Employment Judge GeorgeIn person for claimantDate 16 July 2021
JUDGMENT
[1]The claimant was a worker of the respondent within the meaning of s.230(2)(b) of the Employment Rights Act 1996;[2]The claimant was not an employee of the respondent within the meaning of s.230(2)(a) of the Employment Rights Act 1996;[3]There was an unauthorised deduction from wages in respect of the failure to pay the claimant his wages when they fell due.[4]All sums due have now been paid, so although the claim is well-founded, no order is made for the respondent to pay any sums to the claimant under s.24(2) of the Employment Rights Act 1996 because it is not appropriate to do so.[5]It was reasonably practicable for the claimant to present a claim in respect of allegedly unpaid notice pay within the normal time limit. The Tribunal has no jurisdiction to consider such a claim because either it is not one that can be brought by a worker under section 23 of the Employment Rights Act 1996 or it was not presented within the time limit provided for by that section.[6]Save as aforesaid, any claim for unauthorised deduction from wages is dismissed.[7]The Tribunal has no jurisdiction to consider a claim under article 3 of the Employment Tribunals Extension of Jurisdiction (England & Wales) 1994.[8]All claims are dismissed.
REASONS
[1]In this hearing which took place by CVP on 27 April 2021 the claimant represented himself and the respondent was represented by Mr Hockley, assisted by his fellow directors: Mr H Sutherland and Mr M Stone (finance director). With the consent of the claimant, the three directors each made submissions where they needed to cover the particular matters which were within their personal area of responsibility.[2]I had available the following documents:a. From the tribunal file: the early conciliation certificate; claim form with attached particulars of claim; response form which included the grounds of response in sections 6 and the continuation sheet; the case management order of EJ Slater of 28 February 2019; the case management order of EJ Hyams of 16 April 2020.b. The tribunal file also contained a number of documents (49 pages in total) which had been provided to the tribunal at the time of the hearing before EJ Slater. I was able to share my screen with the parties during the hearing in order to take evidence about what some of those documents were.c. The respondent had emailed the tribunal on 26 April 2021 with a list of 8 documents upon which they wished to rely and those 8 documents as attachments.d. The claimant indicated that he wished to rely upon the documents he had submitted for the preliminary hearing of 16 April 2020 (which the tribunal administration were able to obtain for me) and a number of documents which he forwarded by email on the morning of the hearing: a document which was described as a tenant’s rent statement; a witness statement; and two letters from a consultant from University College London Hospitals NHS Foundation Trust. He had provided a schedule of loss which predated the payment of his basic salary. During the course of the hearing Dr Jain told me that his losses were better explained in correspondence with ACAS dated 25 April 2019 which the parties agreed I should look at in order to understand how he put his case on the amount of his loss.[3]The claimant had requested a postponement of the final hearing on 26 April 2021 which was refused the same day by EJ Lewis because of the length of the delay to resolving the issues between the parties. He explained that he had therefore had to prepare the statement and other documents overnight. He had requested an adjournment (as he explained in his witness statement) because he had been unable to get legal advice to assist with preparing his claim and because he had suffered the bereavement of his grandfather in India on 24 April 2021. This had had an adverse impact upon his own mood which “could be the reason of relapse of depressive disorder”. As he put it in paragraph 3 of his statement, “Considering my health related issues (Please refer to Prof.Joyce’s letter sent to Watford ET this morning), on-going regulatory matters for the past several years further complicated by Covid-19, Lockdown, representing as litigant in person without any legal knowledge and recent surge of 2nd wave in India affecting my friends and relatives, I will appreciate and plead to the respectable Judge to consider these factors on compassionate grounds before deciding about the matters related to the non-compliance of the orders (Issued during the preliminary hearing held on 16th April 2020) and accept this statement, as a response to those orders.”[4]Following a period of early conciliation which took place between 11 January 2018 and 22 February 2018, the claimant started proceedings against the respondent in Manchester Employment Tribunal on 23 March 2018. The response form was entered on 2 May 2018 and the claim was case managed by Employment Judge Slater on 28 February 2019. She set out in paragraphs (5) to (19) a summary of the claims and the discussion on that day to which I refer by way of background but which were expressly stated by EJ Slater not to be a substituted for the full factual case of the respective parties. She identified that the following complaints were pursued at that time:a. Unlawful deduction from wages in respect of wages not paid for work done by the claimant at Oldham hospital in his capacity as locum doctor in the period 25 September 2017 to 3 November 2017;b. Breach of contract in respect of an alleged failure to pay the claimant for accommodation and travel costs;c. Breach of contract in respect of an alleged failure to arrange an IR35 joint assessment;d. Breach of contract in respect of failure to give 2 weeks’ notice of termination of the contract.[5]She set out the issues to be determined in paragraph (21) of her record of preliminary hearing sent to the parties on 7 March 2019.[6]Since the claimant no longer worked in the Oldham area, he requested a transfer to the Watford Employment Tribunal which was not objected to by the respondent and the case was listed for a one day full merits hearing on 16 April 2020. Unfortunately, the hearing had to be converted to an audio hearing by telephone in compliance with the Presidential Guidance in Connection with the Conduct of ET Proceedings during the COVID-19 Pandemic of 18 March 2020. It was case managed by Employment Judge Hyams on 16 April 2020.[7]At the time of the telephone preliminary hearing before Judge Hyams he also expressly made no findings of fact and, rightly in my view, stated that it would be wrong to make a binding finding of fact without hearing oral evidence unless there was a formal admission of that fact (see his paragraph 7 of the record of preliminary hearing sent to the parties on 30 April 2020).[8]It was acknowledged before Judge Hyams by the claimant (see paragraph 22 of the order sent to the parties on 30 April 2020) that within 14 days of the hearing of 28 February 2019 the respondent had paid him the amounts that he claimed as his “wages”, subject to the deduction of income tax and NICs calculated on the assumption or basis that he was an employee.[9]Following that payment, the issues which appeared to be before the tribunal were set out by Judge Hyams in paragraph 29 of the order sent to the parties on 30 April 2020. Those were,a. Was the claimant an employee of the respondent?b. If not, was the claimant a worker within the meaning of section 130(3) of the ERA 1996, providing services to the respondent?c. Assuming that the answer to one of the first two preceding questions is “yes”, does the claimant’s failure to provide the respondent with bank details and the details required for the HMRC new starter form mean there was, in the failure to pay those wages before those details were provided, no unlawful deduction from wages?d. If not, and there was accordingly an unlawful deduction from the claimant’s wages as a result of him not being paid those wages until a short time after the hearing of 28 February 2019, did the claimant suffer any financial loss which was attributable to that failure so that it is (applying section 24(2) of the ERA 1996) “appropriate in all the circumstances to compensate [the claimant]” for that loss?”e. Assuming that the claimant is found to have been an employee of the respondent, did the respondent breach the claimant’s contract of employment by failing to pay him any of the expenses which he claims were wrongly not paid to him? In this regard the following questions will need to be answered: i. Had the claimant by the time of making the claim provided the respondent with receipts in respect of the claimed expenses? ii. If not, was the respondent under any contractual duty to pay those expenses?f. Assuming that the claimant is found to have been an employee of the respondent, was it reasonably practicable to present the complaint of a failure to give notice of the termination of the claimant’s contract of employment within the normal time limit? If not, was it presented within a reasonable period of time after the expiry of that time limit when an application to amend the claim was made at the hearing of 28 February 2019?g. Assuming that the claimant is found to have been an employee of the respondent and that the claim was made in time (i.e. the tribunal determines the questions in the preceding subparagraph in the claimant’s favour): i. Was the respondent required by the claimant’s contract of employment to give the claimant 2 weeks’ notice of the termination of that contract? ii. If so, was the Trust acting as the respondent’s agent when it told the claimant, more than 2 weeks before 3 November 2017, that his employment would not continue beyond that date? Preliminary issues[11]Before hearing evidence on the issues I needed to decide whether the claims set out in paragraphs 30 & 31 of the order sent to the parties on 20 April 2020 remained live. Additionally, the claimant had first sent his statement to the respondent on 27 April 2021, the day of the hearing itself and applied for leave to rely upon it and upon the late disclosed document which the respondent had first seen on 22 April 2021.[12]I dealt first with whether the claimant should have leave to adduce the statement and late disclosed invoice into evidence. It is fair to say that there was a considerable amount of argument and counter-argument about whether there had been timeous disclosure of documents, and whether there had been misstatements by the respondent in saying that they had not received documents before an earlier hearing which made it difficult to understand the parties’ respective positions in relation to specific complaints about the conduct of the proceedings. Much of that appeared to me to be, to put it colloquially, water under the bridge. It seemed to me that, although the documents were clearly not presented in the accessible or conventional form of a file of chronologically ordered documents, there was no prejudice to the respondent in the claimant being able to rely upon the documents which he had sent to them and to the Tribunal before earlier preliminary hearings. Similarly, irritating though it may have been for the respondent that, according to them, the claimant “routinely missed a number of orders”, they did not say that they were put to any prejudice or difficulty in having to question the claimant about those documents.[13]The respondent argued that the claimant should not be able to rely upon the document from the housing group which had been sent to them on 22 April 2021 because it was an invoice and not a receipt which therefore, they argued, did not show proof of payment. They argued that it prejudiced them because it had not been provided in time and the claimant, as a professional doctor, was capable of complying with the Tribunal orders in time. The witness statement had been sent at 10.18 am on the morning of the hearing which had been due to start at 10.00 am and had only been delayed because I had been allocated an urgent one hour hearing and the start time had been put back until 11.00 am.[14]It did not appear that any case management orders specifying the time at which statements or bundles of documents should be prepared had been sent by the Tribunal since those of Judge Slater. The notice for the hearing on 27 April 2021 did not include any and, therefore, although one would expect any party to supply the other with relevant documents as soon as they came into their possession, and to supply written statements in good time before the hearing, the claimant was not, strictly speaking, in breach of an order. The respondent was unable to articulate any specific prejudice in having to address the matters set out in the claimant’s statement or in the invoice. I also took into account the basis upon which the claimant had argued that there should be a postponement. The respondent had come prepared to present their case and I concluded that the interests of justice were in favour of permitting the claimant to rely upon the statement, the invoice from the housing group, as well as on the documents first submitted on 16 April 2020, which were forwarded again on 27 April 2020.[15]Judge Hyams did not include in that list of issues the claim of breach of contract in respect of an alleged failure to arrange a joint IR35 assessment between the Trust and the claimant (see paragraph XX2.c. above from Judge Slater’s list). Judge Hyams explained in paragraphs 10 and 11 of his record of hearing, it would be inconsistent for a person who was, in fact and law, directly employed under a contract of employment to have an implied term in their contract of employment which could only benefit someone who claimed to be entitled to be treated for tax purposes as self-employed and was providing their services through an intermediary. The claim would depend upon the claimant having, at one and the same time, two mutually incompatible positions.[16]Judge Hyams therefore made the following order at paragraph 32 of the orders sent to the parties on 30 April 2020: “Unless the claimant states within 42 days of receiving this document a cogent reason why [the claims described in paragraphs 30 and 31] should not be struck out under rule 37, those claims will be struck out.”[17]I explored with the parties their understanding of the effect of that order. The respondent said that no response had been sent by the claimant to that order. Indeed, they alleged that there had been a consistent lack of response to the orders made by Judge Hyams. The respondent’s expectation was that that particular allegation would be struck out and removed from the claim because of a lack of response from the claimant.[18]The claimant said that, as a litigant in person, he had found it difficult to understand the whole document and had not been able to digest it. He saw no basis why that allegation should be struck off. He had thought that everything would be discussed at the final hearing. The Tribunal had not sent anything about those particular claims. He had talked to a friend and had expected to receive an unless order. I read out to him the terms of rule 38 of the Rules of Procedure 2013. He argued that, if the Tribunal office did not receive any response within 42 days, generally they send out another letter. They had not done so and the claimant argued that that part of the claim should not be struck out. He also argued that misleading things had been said by the respondent during the preliminary hearing in front of Judge Hyams. I took that to be an implication that this had affected the judge’s decision to make the order at paragraph 32. Whether the claims set in paras.30 & 31 of EJ Hyan’s order remain live.[19]I took time to investigated the chronology apparent on the Tribunal file following the order being made on 16 April 2020 and sent to the parties on 30 April 2020. The 42 day deadline was therefore due to expire on 11 June 2020. By paragraph 2 of the case management orders sent to the parties on 30 April 2020 (page 11 of the record of hearing), the claimant was ordered to clarify his position in regard to his claim to unpaid holiday pay. This had not been complied with by the time of the final hearing but was not made subject to any sort of automatic sanction.[20]On 2 June 2020 the claimant applied for an extension of deadline citing “current prevailing circumstances secondary to Covid-19 Pendemis. It is because of this I couldn’t get any legal opinion from CAB and no solicitor is willing to give an appointment because they don’t want to contravene the guidelines on social distancing till 26 June 2020. I tried to seek the advice on the Pro Bono basis (I am unemployed since Dec.2019) and clerk stated that no one is available till 26 June 2020.”[21]On 28 June 2020 Judge Hyams gave a direction that time for compliance should be extended until 31 July 2020. This order crossed with a communication dated 23 June 2020 from the respondent by email saying that the claimant had not complied with the order dated 22 April 2020 and arguing that the case needs to be struck out or an unless order granted. Judge Hyam’s extension does not seem to have been communicated to the parties. It should be noted that June 2020 was during a particularly challenging period for the administration because of the effect of the national lockdown due to the coronavirus pandemic. The claimant chased his application for an extension on a couple of occasions and the matter was re-referred to an employment judge. On 14 July 2020 Employment Judge Heal granted an extension of time to 7 August 2020. She could have done so retrospectively but, in any event, that extension was within Judge Hyam’s original extension. I am therefore of the view that the order was therefore effective to extend time for compliance with paragraph 32 until 7 August 2020.[22]On 14 July 2020, Judge Heal’s extension was sent to the parties and on the same date Mr Hockley of the respondent wrote (copied to the claimant) saying “I trust that the extension is based on an “unless” order basis and will struck out automatically in non-compliance”.[23]On 7 August 2020 the claimant wrote seeking a further extension on the basis that he had not been unsuccessful in getting pro bono legal advice and, if he did not succeed in one more week, he would respond himself. He referred to his status as a litigant in person and the complexity of the case. That request was referred to Judge Hyams on 28 August 2020 and, on 10 September 2020, he declined to make any further order. This was communicated to the parties on 3 October 2020 with these further words of Judge Hyams; “If the claimant fails to comply with any order then that will affect the viability of the part of the claim to which the order relates.”[24]No further communication was made to the parties under rule 38(1). That rule reads in full: “An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred.”[25]Therefore it seems to me that time for compliance with para.2 of the CMOs and para.32 were extended to 7 August 2020. The claimant applied on that date for a further extension of time but it was not granted.[26]My view is that the order was sufficiently clear in its terms that, when 7 August 2020 passed without compliance by the claimant with the order in paragraph 32 and the application for further extension was expressly refused by Judge Hyams, the claims at paragraph 30 and 31 of his order were automatically struck out on that date without further order. It is regrettable that ET did not send confirmation of that as required to do under para.38(1) but effect of the order is clear.[27]Therefore the issues for me to decide at this final hearing are as para.29 of the order of Judge Hyams. Although the claimant referred to a claim for holiday pay and wrongly deducted employers National Insurance in this email of 16 April 2020 there has been no application to amend to include those in the claim and I note that that predated the preliminary hearing before Judge Hyams.
The Law
[28]The relevant sections of the ERA are, 13 Right not to suffer unauthorised deductions(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. … (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion. … … 23 Complaints to [employment tribunals] (1) A worker may present a complaint to an [employment tribunal]— (a) that his employer has made a deduction from his wages in contravention of section 13 … …(2) Subject to subsection (4), an [employment tribunal] shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received. … (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable” … 24 Determination of complaints (1) Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer – (a) In the case of a complaint under section 23(1)(a), to pay to the worker the amount of any deduction made in contravention of section 13, (b) … (2) Where a tribunal makes a declaration under subsection (1), it may order the employer to pay to the worker (in addition to any amount ordered to be paid under that subsection) such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of. (1) In this Act ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract shall be construed accordingly.(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.”[29]In relation to the definition of employee, the so-called ‘mixed test’ set out in Ready Mixed Concrete South East Limited v The Ministry of Pensions and National Insurance [1968] 1 All ER 4633 QBD has stood the test of time. Three questions are posed, the answers to which inform the Employment Judge deciding whether there was a contract of employment of the factors pointing for and against such a conclusion. 1. Did the worker agree to provide his or her own work and skill in return for remuneration? 2. Did the worker agree expressly or impliedly to be subject to a sufficient degree of control for the relationship to be one of employment? 3. Were the other provisions of the contract consistent with it being a contract of service? One example of a factor the presence of which is consistent with a contract of service or of employment and the absence of which is inconsistent with such a contract is mutuality of obligation. Personal performance is another factor which has in previous authorities been considered to be such a factor.[30]More recently, the Supreme Court authority of Autoclenz Limited v Belcher [2010] I.R.L.R 70 SC suggests that the first question to consider is ‘what is the true nature of the agreement between the parties?’ focussing on the actual legal obligations of the parties and examining all relevant evidence including the written terms in the context of the whole agreement, the parties’ conduct in practice and their expectations of each other. What was agreed might be what is written down but it is not necessarily entirely included in written documents.[31]So in Autoclenz an express clause in the written contracts that permitted the workers to provide substitutes (and thus negating the requirement for personal service) was found not to reflect reality. Furthermore, in practice they were expected to perform the work offered to them which contradicted a different express term of the written contract. The Supreme Court held that it was what had been agreed in fact which was determinative of the nature of the relationship and despite having signed contracts describing themselves as self-employed sub-contractors, they upheld the finding of the Employment Tribunal that, not only were they workers, but they were also employees.[32]In employment law the term “worker” is different to and wider in meaning than the term “employee”. Both limbs of the definition in s.230(3) ERA require there to be a contract of some sort between the parties. When considering whether or not the claimant came within the second limb of the definition and was, therefore, a “limb b” worker but not an employee, Iask myself did the claimant work under a contract whereby he undertook personally to carry out work or services for another party to the contract who was not a client of a profession or business undertaking carried out by the claimant?[33]If there is a contract between the parties then it is necessary to consider whether the claimant undertook personally to carry out the work (i.e. that the condition of personal service is satisfied) and whether the party for whom the work was done was a client of a business carried out by the claimant. Whether or not the contract includes an obligation to carry out the work personally is determined by construing the contract in the light of the circumstances in which it was made. Again, I have to consider what the parties actually agreed. If there are written terms of agreement do those represent the true intentions or expectations of the parties? Evidence of those intentions and expectations may be found in any documentary evidence, both that which dates from the time of the contract and from any later stage. The latter may shed light on what was agreed initially or may evidence an express or implied change to the agreement.[34]By art.3 of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994, proceedings may be brought before an employment tribunal for damages for breach of contract by an employee, that is to say someone who is employed under a contract of service.
Findings of fact
[35]The respondent is an agency which supplies locum doctors. The claimant is a consultant psychiatrist. The claimant worked as a locum in the Pennine Care NHS Foundation Trust (hereafter referred to as the Trust) at the Royal Oldham Hospital from 25 September 2017 to 3 November 2017.[36]Part of the confusion in the present case arises because it appears that the claimant started work before some of the necessary formalities had been completed and the contract with the Trust was then of a very short duration. The following findings of primary fact about the basis upon which Dr Jain was engaged are taken, in part from his oral evidence and that of Mr Sutherland and in part from documents together with inferences that I draw about what the party’s intentions must have been about the status of the claimant from the way that they conducted the relationship.[37]On 22 September 2017 the respondent signed a document describing the claimant as a candidate and specifying standard hours of 40 hours a week and a period of work of 25 September 2017 to 28 April 2018. In his oral evidence the claimant referred to it as his original contract. In it, it is said that he is to work at the Trust and will report to the lead consultant. It says that a two week notice period applies to this booking and that accommodation will be paid by the agency. Under the particulars of the booking it is recorded that “our standard terms and conditions… apply to this booking.… As a standard benefit to our locums, Locum Reach includes holiday pay in your hourly rate, regardless of whether you qualify under Working Time Regulations. If you wish to be paid holiday pay only when entitled, please let us know and we will remove it from your hourly rate. The salary quoted on this confirmation includes your hourly base rate, WTR and NI (to cover your NI costs as an employee of your Limited Company). Your Limited Company will need to invoice a gross inclusive figure. It is the responsibility of the limited company to make any necessary deductions and payments.”[38]It appears from the timesheet dated 2 October 2017 (and, indeed, the other timesheets completed by the claimant) that the way in which hours were authorised to be paid was by the claimant completing a timesheet which was countersigned by the lead consultant at the Trust. On that example timesheet the claimant is described as an agency worker, and it is said that “getting the timesheets authorised is the agency worker’s responsibility”.[39]The draft contract is described as a “contract for services-limited company consultancy” and is said to be made between the respondent and Ekansh Ltd. It is a document which runs 29 pages and had not been signed by either party. It is said to constitute the entire agreement and that the person providing the consultancy services (referred to as the consultancy) “shall be deemed to have accepted this agreement by providing the Consultancy Services was submitting a Timesheet to the Employment Business, whichever occurs first” (para 2.2)[40]The draft contract also provides that it is agreed that the Consultancy (which in this case was either the claimant or his limited company) rather than the Employment Business (in this case the respondent) was responsible for paying any expenses, holiday pay, sick pay, pension contributions and other statutory payments. The defendant gave evidence which I accept that they have a different rate of pay for people who were not entering into this contract.[41]The payslip that I have been shown by the respondent is dated 29 March 2019, after the commencement of litigation, and shows that the claimant was paid for 280 hours and that the respondent has deducted tax and national insurance. In cross-examination, the claimant accepted that 280 hours was the correct figure and that he has now been paid in full. According to the respondent, the claimant had not provided them with a personal bank account number to enable them to pay him as an individual after deduction of tax and national insurance. Furthermore, the email from Mr Benchley of 12 April 2018 indicates that he was seeking a certificate of incorporation of the limited company and bank statement to prove that the claimant had incorporated the vehicle through which he wished to be paid. My conclusion is that the respondent was at all times willing to pay the claimant in a manner nominated by him but required certain formalities to be observed to protect their own position.[42]It is clear from the emails that there was a dispute about whether the Trust should pay for additional hours and the lead consultant said he would sign off for the claimant working from 9 AM till 5 PM but not until 7.30pm because the agreement was only for the shorter working day despite the fact that the lead consultant knew that the claimant was working longer hours than that.[43]The circumstances in which the work at the Trust came to an end were contested by the parties. On 11 October 2017 the claimant emailed Darren, an employee of the respondent, Saying that it was not possible for him to work in the current job and stating that he wished to “serve my notice from today” because there was “because of too much workload, complex patients and no support in terms of middle grade doctor”. Although the mail is addressed to Darren’s email, it is written as if directed to “Lee”. The claimant attaches a timesheet and says “I’ll appreciate if you can update me regarding the payment into my Ltd Company bank account as well as the next available job as I have been told that the current job is finishing on 03/11/17”. This supports the respondent’s case that the claimant wished to be paid through the limited company that he operated. The claimant’s case is that he was never given a notice of termination by the respondent however this shows that notice was given by the claimant. He argues that it was subsequently rescinded when he agreed to work for more than 2 weeks after 11 October. In relation to that, the respondent relies upon final notice having been given by representatives of the Trust.[44]On 12 October 2017 the lead consultant signed the revised timesheet and reported that the claimant had told him that day that he was handing in his notice. He asked the respondent what the notice period was. It appears that Darren, who was handling the matter, was on leave because he then wrote on 3 November 2017 to find out when the claimant was leaving the trust and received the response from the lead consultant on the same day that the claimant’s last day was that very day. It is clear that the trust had found another doctor long-term and that is the lead consultant’s explanation for not needing a replacement for the claimant from the respondent agency. An internal email within the Trust dated 13 October 2017 confirms both the end date and also that replacement had been found.[45]The claimant’s evidence was that he had withdrawn the notice he gave to the Trust on 11 October 2017 and he had been asked by the lead consultant to work in the Trust to cover until the arrival of the substantive consultant. It is for this reason that he argues he was not given two weeks’ notice in advance of the termination of his post in other words he argues that instead of his job finishing on 25 October 2017, it was extended to 3 November 2017 but no formal notice of the end of the contract was given. He argues that Darren would not have asked when his last day was in the email of 3 November 2017 had notice been served.[46]It is my clear finding that the contract was terminated by the claimant giving notice to the respondent that it was to come to an end. He did not specify a date but, in effect a longer notice period was subsequently agreed between him and the Trust. He continued to argue that his notice was retracted and there was no evidence from the respondent that he had been given two weeks’ notice but, in evidence, Mr Sutherland said, and I accept, that two people were letting the respondent know the contract was coming to an end, the claimant and the trust. The lead consultant was in the department and, in essence Mr Sutherland was saying that because that individual from the Trust worked in the workplace he was competent to terminate the contract between the claimant and the respondent. However in any event the respondent’s primary position is that the claimant resigned and that it was clear that he had accepted any change to his end date by not turning up for work thereafter. I find that that is how the contract came to an end.[47]The claimant also argued that because his original contract had been scheduled to last until April 2018 the Trust tried to find him alternative work. At times he seemed to think that he was entitled to claim not just two weeks’ notice from when he was told his employment would end but up until the end of the original period of work on the 26 April 2018. However he did accept that the job finished on 3 November 2017. He also accepted that he started another contract with the respondent on 17 November 2017 although it had not been in the same Trust. He had been unemployed for 14 days.[48]The claimant’s oral evidence about his employment status was that his “tax status was supposed to be determined by joint IR35 assessment as agreed by the R and end user and myself. So which did not happen”. He relied on emails which suggested that the Trust regarded it as being solely the responsibility of the agency. They also did not consider that the post would fall outside IR 35 which would entitle the doctor to be paid into his limited account without deduction of tax and national insurance.[49]The gist of his evidence was that he did not consider himself to be an employee of the respondent and his status was supposed to have been determined by a joint IR 35 assessment which had not taken place. In response to the question of whether he considered himself to be providing personal services he said “I was not working under any supervision as a consultant so I was.” That was the gist of his evidence, that employment status was something that was supposed to have been determined during the currency of the contract but wasn’t but that Judge Slater had decided that he would be deemed to be an employee. When asked whether, at the time, he was expecting to be paid into his current account of the limited company, he said there was confusion because the tax situation was unclear he accepted that the assessment in the pack was one he had carried out himself.[50]Dr Jain seemed to struggle to understand that I was seeking to determine whether he was an employee or a worker within the meaning of the Employment Rights Act 1996 and that that was distinct from the question of whether he could pay tax on a PAYE basis. The decision the parties make about the treatment of tax can inform a judgement about employment status but whether or not he was an employee and whether or not he was a worker is for me to determine based on the objective evidence of what was or must have been agreed between the parties at the time. In one sense, his evidence was that his status was not settled by the time the contract came to an end.[51]The claimant has made the point that he was not provided with starter pack or terms and conditions as he would have expected had he been an employee. Although he agreed that he had not provided the bank account details to the respondent he argued that he could still have been paid sooner had the respondent made proper and reasonable efforts to do so.[52]So far as the provision of receipts for expenses was concerned, his oral evidence was that he had had work related expenses: accommodation expense and cost of taxis between sites. He said that he had receives but because of all the circumstances of illness and other matters in his personal life over the past couple of years, he had not retrieved them and he understood that I would decide the case on the basis of the evidence before me at the hearing. He frankly accepted that he had prioritized other things and that it was his fault that he had come to the hearing without the necessarily paperwork to evidence his expenses.[53]The claimant has produced a statement of account showing charges of various sums some that appears actually to have been paid is £100 on 16 March 2018. The statement shows a number of “tenancy adjustments” and the total charges are said to have been £434.96. However, some credits have also apparently been put on the account and it is not possible to be sure what has been paid and what credited, or why. The statement also shows a debit balance of £69.78.[54]When asked about this document, the claimant explained that the statement of account that he had provided, because the respondent had stated that they needed something from the landlord to prove payment, was “clearly saying that I paid £434.96” which he had paid by credit card. However, he had not provided a copy of the credit card statement. He had not questioned the statement of account in detail and could not explain the credit entries or why there was a debit balance.[55]In the end the respondent’s evidence was that they thought that Dr Jain Was a worker. They explained that there was a preference with NHS jobs for them to be PAYE or paid through an umbrella company. However that was for the individual to decide. Mr Sutherland said that the reason that they had not paid into the claimant”s bank account sooner was that the claimant had explicitly refused to send them any details and said he was a limited company for months and years after it had been decided by the tribunal that he should be paid PAYE.
Conclusions
[56]The tax status of the claimant is not determinative his employment status which is to be judged according to employment law. It is not in the nature of the work of the locum consultant, as a professional man, that the agency which supplies into the Trust oversee his actual work. He reported to an individual at the place of work.[57]On the other hand there was an element of supervision and oversight of the administration with the provision of timesheets, countersigned by the lead consultant. The language used in those timesheets refers to an agency worker. I do not want to place too much emphasis on the word “worker” there because the documents are also neutral as to whether the individual is covered by the Working Time Regulations 1998. There is some level of ongoing obligation between the parties in that there is a two week notice period applicable to the booking.[58]One thing I should weigh up when considering the evidence in the round that the draft contract is headed contract for services. On the other hand, it was the obligation of the claimant under the contract were he bound by the terms to provide insurance. Furthermore by clause 8.2 if those terms apply the notice period is not enforceable. The two parties to the contract were to be the respondent and the incorporated vehicle by which the claimant was to provide his services. It does not seem to me that this contract was intended to govern the relations between the claimant personally and the respondent. However, although the contract was not the terms applicable in full, it does inform my assessment of the nature of the relations between the parties.[59]It may have been the intention of the parties that the claimant would provide services through a limited company but they never actually put that agreement into practice. The agreement that did operate for the short period of time that the claimant worked at the Royal Oldham was directly between the claimant and the respondent but contained the obligations as to notice period and oversight which were referred to in the draft contract for services and the document setting out the terms on which the claimant was booked.[60]It seems to me therefore that the claimant was a worker within the meaning of section 230(3) of the Employment Rights Act 1996 because he worked under a contract which can be implied from the above by which he undertook to “perform personally any work or services for another party to the contract whose status is not by virtue of the contract that the client or customer of any profession or business undertaking carried on by the individual.” It seems to me to be artificial to describe the respondent as being a client or customer of the claimant. If there was a client or customer of the claimant his professional capacity it was the Trust. I am therefore persuaded that in the somewhat unusual circumstances of this short engagement the claimant was a worker. He was not, however, an employee under section 230 (3) (a) because of the absence of control of the way in which the claimant carried out his work.[61]Given that finding, the Employment Tribunal does not have jurisdiction to consider the complaints made under Article 3 of the Employment Tribunal Extension of Jurisdiction (England & Wales) 1994 for alleged breach of contract because that is only available to an employee. The claims in respect of unpaid expenses are breach of contract claim and, although it appears that the intention was for the agency to reimburse expenses paid for, accommodation and the claimant has provided some evidence that he paid a hundred pounds and owes a further £69.78 towards accommodation costs, as a worker he cannot bring a claim for breach of contract in the employment tribunal.[62]The evidence of Mr Sutherland which I accept was that the respondent pays expenses on proof of them having been actually incurred such proof being obtained by way of a receipt. The statement of account was only provided on the morning of the hearing and therefore it seems to me that the that any sums claimed as expenses have not been demonstrated to be due.[63]It was clearly reasonably practicable to present the claim for notice pay at the time of the original complaint. Taking into account the effects of early conciliation upon the time limit, time for presentation of a complaint based upon dismissal expired on 25 March 2018 and the application to amend was made 11 months late on 28 February 2019. The employment tribunal therefore has no jurisdiction to consider a complaint present the notice pay. If presented as a breach of contract claim it would fail for lack of jurisdiction because the claimant is not an employee as I have set out above.[64]If I am wrong about the Tribunal having jurisdiction, I would in any event have dismissed the claim because it is clear that the contract came to an end because notice was served by the claimant on 11 October 2017 to the respondent on 12 October 2017 to the Trust and then the notice period was extended by consent to 3 November 2017. The fact that the respondent does not appear to have confirmed in writing that final date does not mean that they have breached any obligation to serve notice.[65]I therefore turned to considering whether there was an unauthorised deduction from wages in respect of the failure to pay the claimant sums due in respect of his wages at the end of the contract in circumstances where he had not provided the respondent with bank details of the account into which you wish them to pay. I accept his argument that they could have made payment by personal cheque although, since he wished it to be payable to his company, I doubt that would have satisfied him and it is an example of the claimant saying now something contrary to the position which he took at the time. I am therefore persuaded that there was an unauthorised deduction from wages by failure to pay him on time but he has now received that money.[66]The issue raised on the list of issues by Judge Hyam is whether the claimant suffered any financial loss which was attributable to the failure so that, in the words of section 24(2) of the ERA, it is “appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of”.[67]In his schedule of loss the claimant refers to expenses incurred due to unlawful deduction of wages in the sum of £520.31. However he does not explain how this figure is achieved at and has not evidenced what the expenses are. Furthermore, in circumstances where the respondent was at all times willing to pay the wages and when payment by posting a cheque to the claimant would not have resolved the question of the identity of the individual to whom the cheque should be made payable, it seems to me that it is not appropriate to order any compensation to the claimant because at all times it lay within its own hands to take steps to ensure that he was paid.[68]I therefore dismissed the claims. I confirm that this is my Reserved Judgment with reasons in case number 2405398/2018 and that I have approved the Judgment for promulgation.