Mrs K K Malhi v SCS Homecare Ltd: 2402767/2024
REASONS
[3]The hearing was listed as a Preliminary Hearing held in public to determine whether the claimant was employed by the respondent, and if she was, the dates on which such employment covered. The judge was given discretion as to whether to determine the dates of employment, after having determined the question of employment.[4]Unfortunately, there was not sufficient time to hand down a judgment in this hearing. And the decision was reserved. This is that reserved decision.[5]The tribunal benefitted from an electronic bundle of documents prepared on behalf of the claimant that ran to some 42 pages.[6]Ms Mahli gave evidence on her behalf. And the tribunal heard evidence from Mr Singh, a carer at the respondent company, and Ms Mathews, the owner/director of the respondent company, who were both called to give evidence by the respondent.[7]There were three preliminary matters that needed to be resolved at the outset of the hearing. Each are referred to below.[8]The claimant was applying to rely on an audio recording of a conversation between the claimant and Ms Matthews that took place on 02 November 2022. The claimant’s representatives had produced a transcript of this recording. On discussion with the claimant’s representative, it was decided that this application was not being pursued, but that she would pursue it later on in the hearing if the audio recording was needed in some way. This was because there was no dispute as to what was said on 02 November 2022, and the respondent was not challenging the accuracy of the transcript. In short, the audio recording would add no value to the evidence already before the tribunal.[9]The respondent presented its witness statements late. Witness evidence needed to be disclosed by 25 April 2025, yet the respondent only presented its witness statements on 07 May 2025. The respondent applied to rely on its witness statements. The judge is grateful to Mrs Hamid who approached the matter pragmatically. She accepted that allowing the evidence would not prejudice the claimant, that she had read them, and she was able to cross-examine the witnesses in question. The tribunal therefore allowed the witness evidence of the respondent.[10]Similarly, the respondent applied to rely on two additional documents. These were also sent to the claimant and the tribunal on 07 May 2025, despite the parties being directed to disclose relevant documents by 28 March 2025. The documents were clearly relevant. Mrs Hamid again raised no objections to them being allowed in as evidence. These documents were accepted by the tribunal. Mrs Hamid was informed that she could ask the claimant to give evidence on the contents of those documents if she considered it necessary. Mrs Hamid did not consider it necessary to do so when the claimant was sworn in.[11]There is one matter that the tribunal does comment on for the purposes of this judgment. The claimant was present in the office of Mrs Hamid. Mrs Hamid remained present throughout the claimant’s evidence, and she was assisting her with navigating the electronic documents. However, there was occasion where the claimant appeared to be seeking some guidance from Mrs Hamid. This was far from ideal and led the tribunal to remind the claimant on a few occasions that she was not to confer with Mrs Hamid. However, on the face of it, it appeared that the claimant was limiting her interactions with Mrs Hamid to seeking clarification of a question and/or to ensure the correct document was reached. This did not impact upon the claimant’s evidence.LIST OF ISSUES
[12]The judge was to first determine whether the claimant was employed by the respondent. If the claimant was found to have been employed by the respondent, the tribunal may then go on to decide the dates of the claimant’s employment.[13]The tribunal may decide to hear evidence and submissions on both matters together or approach the two issues separately. That was at the discretion of the tribunal at this hearing.THE LEGAL FRAMEWORK
[14]The start of work has been considered in a series of cases, when considering the concept of continuous employment for the purposes of an unfair dismissal complaint.[15]In Smith v The International Development Co plc EATS 1422/01 the Scottish EAT (the President, Mr Justice Lindsay, presiding) held that the effect of General of the Salvation Army v Dewsbury 1984 ICR 498, EAT, is that ‘starts work’ refers to the beginning of an employee’s work under the relevant contract of employment, and that ‘to do acts merely consistent with a contract is not to do acts under or by virtue of the contract’.[16]Similarly, the EAT in Koenig v The Mind Gym Ltd EAT 0201/12 (Langstaff P presiding) held that work must be undertaken under a contract of employment, rather than a separate and ancillary collateral contract. CLOSING SUBMISSIONS[17]In closing submissions, Mr Hendley submitted the following:a. The respondent witnesses were consistent throughout, whilst the claimant did not answer the questions fully and was confusing. Invite the tribunal to prefer the evidence of the respondent.b. The respondent applied for a DBS certificate for the claimant on 02 November 2022, with a view to starting the job on 25 November 2022. And this fits with the request from Ms Mathews for the claimant to return the uniform.c. The claimant was provided with information about service users by Ms Mathews, and she uses that today.d. There is no indication in the documents that the claimant did anything more that an induction.e. The claimant’s DBS certificate is dated 28 February 2023, it is doubted whether the claimant could have commenced work before even this time.f. The claimant never started work. She had an induction on 03 November 2022 and then never returned. In the alternative, we say that the claimant was dismissed on 06 November 2023, which is the date on which Ms Mathews requested that the claimant return her uniform.g. Under the claimant’s Certificate of Sponsorship, it was not open for the claimant to start work until 25 November 2022. And therefore, she cannot have been employed before this date.h. It is a surprise that the claimant at no point raises with the respondent that she ws not being paid. The first thing claimant raises is about maternity pay, and not about wages not being paid.[18]Mrs Hamid made the following submissions:a. The claimant was a student before the date of the Certificate of Sponsorship, and so could work limited hours on her student visa. She was able to undertake training at that stage.b. It is clear that the claimant had a contract to work for the respondent, this is shown by Certificate of Sponsorship.c. The claimant was invited to Ms Mathews’ home on 03 November 2022. Why else would Ms Mathews share her address with the claimant. She was picked up from her address and then continued to work throughout.d. The claimant missed a phone call from Mr Singh. That is evidence that the claimant was still working in 2023. There is no other explanation as to why Mr Singh would call the claimant.e. The claimant has provided pictures of her in her uniform on the day of her induction. There are no pictures after that as the claimant lost her phone.f. The claimant was told by Ms Mathews that her initial uniform was a temporary uniform. She was returning this, after which she would be provided with a permanent one.g. Why would Ms Mathews ask for a fit to work certificate and a sick note if the claimant was not employed.h. Why would it take to 15 May 2023 to report the claimant to the home office if she walked out of her induction on 03 November 2022.i. Ms Mathews at the case management hearing explained that the claimant had not attended an induction, but this has changed at this hearing. Her evidence is unreliable. FINDINGS OF FACT The tribunal makes the following findings of fact based on the balance of probability from the evidence it has read, seen, and heard. Where there is reference to certain aspects of the evidence that has assisted the tribunal in making its findings of fact this is not indicative that no other evidence has been considered. Its findings were based on all of the evidence, and these are merely indicators of some of the evidence considered in order to try to assist the parties understand why it made the findings that it did. The tribunal does not make findings in relation to all matters in dispute but only on matters that it considers relevant to deciding on the issues currently before it.FINDINGS OF FACT
[19]The claimant was sponsored as a skilled worker by the respondent, with the Certificate of Sponsorship covering the period of 02 November 2022 until 03 November 2023. It was recorded that the claimant had secured employment with the respondent with the start date of 25 November 2022. The claimant’s contractual start date was 25 November 2022.[20]The claimant was likely introduced to the respondent through a person named Mrs Mahli. Mrs Mahli had introduced potential workers to Ms Mathews previously. It is unclear when this took place. Mrs Mahli is not an employee of the respondent, nor is she contracted in any capacity by Ms Mathews. The tribunal had no reason to reject the evidence of Ms Mathews on this matter.[21]The claimant was interviewed by Ms Mathews’s daughter on 02 November 2022. And a health questionnaire was completed on behalf of the claimant. This included recording that the claimant was not pregnant at that stage.[22]On 02 November 2022 at 10.04, Ms Mathews submitted a DBS application form in respect of the claimant.[23]The claimant was enrolled onto a training course through Flexebee, with login details provided to the claimant at 14.34 on 02 November 2022 (see p.6). The course remained incomplete at least on 04 November 2022 (see p.42).[24]Later on in the day on 02 November 2022, there was a telephone conversation between the claimant and Ms Mathews. During this phone call (see transcript pp.17-22) the following was discussed:a. the claimant confirmed her agreement to attend an induction on 03 November 2022. This was to be over 7.5 hours.b. There was some discussion about the claimant’s previous experience as a care worker.c. It was explained to the claimant that they would see how induction went, after which the claimant would be informed how many days she would be doing.d. The claimant confirmed that she was moving to Oldham and that she was going to learn to drive.e. Ms Mathews informed the claimant that the respondent had applied for DBS, and that it usually takes 6-7 days.[25]The claimant was required to attend at Tommy Field Market in Oldham at 06.30am on 03 November 2022. The claimant was to be picked up by Mr Singh. The claimant was told this by Ms Mathews on 02 November 2022 (see p.7).[26]The claimant was not at the pickup point as expected, and Mr Singh attended to the first client appointment without the claimant.[27]The claimant did not attend at Ms Mathews house for an induction but arrived at a service users house at around 11.30am. The claimant was accompanied by her husband who had driven her. This was not an easy finding of fact to resolve. The claimant and Ms Mathews give very different evidence. And there is little in terms of documentary evidence. On the one hand Ms Mathews did send the claimant her home address (see p.8) and the claimant had to get information about clients from somewhere. This all favours the claimant’s version of events. Whilst, Mr Singh was clear in his evidence that he did not pick up the claimant later from Ms Mathew’s home and that this was not possible due to diving between the homes of service users. He says that the claimant turned up at a clients house herself later on in the morning. And that she was with her husband. Ms Mathews was also clear in her evidence that the claimant did not attend at her home that morning and that the claimant was not picked up by Mr Singh from her home. Ms Mathews also explained under cross-examination that she had sent the claimant Mr Singh’s phone number, and she must have got the service users address from him. This all supports the respondent’s version of events. And furthermore, the claimant has produced pictures of her first day at work, the earliest of which is 12.03pm. this is suggestive that the claimant started work around this time, otherwise why would the claimant have taken such photos (pp.23-24). Given these photos, and given the findings below (of which the claimant’s evidence has been rejected, which in turn reduces the reliability and accuracy of the claimant’s evidence), the respondent’s evidence has been preferred as being accurate, on the balance of probability. This is a narrow finding of fact.[28]Whilst undertaking her induction, the claimant was informed of key information about service users that she would be attending to that day. This included the name of Mohammed’s wife. This was because his wife had full-time care of Mohammed, and understanding her role was important. On balance this appears plausible, and the tribunal accepts this evidence of Ms Mathews.[29]The claimant was not undertaking any work herself during the induction. Rather, she was observing the different tasks that she would be required to undertake when she started employment. This was a means of the claimant learning how to do the role through observing of others. This finding is based on the conversation between Ms Mathews and the claimant on 02 November 2022, the fact that the claimant had not completed her training course, the claimant was not yet DBS cleared and the claimant’s employment was not due to commence until 25 November 2022.[30]The claimant, at around 3pm whilst in the car in between client users’ homes, informed Mr Singh and Ruby that she did not want to do caring and then left the induction. The claimant called Ms Mathews to confirm that she did not want to be a carer (para 14 of Ms Mathews statement). The claimant at no point completed any work for the respondent after this date. This is a key finding of this decision. The tribunal preferred the evidence of Mr Singh and Ms Mathews. As this is consistent with what then happened following 03 November 2022. Particularly on 06 November 2022 (see p.44), when Ms Mathews messaged the claimant to require her to return her uniform or pay £35 for it, to which the claimant replied to say she had washed it and put it in a bag ready to be posted. The tribunal rejects the claimant’s evidence that she had been provided a temporary uniform, and it was that that she was returning. And that she was then to be provided with a permanent unfirm. On balance, the claimant’s evidence appears implausible. And further, the claimant has produced no evidence that she is in possession of a current uniform, and this is despite her case being that she continues to be employed to this day. If the claimant had a current uniform, then evidence of that would have been relevant. Furthermore, during a text exchange on 20 December 2022, the claimant messaged Ms Mathews asking for her to approve maternity leave. To which Ms Mathews replied to say ‘U never worked for us so how do we do matenerty (sic)’. Interesting, and tellingly, the claimant does not dispute this in her reply. Rather she writes ‘no means could you write letter for me I m on leave bcz u know I can join aftrr having baby’. The claimant’s evidence was also that she was always provided a work rota. And that she got these weekly. And yet the claimant has not produced a single rota in evidence in this case, which would support her working for the respondent. And even further, the claimant says she has been working, and throughout the entire period she has never been paid. And yet the claimant has at no point raised this as a problem. All of this led the tribunal to the findings made above.[31]The claimant’s enhanced DBS certificate was issued on 28 February 2023.[32]On 29 January 2023, the claimant informed Mrs Mahir that she was ready to start work from 01 February 2023. The claimant got a response that same day stating that she needed to get a fit to work certificate form her doctor. Although this is a response from Mrs Mahir, Ms Mathews accepts in her witness statement and confirmed in oral evidence that this was at her request (see p.14 and para 23 of Ms Mathews witness statement).[33]The claimant forwarded a doctor’s letter to Mrs Mahir on 06 February 2023 (see p.14). The letter itself is at p.25 of the bundle. She did not send a copy to Ms Mathews. Ms Mathews did not receive this document.[34]On 21 February 2023, the claimant messaged Mrs Mahir asking whether she could ‘join my job now’ (see p.13).[35]Similarly, on 14 March 2023, Mrs Mahir requests a doctors letter from the claimant (see p.12). This was again at the request of Ms Mathews (see para 27 of Ms Mathews witness statement).[36]On 30 January 2024, the claimant received a letter from the Home Office, which explained that her permission as a General Worker had been cancelled, and would expire on 20 March 2024 (see pp.29-30).CONCLUSIONS
[37]Based on the findings above, this tribunal has found that the claimant was not employed by the respondent. The burden of proof rests on the claimant to establish that she had worked for the respondent. And yet the evidence suggests otherwise. This evidence includes the following:a. The consistent evidence between Ms Mathews and Mr Singh of the claimant’s decision that care work was not for her mid-way through the induction day on 03 November 2022. At which point she left the induction day and never returned to do any work for the respondent.b. The request by Ms Mathews to return the uniform, in light of the claimant deciding not to commence employment with the respondent.c. The fact that the claimant has never been paid by the respondent, and yet has never raised this as a problem.d. The use of phrases by the claimant, including her referring to needing to start work on 29 January 2023 (p.16) and asking ‘can I join my job now…’ on 21 February 2023 (p.9).e. That when Ms Mathews replied to the claimant on 20 December 2022 to say that the claimant has never worked for the respondent, the claimant does not dispute this in any way (p.39).f. There are no rotas provided. And this is despite the claimant saying she got sent them every week. If such existed then they would have been disclosed as part of this case.[38]The decision of this tribunal is that the claimant was due to start her employment with the respondent on 25 November 2022. However, she expressly told Ms Mathews, the owner of the respondent on 03 November 2022 that she was not interested in taking up the work. And, consistent with this, the claimant never attended work for the respondent. In short, the claimant retracted her acceptance of the job before it began. The respondent was therefore at no point an employee or worker of the respondent. She never worked under a contract of employment or contract to provide personal service.[39]However, the claimant did attend an induction on 03 November 2022. And this tribunal has considered whether this was preparatory activities carried out under the contract of employment, or an activity that was collateral to it. And this tribunal has concluded that this activity was collateral to it, rather than carried out under a contract of employment. And the reasons why the tribunal has found this is that the claimant was not paid (and there is no evidence of an agreement as to pay for the induction day), this day was to familiarise the claimant with the job, the claimant had not yet completed training nor had received DBS clearance and therefore was not allowed to undertake any work at this stage, and the respondent’s evidence is that the claimant observed the work and did not undertake work herself on this day (and the claimant does not give evidence to the contrary). In other words, the claimant was not providing personal work in return for payment. And the induction process was not carried out under a contract of employment. Even if the tribunal is wrong on this matter, it would have held that the claimant’s employment lasted for one day only, that being 03 November 2023. With the claimant resigning on that day through her words and crystalised by her subsequent conduct, with the respondent having accepted that resignation on that same day.[40]Given that the claimant has been found not to have been employed by the respondent at the material times, all claims in this case must therefore be dismissed. Approved by: