look for flexibility in their work so that they can attend auditions when needed, and take up any acting roles offered to them. She continues, the claimant benefitted from this flexibility because there were a number of occasions when he did not attend for an allocated shift, mostly for non-health related reasons.

The Law

[58]As stated, this case is regarding the definition of employment under section 83(2) of the Equality Act 2010, which uses different wording to the definition of worker at section 230 of the Employment Rights Act 1996.

[59]The definition at section 83(2) reads: “Employment” means (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;

[60]Nonetheless, the case law dealing with the definition in the 1996 Act is still relevant guidance, because the different wording has no material effect of the meaning of either definition (see Sejpal v Rodericks Dental Ltd [2022] I.C.R. 1339). This seems to be accepted by the parties who both cited in support of their respective positions, Uber v Aslam which is regarding the definition of worker status under the 1996 Act.

[61]I remind myself that the focus is on the actual arrangement between the parties, and whether or not that arrangement is one to which section 83(2) of the 2010 Act applies. In order to meet that test, all three elements of the Uber test need to be satisfied. As to the statutory definition, a feature of this case is on whether the claimant was obliged to provide services to the respondent personally or whether he had the power of substitution. Uber v Aslam states:

[68]The judgment of this court in the Autoclenz case made it clear that whether a contract is a “worker’s contract” within the meaning of the legislation designed to protect employees and other “workers” is not to be determined by applying ordinary principles of contract law …

[69]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 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.

[70]The modern approach to statutory interpretation is to have regard to the purpose of a particular provision and to interpret its language, so far as possible, in the way which best gives effect to that purpose. In UBS AG v Revenue and Customs Comrs

[2016] UKSC 13

;

[2016] 1 WLR 1005

, paras 61-68 , Lord Reed (with whom the other Justices of the Supreme Court agreed) explained how this approach requires the facts to be analysed in the light of the statutory provision being applied so that if, for example, a fact is of no relevance to the application of the statute construed in the light of its purpose, it can be disregarded. Lord Reed cited the pithy statement of Ribeiro PJ in Collector of Stamp Revenue v Arrowtown Assets Ltd (2003) 6 ITLR 454 , para 35: “The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically.” The purpose of protecting workers

[71]The general purpose of the employment legislation invoked by the claimants in the Autoclenz case, and by the claimants in the present case, is not in doubt. It is to protect vulnerable workers from being paid too little for the work they do, required to work excessive hours or subjected to other forms of unfair treatment (such as being victimised for whistleblowing)63. In Sejpal v Rodericks Dental Ltd [2022] I.C.R. 1339 the EAT advised on the approach to implement the above guidance, it stated at paragraph 7: The entitlement to significant employment protection rights depends on a person being a worker. Deciding whether a person is a worker should not be difficult. Worker status has been the subject of a great deal of appellate consideration in recent years. Worker status has come to be seen as contentious and difficult. But the dust is beginning to settle. Determining worker status is not very difficult in the majority of cases, provided a structured approach is adopted, and robust common sense applied. The starting point, and constant focus, must be the words of the statutes. 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. Conclusions

64. In light of the above, deciding this preliminary issue requires an analysis of the particular facts in this case to identify the true nature of the arrangement between the parties in order to determine whether their arrangement meets the statutory definition.

65. In my judgment, the power of substitution available to the claimant, and the corresponding flexibility this allowed him, combined with the limited restrictions or control placed on him fulfilling the role are relevant in this determination. There were numerous examples of him swapping his tours for various reasons, sometimes without giving a reason, and sometimes at short notice. That is more consistent with someone who is self-employed rather than a worker, because it indicates there was no requirement for the claimant to carry out the work personally. Therefore, the degree of substitution indicates the claimant personally carrying out the tours allocated to him was not a “dominant feature” of the arrangement.

66. I do not consider the power of substitution was undermined by the fact that all substitutions were arranged within the WhatsApp group. I have already found that the claimant was not prohibited from finding a substitute from outside the company. However, even if he was, I consider the degree of the fetter is consistent with the claimant being self-employed. It was appropriate that the respondent ensures a substitute was competent to carry out the role even where the claimant is engaged on a self-employed basis (see Ready Mixed Concrete (South East) Limited v Minister of Pensions

[1968] 2 QB 497

67. I do not consider Mr Boriau, as an employee, trying to arrange a substitute for one of his tours particularly supports the claimant’s position. Mr Sahabi’s evidence was that Mr Boriau tried to arrange this because he was unwell. That is different to the claimant’s situation where he was unable to attend for various reasons, and sometimes gave no reason at all

68. The claimant's profile does not mention his work with the respondent or for any other companies where he has carried out a similar entertainer’s role. His profile states that he is an actor and performer, it lists his acting credits, and states he is keen to increase his film work. That gives the impression that he prioritises acting and performing over any work as an entertainer, which is supported by his description of this as “side work”, being work an actor might do in-between short term acting jobs. Furthermore, advertising his services to the public, is more consistent with him being self-employed

69. The claimant’s other work, and his seeming to prioritise acting roles, also supports the respondent’s case that the claimant was not integrated into the respondent company. His own message to BreakAway also indicates that the arrangement was closer to seasonal or casual, rather than a worker integrated into the company (see paragraph 33 above). He is effectively saying he would like to work on bus tours during the winter, bike tours during the summer, and go wherever the work is in between. Finally, as regards integration, I do not consider him being added to the respondent’s WhatsApp group amounts to integration. Mr Sahabi’s unchallenged evidence is that all those who were entertainers only were self-employed. Therefore, as the other entertainers in the WhatsApp group were self-employed, membership alone of the group would not make the claimant a worker.

70. The degree of flexibility the claimant had was more consistent with someone who is self-employed. It was common ground that he was not required to do a minimum number of tours, and the tours allocated to him were only at times when he said he was available, he was not required to make himself available for a tour. And even if he had indicated he was available, he was free to decline a tour if one was offered. Except where licensing conditions prevented it, he was free to use or adapt the respondent’s script. 71. Another factor, although perhaps not the most significant one, is that the claimant provides different dates for when he says he became a worker. Firstly, he said that he was a worker by virtue of a verbal agreement with Mr Boriau entered into on 30th May 2023 (see paragraphs 23 to 24 above). In July 2023 he states (see paragraphs 26 to 28 above) that he planned to work full time in order “… to establish a form of employer and employee relationship.” When he was later added to the respondent’s WhatsApp group on 21st November 2023 he said (see paragraph 36 above): “At this point, I considered myself an employee who had to manage my own taxes.” Yet on 1st February 2024 the claimant requested a zero hours contract, which suggests at that stage he did not consider he was a worker. The lack of clarity as to when the claimant says he became a worker, tends to undermine his contention that there was such an arrangement between him and the respondent.

Conclusions

[72]His evidence also suggests that he has conflated working full time with being a worker. For instance, as stated at paragraph 28 above, in July 2023 his “… plan was to try to work … full-time to establish a form of employer and employee relationship.” Furthermore, during his oral evidence he relied on an exchange with BreakAway stating he intended to work full time for the respondent from October 2023 to January 2024, as evidence of his worker status. He considered the fact that he invoiced for full time hours during this period supported his argument. However, it is the nature of the arrangement and not the number of hours worked that is relevant to whether an individual is or is not a worker.

[73]The other matters the claimant relies on to support his position are not determinative. He relies on the fact that the respondent provided him with a job description, which sets out what is required of him in the role. However, that is not uncommon in either a worker or self-employed context. That the respondent fixed the tour rate is also not determinative either way: a worker may negotiate for their preferred rate of pay, or accept a rate that’s fixed by the other party. To the extent that the payment rate is evidence of the degree of control the respondent had, I consider the other considerable flexibility afforded to entertainers outweighs the respondent’s control over payment rates. The DAB certificate describing the respondent as the claimant’s employer does not assist because it is a standard certificate produced by a third party, it is not intended to, and would not affect, the actual arrangement between the parties. Finally, the HMRC tool does not assist because, as Ms Ibrahim pointed out, the answer it gave is influenced by the information provided, and the claimant incorrectly input that he had no sent a substitute in his place.

[74]Although, as stated, the analysis is fact sensitive, taking a step back, and comparing the arrangement between the parties in this case to the reported cases relied on, supports this conclusion. For instance in Pimlico Plumbers where individuals wore the company uniform, carried company ID, used a company phone, hired a company van, expected to work 5 days and 40 hours per week.

[75]In Uber, the rate of pay was fixed by Uber which collected the payment, as is the case here. But in most other respects, Uber exercised a degree of control that is absent in this case. For instance, drivers were required to accept Uber’s terms and conditions. Drivers could decide when they logged on to the Uber app, but once they did so, the driver’s freedom about whether to accept a job was constrained by Uber. The driver’s cancellation rate was monitored by Uber, and where this fell below a particular level, an escalating scale of sanctions could be imposed. The drivers are expected to follow the route the journeys prescribed by Uber, and restricts the discussion between drivers and passengers.

[76]For the above reasons, in my judgment, the claimant is not a worker. Accordingly, his claim is dismissed.

Conclusions

[1]The claimant’s request for reconsideration is refused, and the Tribunal’s judgment in respect of the preliminary issue is confirmed.

[2]There is no reasonable prospect of the original decision being varied or revoked for the reasons set out below.

BACKGROUND

[3]The respondent is a bakery and bus tour operating company. Between 21st July 2023 and 3rd March 2024, the claimant was engaged as an entertainer on the respondent’s bus tours, although the last shift he completed seems to have been around 28th January 2024.

[4]Early conciliation started on 14th February 2024 and ended on 22nd March 2024. The claim form was presented to the Tribunal on 22nd March 2024.

[5]In a letter dated 28th May 2024, Employment Judge Fredericks-Bowyer directed that the claim be listed for an public preliminary hearing to determine the claimant’s employment status.

[6]The preliminary hearing took place on 12th November 2024, at the end of which the Tribunal orally announced its decision. The Tribunal determined that, at the relevant time, the claimant was not an employee and/or worker of the respondent as defined by section 83(2) of the Equality Act 2010. Accordingly, the Tribunal dismissed the substantive claim because it did not have jurisdiction to determine it.

[7]By an e-mail sent to the Tribunal on 13th November 2024 the claimant requested the written reasons for the Tribunal’s judgment. Written reasons dated 13th December 2024 were sent to the parties.

[8]On 20th December 2024, the claimant e-mailed the Tribunal with a request for reconsideration, which was forwarded to EJ Tueje on 23rd December 2024.

[9]The request for reconsideration is contained in a 36-page document, which was accompanied by the following PDF documents (adopting the claimant’s descriptions of the PDF documents):9.1 PPH Bundle (97 pages);

9.2 Skeleton argument (8 pages); and

9.3 Updated Evidence Bundle (106 pages). APPLICATIONS FOR RECONSIDERATION

[10]By rules 68 and 69 of the Employment Tribunals Rules of Procedure 2024 (being rules 70 and 71 of the Employment Tribunals Rules of Procedure 2013), a Tribunal may reconsider any judgment on the application of a party, where it is necessary in the interests of justice to do so. Under rule 70(2) of the 2024 Rules (or 72(1) of the 2013 Rules), an Employment Judge shall consider any such request, and: “… If the judge 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.”

[11]As regards reconsideration, there is no material change between the Employment Tribunals Rules of Procedure 2013 and 2024.

[12]The claimant’s request for reconsideration is a comprehensive 36-page document which raises 4 grounds for reconsideration, and makes additional arguments. Therefore, in the interests of proportionality, not each and every individual point raised by the claimant in his document has been addressed below.

[13]The grounds for requesting reconsideration are as follows:13.1 New evidence that could not have been found or allowed in time before and during the hearing is now available;

13.2 A key witness was not present at the hearing (Mr. JP Boraiu);

13.3 The respondent did not follow a court order and attempted to influence the tribunal, which caused bias against me; and

13.4 Some of the findings made by EJ Tueje were without any evidence from the respondent and/or did not prove either self-employment or worker status. POINTS RAISED IN ADDITION TO THE ABOVE GROUNDS

[14]To broadly follow the order in which the claimant has set out his request for reconsideration, the Tribunal will begin by dealing with the additional points raised in the request for reconsideration. Interests of Justice

[15]At paragraphs 5 and 6 of the request for reconsideration, the claimant complains that the respondent lied to the Tribunal by alleging the claimant is a vexatious litigant, and that this caused the Tribunal to be prejudiced against him.

[16]The phrase “vexatious litigant” was not used during the preliminary hearing. When cross-examining the claimant during the hearing, Ms. Ibrahim, counsel for the respondent, referred him to page 19 of his Evidence Bundle, which had messages exchanged between the parties. These included a message from the claimant stating he couldn’t do a shift for the respondent because the stress of a separate claim had made him unwell.

[17]In his witness statement, Mr. Sahabi alleges the claimant is a vexatious litigant. However, the Tribunal did not take this into account when reaching its decision because it is irrelevant to the preliminary issue. Nor did the Tribunal attach any weight to the allegation because it was evident the claimant is not on the list of vexatious litigants because he did not require permission to bring his claim. During the preliminary hearing the only reference to him bringing a previous claim was when Ms Ibrahim cross examined him on paragraph 19 of his statement. Therefore, Mr. Sahabi’s allegation played no part in the Tribunal’s decision, and for that reason, it is not referred to at all in its decision. Preliminary Matters

[18]At paragraphs 8 to 16 of the request for reconsideration, the claimant raises the following points under the heading “Preliminary matters. General Anxiety Disorder – Mental Health Disability”:18.1 He refers to his disability and the effects this has on his ability to, amongst other things, concentrate, read, absorb, and understand.

18.2 Receiving the respondent’s skeleton argument on the day before the preliminary hearing meant he was unable to read and absorb it.

18.3 He protests against the respondent being allowed to rely on that skeleton

18.4 He says there were three 15 minute breaks and a one-hour lunch break during the hearing, which he says was insufficient time for him to process information.

18.5 It was unreasonable to ask the claimant to read the respondent’s skeleton argument during the lunch break.

18.6 He was not able to challenge the contents of the respondent’s skeleton

18.7 The skeleton argument contained arguments that were not included in the respondent’s witness statement, and so they should not have been allowed to rely on it.

18.8 He says the hearing should have been adjourned, or the respondent should not have been allowed to rely on the arguments contained in its skeleton argument.

[19]Each of the above points is addressed at paragraphs 19 to 30 below. The claimant’s disability

[20]The Tribunal had regard to the claimant’s disability, the effects it had on him, enquired what reasonable adjustments would be required, and accommodated those adjustments, including by having periodic breaks during the hearing. Timing of the respondent’s skeleton

[21]The Tribunal’s letter dated 28th May 2024 notifying the parties about the preliminary hearing, did not give any directions for preparation for the preliminary hearing. On 11th September 2024, the claimant e-mailed the Tribunal seeking directions in respect of the parties exchanging witness statements for the preliminary hearing. Consequently, in a letter dated 2nd October 2024, Employment Judge Sudra directed the parties must exchange witness statements by 5th November 2024. The Tribunal did not give any directions for the parties to prepare skeleton arguments, so, it was the parties’ choice whether they prepared one. The claimant sent a skeleton argument, it is understood he sent this around 2 weeks before the preliminary hearing. The respondent’s skeleton argument was e-mailed on 11th November 2024, the day before the preliminary hearing.

[22]Although the parties were not required to prepare a skeleton argument, both did so. But the claimant objected to the timing of the respondent’s skeleton argument. When dealing with his objections at the preliminary hearing, the Tribunal explained that a skeleton argument can be of assistance to the opposing party, because it provides advance notice of a party’s arguments. The claimant still objected to the skeleton argument being relied on because he said he had not had sufficient time to read and absorb it. Therefore, the Tribunal informed Ms Ibrahim that she was not permitted to rely on the skeleton argument, and any legal arguments were to be oral submissions only.

[23]Accordingly, the Tribunal did all that was within its power to address the claimant’s inability to read and absorb the respondent’s skeleton argument. Unfairness resulting from the respondent relying on its skeleton argument

[24]As stated at paragraphs 20 to 21 above, in light of the claimant’s objections, the respondent was not allowed to rely on its skeleton argument at the preliminary hearing. Inadequacy of breaks

[25]The hearing was listed at 10:00 am, at which time some housekeeping and applications were dealt with (for instance, the issue of the respondent’s skeleton argument). The Tribunal then took a break before the preliminary hearing began at approximately 11:20 am. In addition to that early break, there were, as the claimant states, three 15-minute breaks plus the lunch hour-long break. This meant the Tribunal took a break approximately every hour. That was not a reasonable adjustment that the claimant requested; the Tribunal took the initiative to have periodic breaks as a reasonable adjustment in light of the claimant’s disability. When the Tribunal explained in the morning its intention to do so, the claimant did not raise any concerns that the breaks would be insufficient. Requesting the claimant read the respondent’s skeleton during the lunch break

[26]The Tribunal did not require or request the claimant to read the respondent’s skeleton argument during the lunch break. The Tribunal adjourned for lunch after hearing evidence and informed the parties that it would hear closing oral submissions after lunch. The Tribunal mentioned to the claimant that the respondent was likely to make submissions based on the points raised in its skeleton argument, so he may wish to consider it during the lunch break. That was expressly stated to be entirely voluntary. It was therefore for him to decide whether he wanted to do so. The claimant was unable to challenge the respondent’s skeleton argument

[27]Because the respondent was not allowed to rely on its skeleton argument, the claimant did not need to challenge the contents of the respondent’s skeleton The skeleton contained arguments not in the respondent’s witness statement

[28]It is customary for a skeleton argument to contain legal arguments/submissions, whereas a witness statement provides a party’s factual account. This means that typically the contents of each are not identical. But in any event, and as stated, the respondent was not allowed to rely on its skeleton argument. Failing to adjourn and/or not prohibiting the respondent from relying on the arguments in its skeleton argument The claimant did not request an adjournment.

[30]It would have been unjust to prevent the respondent from making closing oral submissions. When dealing with the claimant’s objections to the respondent’s skeleton argument at the start of the preliminary hearing, the Tribunal explained to the claimant that the skeleton argument was likely to contain the points that the respondent would be raising in oral closing submissions. Despite that explanation, the claimant raised no objection to the respondent making oral submissions reflecting the contents of its skeleton argument. No objection was made when the Tribunal informed Ms. Ibrahim she would be allowed to make oral submissions only, nor was any objection made during the hearing when Ms. Ibrahim made her oral submissions.

[31]It was also clear to the claimant that the respondent would be making legal arguments because the respondent had provided a bundle of authorities. When the Tribunal informed the parties the respondent was not allowed to rely on its skeleton argument, Ms Ibrahim sought clarification that she could nonetheless rely on the bundle of authorities when making closing submissions. The Tribunal confirmed that she could because the claimant’s objections were in respect of the skeleton argument only. It was therefore clear that the Tribunal would be hearing legal arguments, and the claimant did not object to the respondent making oral submissions, nor did he ask for an adjournment. The Judgment

[32]At paragraphs 23 to 42 of the request for reconsideration, the claimant raises points under the heading “The Judgment.” Most of these points relate to matters dealt with at paragraphs 64 to 76 of the written reasons, but which the claimant disputes. Accordingly, it’s not appropriate to grant a request for reconsideration based on matters that have already been considered and determined.

[33]Nonetheless, some points raised by the claimant are considered below, although reference should also be made to paragraph 12 above dealing with proportionality.

[34]Firstly, at paragraph 27 of the request for reconsideration, the claimant writes: “… I felt that EJ Tueje was biased against me, through no fault of my own…”

[35]The claimant does not provide any reasons at paragraph 27 of the request for reconsideration as to why EJ Tueje was said to be biased against him, nor does he state in what way the alleged bias was displayed. This makes it difficult to address this point except in general terms.

[36]If the alleged bias is said to be because Mr. Sahabi’s witness statement claimed the claimant is a vexatious litigant, that is dealt with at paragraphs 15 to 17 above.

[37]EJ Tueje was not biased, and there was no bias in the way the proceedings were conducted, nor in respect of the decision reached, which was based on the evidence and the arguments before the Tribunal as set out in the Tribunal’s written reasons.

[38]Also at paragraph 28 of the request for reconsideration, the claimant contends that he should have been given 7 days to challenge the points raised by Ms Ibrahim because she relied on arguments in her skeleton argument, which was filed late. As stated, there was no direction for the parties to provide skeleton arguments, so the respondent’s skeleton argument was not filed after a time for doing so had expired. In any event, Ms Ibrahim was not allowed to rely on her skeleton argument. The claimant did not request an adjournment in order to have time to consider the respondent’s closing submissions. Furthermore, the preliminary hearing was the opportunity for the parties to argue their case, including dealing with the other side’s case.

[39]At paragraph 34 of the request for reconsideration, the claimant deals with the arguments he made after the Tribunal announced the judgment. The claimant asked whether he could raise points, the Tribunal allowed him to do so, and the Tribunal did not limit the number of points he made. After he made those points, the Tribunal addressed them.

[40]As to the point the claimant raises at paragraph 35 of the request for reconsideration, the claimant asserts he was only allowed to swap shifts with entertainers engaged by the respondent. That point goes to only part of the Tribunal’s reasons. Paragraph 66 of the Tribunal’s determination states that even if the power of substitution was limited to a WhatsApp group containing only those who were engaged by the respondent as entertainers, having regard to the decision in Ready Mixed Concrete (South East) Limited v Minister of Pensions

[1968] 2 QB 497

, that does not undermine the conclusion that the claimant was self-employed.

[41]Paragraphs 36 to 38 of the request for reconsideration raise arguments that were not made at the preliminary hearing, so it is therefore not appropriate to deal with those arguments as part of the claimant’s request for reconsideration.

[42]Paragraphs 36 to 38 of the request for reconsideration also seek to rely on new evidence; the new evidence the claimant would like to rely on is addressed at paragraphs 50 to 52, and 58 to 78 below. Other noteworthy matters

[43]As a broad response to paragraphs 43 to 45 of the request for reconsideration, the claimant is seeking to re-argues points previously raised, argues new points, and relies on evidence not provided to the Tribunal for the preliminary hearing. The Tribunal reached its decision based on the arguments made and the written and oral evidence provided at the preliminary hearing. Its decision on the evidence and arguments, and the reasons for its decision are at paragraphs 64 to 74 of the Tribunal’s determination.

[44]To the extent that the claimant seeks to rely on new evidence, the new evidence is addressed at paragraphs 49 to 51, and 59 to 78 below.

[45]At paragraph 44(vi) of the request for reconsideration, the claimant queries the source or basis of the Tribunal’s finding at paragraph 71 of the written reasons which reads as follows: “When he was later added to the respondent’s WhatsApp group on 21st November 2023 he said (see paragraph 36 above): “At this point, I considered myself an employee who had to manage my own taxes.”

[46]The source is a paragraph 8 of the claimant’s witness statement dated 3rd November 2024 which reads: “On 21st November 2023, Mr. J.P. Boriau added me to an app called When I Work. It is an app that employers use to organize work schedules for their employees. At this point, I considered myself an employee who had to manage my own taxes.”

[47]The Tribunal accepts it misread paragraph 8 of the claimant’s witness statement. The claimant’s statement does not refer to the claimaint being added to the respondent’s WhatsApp group, but instead refers to the him being added to the respondent’s “When I Work” portal.

[48]Accordingly, the Tribunal will issue a corrected version of the judgment with written reasons. The Tribunal does not consider this error is sufficient to meet the sift threshold at rule 70(2) for the reasons given at paragraph109.1 and

109.2 below. THE REQUEST FOR RECONSIDERATION

[49]Paragraph 47 onwards in the request for reconsideration deals with the claimant’s grounds for requesting a reconsideration. Summary Response to the Grounds for Reconsideration

[50]Ground for reconsideration: New evidence that could not have been found or allowed in time before and during the hearing is now available.

[51]Response: It is improbable that the new evidence the claimant wishes to rely on to support his contention that entertainers were penalised if they missed a shift would have had an important influence on the outcome on the case. That is because there were other reasons why the Tribunal concluded he was not a worker. In particular, that the flexibility he was afforded to swap shifts was inconsistent with him being a worker.

[52]The claimant also argues the reason he did not adduce the new evidence at the preliminary hearing to show he did not have an unfettered right of substitution, was because he was unaware the respondent would argue the claimant had an unfettered right of substitution. The Tribunal notes that amongst the authorities relied on by the claimant in his skeleton argument is Uber BV v Aslam [2021]. The three-fold test set out in that case is cited by the claimant in his skeleton argument, and the test includes whether an individual must “do the work or perform the services personally”. In other words, whether or not the individual has a right of substitution. Therefore, the claimant’s case was that he was required to perform the work personally, so he should have provided any relevant supporting evidence he wished to rely on at the preliminary hearing. It is not appropriate for him to now rely on evidence to support arguments that were part of his case. To allow the claimant to rely on this evidence is contrary to the finality of the Tribunal’s judgments, and finality is an important aspect of the interests of justice. Furthermore, the new evidence the claimant seeks to rely on would not have had an important influence on the case, as it does not support his contention that he was prohibited from swapping shifts with individuals outside the company.

[53]Ground for reconsideration: A key witness was not present at the hearing (Mr. JP Boraiu).

[54]Response: It was for the respondent to decide on which witnesses to call, if any. In the event, it decided to call Mr. Sahabi, its Operations Manager. Mr. Sahabi had prepared a witness statement in accordance with Employment Judge Sudra’s directions, the claimant had sufficient time to consider it, and an opportunity to cross-examine Mr. Sahabi. It is therefore not necessary in the interests of justice to reconsider the judgment based on this ground.

[55]Ground for reconsideration: The respondent did not follow a court order and attempted to influence the tribunal, which caused bias against me.

[56]Response: The Tribunal’s response is at paragraphs 79 to 81 below. For the reasons stated at paragraphs 79 to 81, the Tribunal considers there is insufficient merit in this ground to meet the sift threshold.

[57]Ground for reconsideration: Some of the findings made by EJ Tueje were without any evidence from the respondent and/or did not prove either selfemployment or worker status.

[58]Response: By this ground, the claimant seeks to challenge the Tribunal’s findings. The arguments supporting this ground are a combination of re-arguing points previously considered by the Tribunal, relying on evidence that was available at the time of the preliminary hearing, or raising points that could have been raised at the preliminary hearing but were not. To reconsider the judgment on the basis of points already considered, or points not previously raised is contrary to the finality of the Tribunal’s judgments, and is therefore also contrary to the interests of justice. New evidence that could not have been found or allowed in time before and during the hearing is now available.

[59]This ground is dealt with at paragraphs 47 to 67 of the request for Legal Principles

[60]Ladd v Marshall

[1954] 1 WLR 1489

sets out the principles that apply where a party wishes to adduce new evidence. Those principles apply in the Employment Tribunal, as confirmed in cases such as Ministry of Justice v Burton

[2016] ICR 1128

, and Outasight VB Ltd v Brown [2015] ICR D11.

[61]The principles established by Ladd v Marshall are as follows (see page 1491): “To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

[62]It is evident that Denning LJ held that all three conditions must be fulfilled. The claimant’s reasons for relying on new evidence

[63]At paragraphs 52 and 53 of the request for reconsideration, the claimant states the reason he did not adduce at the preliminary hearing the new evidence that he now seeks to rely on, was because the preliminary hearing dealt with matters that were not raised in Mr. Sahabi’s witness statement. In particular, at paragraph 52 he specifies the following 3 points that were not addressed in Mr. Sahabi’s witness statement:63.1 Whether there was a penalty for missing a shift.

63.2 Whether the claimant had a right to arrange a substitute for his shifts with someone outside the company.

63.3 Whether he could get someone outside the WhatsApp group to cover his shifts.

[64]These points are addressed below.

[65]As to paragraph 63.1 above, whether there were penalties for missing a shift, is dealt with at paragraph 40 of the written reasons. The Tribunal records the parties agreed that the respondent imposed no real sanctions when entertainers swapped or missed a shift. The claimant now states the respondent misled the Tribunal by claiming penalties were not imposed. He also says that his Updated Evidence Bundle shows penalties were imposed. It is not appropriate to reconsider the judgment based on new evidence relied on to address a point previously agreed between the parties, which the claimant now disputes. See also paragraphs 50 and 51 above.

[66]Turning to paragraphs 63.2 and 63.3 above. According to paragraph 13 of the request for reconsideration, the respondent sent his skeleton argument to the respondent on around 3rd November 2024. In the claimant’s skeleton argument, amongst other cases, he relied on Uber BV v Aslam [2021], and cited the three-fold criteria for fulfilling the definition of a limb (b) worker. Therefore, the claimant was aware of the relevance of substitution.

[67]As indicated by paragraph 69 of the written reasons, the WhatsApp group consisted of individuals who carried out the entertainer’s role on the respondent’s bus tours. Therefore, no one in the group was “outside the company.” The claimant also makes this point at paragraph 79(i) of the request for reconsideration. It means that the points referred to at paragraphs 63.2 and 63.3 above are the same point. Namely, if substitutes were, as the claimant maintains, limited to members of the WhatsApp group, and members of the WhatsApp group consisted only of those carrying out the entertainer’s role, these individuals are one and the same.

[68]As a more general response about the respondent’s legal submissions regarding matters that are not in Mr. Sahabi’s witness statement. It is primarily a legal question as to whether an individual is or is not a worker, although it will be necessary to apply the facts of the case to assess whether the legal test has been met. Mr. Sahabi’s witness statement was evidence of fact; his witness statement did not include submissions on the law. However, as stated at paragraph 38 of the written reasons, at paragraphs 17 to 17.25 of Mr. Sahabi’s witness statement, he set out various instances when the claimant either missed or swapped a shift. Mr. Sahabi’s evidence regarding the claimant swapping shifts is relevant to whether the arrangement between the claimant and respondent met the legal test set out in Uber BV v Aslam [2021].

[69]The issue of substitution is dealt with at paragraphs 65 to 67 of the written reasons. In particular, at paragraph 66 of the written reasons, the Tribunal found the claimant was not prohibited from swapping his shifts with someone from outside the company. However, in the alternative, the Tribunal considered if there was such a prohibition, that did not undermine its finding that the claimant was self-employed. This addresses the claimant’s point at paragraph 54 of the request for reconsideration.

[70]At paragraph 55 of the request for reconsideration, the claimant states that Ms. Ibrahim did not put to him in cross-examination that he had an unfettered right of substitution. Ms. Ibrahim’s cross-examination of the claimant on this point is dealt with at paragraph 38 of the written reasons, which records her putting the respondent’s factual case to him about the degree of freedom he had to swap shifts. In any event, the Tribunal did not make a finding that the claimant had an unfettered right of substitution. The Tribunal found the degree of flexibility the claimant had to swap his shifts was more consistent with him being selfemployed.

[71]As to paragraph 56 of the request for reconsideration, after Ms. Ibrahim’s closing submissions, the claimant was offered an opportunity to make further submissions by way of a reply. The respondent was not prevented from making legal submissions, but the Tribunal did remind him that he was not permitted to give evidence, and the Tribunal stopped when he sought to introduce evidence during his reply.

[72]As to paragraph 57 of the request for reconsideration, the Tribunal did not invite or receive any further evidence after judgment was announced. Instead, the Tribunal checked with both parties whether there was anything further the Tribunal should deal with, or that they wished to ask; no limit was placed on how many matters they could raise. The claimant took this opportunity to reiterate two points: firstly, that he was only allowed to swap shifts with those in the WhatsApp group, and wanted to adduce new evidence to support that point. The Tribunal explained it would not be appropriate to introduce new evidence after the judgment had been announced. Secondly, the claimant reiterated that the fact that he was asking the respondent for a contract was evidence that he did not have one.

[73]At paragraphs 58 and 59 of the request for reconsideration, the claimant states that the Tribunal did not allow him to adduce further evidence, and the reason he did not have all the new evidence at the preliminary hearing was because of his mental health disability. The Tribunal accommodated the reasonable adjustment the claimant requested at the start of the hearing, namely, that he be given time to absorb and understand information. Furthermore, of the Tribunal’s own volition, there were periodic breaks during the hearing as an additional reasonable adjustment. Therefore, the claimant’s disability was taken into account by the Tribunal, although he was not allowed to introduce new evidence after the Tribunal announced its judgment.

[74]As stated at paragraph 52 above, the claimant knew the issue of substitution was relevant.

[75]While the Tribunal is mindful of making reasonable adjustments, in all the circumstances, introducing new evidence after its decision has been announced, in the Tribunal’s judgment, goes beyond a reasonable adjustment. It would be disproportionate having regard to the interests of justice, the procedure rules, the need to have finality on proceedings, costs, and the use of the Tribunal’s resources.

[76]Paragraphs 63 to 67 of the request for reconsideration reiterate the points previously made and addressed above, for instance:76.1 The claimant disputes he had an unfettered right to arrange a substitution, which is dealt with at paragraphs 51, 69, 82 and 83 herein.

76.2 That entertainers were reprimanded for missing shifts, which is dealt with at paragraphs 50 and 64 above.

[77]At paragraphs 65(v) to 67 of the request for reconsideration, the claimant raises points to support an argument that the respondent gave him a zero-hours contract.

[78]However, the claimant’s evidence at the preliminary hearing shows he was seeking a zero-hours contract. This is referred to at paragraphs 26 to 28 and 42 of the written reasons. The Tribunal’s findings on this point are that it was common ground between the parties that the claimant did not have a zerohours contract, and the written reasons note that as recently as 1st February 2024, he was still seeking a zero-hours contract. However, at paragraphs 65(v) to 67 of the request for reconsideration, and relying on new documentary evidence that was not before the Tribunal, the claimant argues that the respondent had given him a zero-hours contract. It is not appropriate for this matter to be dealt with as part of a reconsideration. That is because, firstly, the criteria for relying on new evidence, as set out in Ladd v Marshall, have not been met. Secondly, the new evidence is being used to argue a position that is contrary to the claimant’s position at the preliminary hearing. It would be contrary to the interests of justice to reconsider the preliminary issue on the basis of the claimant’s current position, which is different from that adopted at the preliminary hearing. The respondent did not follow a court order and attempted to influence the tribunal, which caused bias against me.

[79]At paragraphs 68 to 70 of the request for reconsideration, the claimant deals with EJ Fredericks-Bowyer’s direction regarding the preliminary hearing as set out in the letter to the parties dated 28th May 2024. In particular, the claimant argues at paragraphs 69 to 70 that the respondent did not follow that order. The claimant does not expressly state in what respects the respondent did not follow the order, so it is difficult to address that point.

[80]The claimant also reiterates (at paragraph 69 of the request for reconsideration) that the respondent claimed he was a vexatious litigant. This point has been dealt with at paragraphs 14 to 16 above.

[81]At paragraph 72 of the request for reconsideration, the claimant states the Tribunal asked whether there was anything he wished to add. That is not correct: the Tribunal asked whether there was anything further it should deal with or whether either party had any questions in respect of the judgment. The Tribunal did not invite the parties to add anything, as all evidence and arguments had been heard, and judgment had already been given. The claimant used this as an opportunity to state points he disagreed with in the reasons. In particular, the claimant sought to support his position with evidence that had not been considered at the preliminary hearing. While willing to listen to his points of disagreement, the Tribunal made clear it would not receive new evidence. The Tribunal did not limit the claimant to only raising 2 points; the only limitation was on him introducing new evidence. A key witness was not present at the hearing (Mr. JP Boraiu)

[82]The claimant objects to Mr. Sahabi giving evidence on behalf of the respondent instead of Mr. Boraiu. This is dealt with at paragraph 52 above. Some of the findings made by EJ Tueje were without any evidence from the respondent and/or did not prove either self-employment or worker status.

[83]Above paragraph 78 of the request for reconsideration is the title “Reasons The Tribunal determined that I had an unfettered right to Substitute/ that I was selfemployed.” The Tribunal did not make a determination that the claimant had an unfettered right of substitution (see paragraphs 70 above).

[84]At paragraph 78(i) of the request for reconsideration, the claimant states he is unsure on what basis the Tribunal determined he had an unfettered right of substitution. As stated, the Tribunal did not make that determination.

[85]At paragraph 78(ii) of the request for reconsideration, the claimant refers to the Tribunal’s findings of fact that sometimes he sought to swap shifts without giving any reason. Those aspects of the respondent’s written evidence that were put to the claimant in cross-examination, they are dealt with at paragraph 38 of the written reasons, and some examples of the occasions he sought to swap are at paragraphs39.1 to 39.6 of the written reasons, which include occasions when no reason is stated for seeking a swap (see paragraphs

39.2 to 39.5 of the written reasons).

[86]The claimant’s point raised at paragraph 78(iii) of the request for reconsideration is dealt with at paragraph 69 above.

[87]The point raised by the claimant at paragraph 79(i) of the request for reconsideration is addressed at paragraph 54 of the written reasons, which sets out the Tribunal’s findings and its reason for making that finding.

[88]The point raised by the claimant at paragraph 79(ii) of the request for reconsideration has been dealt with at paragraph 70 above.

[89]The point raised by the claimant at paragraph 79(iii) of the request for reconsideration expresses his disagreement with the written reasons, but on its own, disagreeing with the Tribunal’s decision is insufficient to warrant

[90]Paragraph 80(i) of the request for reconsideration relates to a point the claimant put to Mr. Sahabi during cross-examination (see paragraph 41 of the written reasons). The claimant put to Mr. Sahabi that Mr. Boraiu was an employee and not self-employed, and yet Mr. Boraiu had also sought to swap a shift. The claimant’s position being that similarly, him seeking to swap shifts did not mean he was self-employed. The Tribunal’s conclusion on this point is at paragraph 67 of the written reasons, as quoted in the request for reconsideration. The Tribunal concluded that Mr. Boraiu, as an employee, trying to swap one shift because he was unwell, was different from the claimant seeking to swap shifts for various reasons, and sometimes providing no reason at all.

[91]Paragraph 80(ii) of the request for reconsideration is dealt with at paragraph 85 above.

[92]As to paragraph 80(iii) of the request for reconsideration, the Tribunal did not prevent the claimant from cross-examining Mr. Sahabi about any issues of fact, including those arising from paragraphs 17 to 17.25 of his witness statement. However, the Tribunal explained that it was not appropriate to ask Mr. Sahabi during cross-examination to address legal points. The Tribunal also explained the claimant could deal with legal points during his closing submissions.

[93]Furthermore, the point the claimant makes at paragraph 80(iii) is dealt with at paragraph 68 above.

[94]At paragraph 81(i) of the request for reconsideration, the claimant challenges the relevance of the contents of his profile. The relevance of this is explained at paragraphs 68 and 69 of the written reasons.

[95]At paragraph 81(ii) of the request for reconsideration, the claimant disputes that other jobs he has done are relevant to his employment status with the respondent. The relevance of this is explained at paragraph 69 of the written reasons.

[96]As to paragraph 81(iii) of the request for reconsideration, the Tribunal reminded itself at paragraph 61 of the written reasons that it was the actual arrangement between the parties that was relevant. That approach is consistent with authorities such as Uber BV v Aslam. And at paragraphs 68 and 69 of the written reasons, the Tribunal explains how the claimant’s other work was relevant to what arrangement he had with the respondent. Therefore, by doing so, the Tribunal did not misdirect itself.

[97]At paragraph 81(iv) of the request for reconsideration, the claimant disputes that the jobs that an actor does in-between roles, or as side work, prevent that person from having worker status. However, as stated at paragraphs 68 and 69 of the written reasons, the Tribunal explains the relevance of the claimant’s other work and/or side work.

[98]It’s unclear whether the claimant is stating at paragraph 81(v) of the request for reconsideration that the Tribunal has asserted that all acting jobs are on a selfemployed basis: the Tribunal has not made that assertion. Paragraph 68 of the written reasons simply records the claimant’s oral evidence describing side work as jobs an actor might undertake between short-term acting roles.

[99]Paragraphs 82 to 82(vi) of the request for reconsideration deal with paragraph 69 of the written reasons, which deals with integration into the workplace.

[100]Sejpal v. Rodericks Dental Ltd

[2022] EAT 91

is a case both parties relied on: the claimant cites it at paragraph 16 of his skeleton argument, and the Tribunal referred to it in its written reasons. Sejpal sets out various tools that can assist in determining whether an individual is a worker. Whether an individual is integrated within a company is one of the tools referred to. And at paragraph 69 of the written reasons, the Tribunal explains why the claimant working for BreakAway is relevant to integration.

[101]As to paragraph 82(i) of the request for reconsideration, the relevance of the claimant’s other jobs is dealt with at paragraph 69 of the written reasons. The relevance is that it is one of a number of factors that relate to integration: on its own it is not determinative, but along with other factors, it’s relevant.

[102]At paragraph 82(ii) of the request for reconsideration, the claimant disputes Mr. Sahabi’s evidence (that all those engaged as entertainers only were selfemployed) was unchallenged. The claimant says he dealt with this point in his witness statement where he stated he was a limb (b) worker. However, the Tribunal found Mr. Sahabi’s evidence was unchallenged for the following reasons:102.1 By dealing with this matter in his witness statement, the claimant is not challenging Mr. Sahabi; in particular, he does not give Mr. Sahabi an opportunity to respond.

102.2 The claimant’s witness statement is dated 3rd November 2024, and so pre-dates Mr. Sahabi’s statement dated 5th November 2024. Therefore, the claimant cannot challenge Mr. Sahabi about a witness statement that the latter has not yet made.

102.3 In any event, the claimant’s assertion in his witness statement that he was a limb (b) worker is not factual evidence; it is an argument or submission. Furthermore, stating that he is a limb (b) worker does not directly address Mr. Sahabi’s statement that all those engaged as entertainers only were self-employed.

[103]At paragraph 82(iii) of the request for reconsideration, the claimant states he does not recall giving oral evidence that the WhatsApp group was proof of integration. Here, the claimant is referring to the Tribunal’s comment at paragraph 71 of the written reasons. The Tribunal accepts its comment was based on a mis-reading of the claimant’s witness statement, and will issue a corrected judgment with reasons. However, for the reason stated at paragraphs110.1 and

110.2 below, that error does not justify progressing the request for reconsideration beyond the sift stage.

[104]Regarding paragraph 82(iv) of the request for reconsideration, the Tribunal is entitled to prefer one witness’s evidence over another’s, particularly where, as the Tribunal found here, that evidence was not challenged or tested in crossexamination.

[105]Regarding paragraph 82(v) of the request for reconsideration, the Tribunal considered the actual arrangement, or the “reality of the relationship” between the claimant and the respondent, as stated at paragraph 93 above.

[106]At paragraph 82(vi) of the request for reconsideration, the claimant makes a factual assertion regarding a matter which the Tribunal has already dealt with in its written reasons. It is therefore not appropriate for the Tribunal to deal with the claimant’s factual assertion as part of this reconsideration.

[107]Paragraphs 83 to 83(iii) of the request for reconsideration deal with paragraph 70 of the written reasons, which addresses substitution. In paragraphs 83(i) to 83(iii) in particular, the claimant makes various factual assertions regarding substitution. The Tribunal has already dealt with the matters the claimant refers to; those matters are dealt with at paragraph 70 of its written reasons. It would therefore not be appropriate to deal with them as part of the request for

[108]Paragraphs 84 to 84(vi) of the request for reconsideration deal with paragraph 71 of the written reasons, which addresses the claimant providing different dates for when he says he became a worker.

[109]Paragraph 84(i) of the request for reconsideration states that the Tribunal misread the claimant’s witness statement. The Tribunal has reviewed the claimant’s witness statement, and accepts that it misread the paragraph referred to. The Tribunal originally understood the claimant’s witness statement to be referring to him joining the respondent’s WhatsApp group. However, the Tribunal now understands that the witness statement refers to the claimant being added to the respondent’s “When I Work” portal. The Tribunal has corrected the written reasons to address this error, and the corrected version will be sent to the parties in due course.

[110]Notwithstanding this correction, the Tribunal considers the threshold at rule 70(2) has not been met for the following reasons:110.1 The Tribunal referred to the date the claimant was added to the WhatsApp group in connection with its finding that the claimant had given different dates for when he said he became a worker. Correcting the reference to the “WhatsApp group” by replacing it with the respondent’s “portal” does not affect the Tribunal’s reasoning. The Tribunal’s reasoning was that the claimant had given different dates for when he said he was a worker. That irrespective of whether one of the dates he gave was the date he was added to a portal, instead of a WhatsApp group, does not alter the position that he gave different dates for when he says he became a worker.

110.2 Secondly, paragraph 71 of the written reasons provides one reason why the Tribunal concluded the claimant was not a worker. The Tribunal expressly stated that the matters dealt with at paragraph 71 were “not the most significant factor.” Therefore, as the correction does not alter the reasoning underpinning a factor that was not central to the Tribunal’s conclusion, the appropriate and proportionate course is to correct the written reasons. It would be disproportionate to proceed with a reconsideration due to that error.

[111]At paragraph 84(ii) of the request for reconsideration, the claimant is rearguing his case. Requesting a reconsideration is not intended to be an opportunity to re-argue matters that the Tribunal has already considered.

[112]At paragraph 84(iii) of the request for reconsideration, the claimant argues he was integrated within the respondent’s workplace. However, the Tribunal has already considered the evidence and arguments in respect of integration, which is dealt with at paragraphs 68 and 69 of the written reasons.

[113]At paragraph 84(iv) of the request for reconsideration, the claimant deals with reasons why the Tribunal should have rejected the evidence and/or arguments put forward by the respondent. However, this is seeking to argue matters which the Tribunal has already considered.

CONCLUSION

[114]The claimant’s reasons for requesting a reconsideration do not disclose any arguments that have a reasonable prospect of successfully establishing that it is necessary and in the interests of justice to reconsider the decision.

[115]Accordingly, these points fail to pass the sift stage at rule 70(2).