Mr N Mcleod v RBH Hotels UK Ltd (formerly Redefine BDL Hotels UK Ltd): 2304315/2018
JUDGMENT
WITH REASONS Decision The Tribunal finds that the claimant was not employed by the respondent and the claim for unfair dismissal against the respondent is dismissed. Claims[1]This is open Preliminary Hearing to determine the Tribunal’s jurisdiction to hear an unfair dismissal claim against the respondent in these proceedings. The respondent resists the claim as it says it was not the claimant’s employer and the claim against it has been wrongly pursued.[2]The parties were represented by Ms Prempeh for the claimant and Ms Burton, counsel for the respondent.[3]The parties advanced their respective cases by reliance on the documents and submissions only. No evidence for either party was called. In the respondent’s case Mr MacPhail was unable to give evidence due to personal circumstances 1 of 6 but the respondent was content to proceed without his evidence and understood that very limited weight would be attached to his witness statement.[4]The Tribunal was taken to a respondent’s bundle and a claimant supplementary bundle. In addition, Miss Burton provided written submissions. Relevant findings of fact[5]The claimant commenced working on 9 June 2008 as a Guest Services Manager. The claimant was engaged to work at Holiday Inn Express London Epsom Downs. The claimant was issued with an offer letter dated 13th of May 2008 with a BDL logo which is at page 10 of the supplementary bundle. This company was Refine BDL Hotels UK Ltd which subsequently changed its name to RBH Hotels UK Ltd (‘the respondent’) in these proceedings. There was data protection information contained in the offer letter relating to BDL and its associated companies.[6]A further terms and conditions document undated at pages 15A to 20 of the supplementary bundle was issued to the claimant which describes the employer as Epsom Racecourse Hotel Company Limited.[7]The claimant worked at the same hotel until he transferred to a Best Western Hotel in November 2014 where he worked until July 2016.[8]On 11 July 2016, the claimant signed a contract of employment with Sankara Hotels Gatwick Ltd. This document is a page 184 to 198 of the respondent’s bundle. The claimant was to work at Hampton by Hill London Gatwick airport. This is confirmed on page 21 of the supplementary bundle. The start date for continuous employment was 9 June 2008 but with the company the date was 11 July 2016.[9]One of the directors of Sankara Hotels Gatwick Ltd (David Hart) was appointed a Director of the company on 1 March 2016. He was also appointed as a Director of the respondent on 22 December 2014.[10]The claimant referred to some documentation from BDL including a disciplinary policy at pages 34 to 45 of the supplementary bundle and BDL also produced a grievance hearing outcome which is at page 28 to 32 of the supplementary bundle.[11]The grievance procedure of BDL is at page 66 of the respondent’s bundle and it defined within its scope as extending to all other managed properties.[12]By an undated announcement or publication at page 33 of the supplementary bundle, but which the Tribunal finds before the claimant began working at Hampton by Hill at Gatwick, BDL signed a management contract to operate this hotel.[13]The document at page 183 is a front cover of the terms and conditions signed by the claimant on 11 July 2016 and states the prevalence of the terms and 2 of 6 conditions document over earlier offer letters. This document is also branded Hampton by Hilton London Gatwick. There was also a handbook issued from Hampton by Hilton Gatwick Airport (pages 78-152).[14]The claimant’s P60s (2017,2018 & 2019) and P45 were issued with Sankara Hotels Gatwick Ltd as the named employer. These are at pages 200 to 208. During the course of submissions, the Tribunal was also informed on an uncontested basis that payslips were issued to the claimant showing Sankara Hotels Gatwick Ltd as the employer although with the RBH logo which appeared on the left.[15]The Tribunal was also taken to portal documents at pages 25 to 27 of the supplementary bundle but the Tribunal does not find that these relate to an employee portal in relation to matters such as annual leave and sickness.[16]The Tribunal finds that the claimant reported into Stephen Wilson, general manager whilst working at Holiday Inn Express Epsom Downs. It was not disputed that he was a Sankara Hotels Gatwick Ltd employee. Applicable law[17]In order for the claimant to bring an unfair dismissal complaint under s.111 Employment Rights Act 1996 (‘ERA’), the claimant must be an employee of the respondent. An employee is defined in S.230 ERA as someone who works under a contract of employment.[18]There is extensive case law on the question of who is an employee. In Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance 1968 2 QB 497 it was said that a contract of employment exists if three conditions are fulfilled: the servant agrees that in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service of his master he agrees expressly or impliedly that in the performance of that service it will be subject to the other’s control in a sufficient degree to make that other master the other provisions of the contract are consistent with it being a contract of service[19]Further, it was stated that freedom to do a job either by one’s own hands or by another’s is inconsistent with a contract of service.[20]The Tribunal is not bound by the label the parties attached to their relationship although it carries some weight. See for example Autoclenz V Belcher 2011 UK SC 41 a case which considered the significance of the terms of a written agreement and the extent to which it reflects the reality or not. 3 of 6[21]In Carmichael V National Power PLC 2000 IRL 43 the House of Lords confirmed that there is an irreducible minimum of mutual obligation necessary to create a contract of employment. Mutuality of obligation is said to be the obligation of the putative employer to provide work and the obligation of the putative employee to accept it. Unless there is mutuality of obligation and a sufficient degree of control cannot be a contract of employment.[22]In Stephenson V Delphi Diesel Systems Ltd 2003 ICR 471. The EAT stated that the significance of mutuality is that it determines whether there is a contract in existence at all. The significance of control is that it determines whether, if there is a contract in place, it can properly be classified as a contract of employment rather than some other kind of contract.[23]If the irreducible minimum is establish the other considerations include the degree of control which the employer exercises over the individual, how the parties have labelled or characterised the relationship, the treatment of tax and national insurance and any other matters that form part of the working relationship all of which are relevant but not in themselves conclusive.[24]In some cases, an individual might be an employee while working but in the absence of an umbrella contract, not an employee when not working see Carmichael for example. Conclusions[25]This is case in which the respondent’s central argument has been that it has been named in these proceedings incorrectly as distinct from an argument the true nature of its relationship with the claimant is not that of employee - employer. The Tribunal has regard nevertheless to the key established tests of mutuality of obligation, control and personal service referred to above.[26]Having regard to the findings of fact reached above the Tribunal concludes that the claimant was not an employee of the respondent.[27]In reaching this conclusion the Tribunal is particularly satisfied that the key documentation does not provide evidence that the respondent was the claimant’s employer.[28]The Tribunal has regard to the claimant’s terms and conditions signed and dated 11 July 2016 which confirmed a start date for continuous employment to 9 June 2008. The Tribunal has regard to the uncontested P 60 for three years, the P45 and payslip issued to the claimant stating the employer to be Sankara Hotels Gatwick Ltd. This provides strong evidence that the respondent was not the employing legal entity.[29]The Tribunal also notes that several of the documents do not refer to the respondent as the employer but instead the contemporaneous documents have reference to Epsom Racecourse Hotel Company Ltd and Hampton by Hilton 4 of 6 London Gatwick in addition to those already identified as referring to Sankara Hotels Gatwick Ltd.[30]The Tribunal also takes into account the lack of any contemporaneous complaint or challenge by the claimant to the identity of his employer and that he worked without protest in this regard and without any lack of clarity. The claimant also offered no oral testimony to the Tribunal to explain why the respondent was correctly identified as his employer. Instead he relied solely on the documents and submissions from his representative.[31]The Tribunal is satisfied that the respondent was providing a managed service to various hotels including Sankara Hotels Gatwick Ltd. As a result, the Tribunal does not place significance on the broad application of the respondent’s procedures. This is not an uncommon occurrence.[32]The Tribunal does not find the arrangements between the claimant and Sankara Hotels Gatwick Limited to be a sham arrangement or that it was an outsourced payroll provider for RBH Hotels UK Ltd. There was no evidence offered by the claimant to support such a conclusion. The claimant relied on there being a common director for both companies but the Tribunal considered this to be insufficient, by some distance, to lead to a conclusion in the absence of no other evidence, that the corporate veil of Sankara Hotels Gatwick Limited ought to be pierced and a finding made that the respondent was the true employer of the claimant. Beyond a submission from the claimant’s representative that there was a close connection between the companies, the Tribunal did not hear evidence or get taken to any documentation in relation to whether the respondent and Sankara Hotels Gatwick Ltd were associated companies though this would not have led to a difference in the outcome having regard to the other findings and conclusions reached.[33]Even if the Tribunal is mistaken about whether this respondent was the claimant’s employer from 9 June 2008, the Tribunal is satisfied that from 11 July 2016 onwards, when the claimant signed his terms and conditions of employment with Sankara Hotels Gatwick Ltd, the claimant was not employed by the respondent.[34]The Tribunal is not being asked to determine if Sankara Hotels Gatwick Limited was the employer of the claimant and thus has not decided that. Disposal[35]Pursuant to regulation 34 of the ET rules of procedure 2013, the Tribunal orders Sankara Hotels Gatwick Ltd to be substituted and served as the respondent in these proceedings and RBH Hotels UK Ltd is to be removed. The Tribunal considers there to be issues between Sankara Hotels Gatwick Limited and the claimant falling within the jurisdiction of the Tribunal. 5 of 6 NOTE: