Mr J Townsend v Corporation of Trinity House of Deptford Strond: 2405849/2022
EMPLOYMENT TRIBUNALS
Case No 2405849/2022
Between
Mr J TownsendClaimantCorporation of Trinity House of Deptford StrondRespondent
Before
Employment Judge Leach (sitting alone).Mr Frater (instructed by Solicitor) for claimantMs. Gillie (instructed by Counsel) for respondentDate 13 December 2024
REASONS
Introduction
[1]This was a preliminary hearing. It was listed to consider and determine the respondents application for the whole claim to be struck out under Rule 37(1) of the Employment Tribunal Rules of Procedure 2013 (Rules) on the grounds that the claim has no reasonable prospects of success. The application was made on 14 February 2024.[3]Both parties provided me with skeleton arguments and added to these with oral submissions today. B. The Application and the claimant’s resistance to the application.[4]The respondent’s application is made on the basis that the contractual relationship between the parties has already been considered by the High Court who decided that it was not an employment relationship. Given this finding by a senior court, (a finding that binds the Employment Tribunal) the continuation of these proceedings by the claimant is either scandalous (as an abuse of process) and/or have no reasonable prospects of success.[5]The claimant’s response to the application is based on a definition of employment relationship. Whilst the High Court decided that the contractual relationship between the parties was not an employment relationship, the claimant says it applied the definition of employment at section 230(2) Employment Rights Act 1996 (ERA). It did not consider whether there was a wider “worker” relationship – defined at section 230(3) ERA. As such the High Court did not consider whether the definition of employment under the Equality Act 2010 (section 83(2)) applied; that definition effectively encompassing workers as well as employees. C. Relevant Law. Strike out[6]The House of Lords Judgment in Anyanwu v South Bank Students Union (2001 UKHL 14) (Anwanyu) contains important guidance and instruction to Employment Judges considering strike out applications in discrimination cases. I note the guidance at paragraph 37 of the judgment: that discrimination complaints should as a general rule be decided only after hearing the evidence. I also note the comments of Lord Hope at paragraph 39 – “that the time and resources of the Employment Tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail”.[7]I also note the more recent Judgment of the Employment Appeal Tribunal in Mr D Cox v Adecco and others UKEAT/0339/19 and the guidance and instruction by the EAT for Employment Tribunals. The judgment includes commentary that no-one gains by truly hopeless cases being pursued to a hearing. The judgment also notes that if the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate. Superior Court of Record and issue estoppel[8]Mr Frater did not dispute that judgments of High Court Judges are binding on the Employment Tribunal. For completeness I note the following authorities provided by Mr Gillie. Willers v Gubay [2016]UKSC 44; Howard de Walden Estates Limited v. Aggio [2008]Ch 26[9]Mr Gillie referred to Virgin Atlantic Airways Limited v. Zodiac Seats UK Limited [2013] UKSC 46 and Arnold v. National Westminster Bank plc [1991] 2 AC 93 relating to Issue Estoppel. I note that these make clear that issue estoppel applies to a finding by a superior court on a particular issue which is relevant in 2 (or more) sets of proceedings, even where those proceedings involve different causes of actions. D. The Judgment of the High Court in claim KB-2022-004995[10]This is a summary judgment striking out complaints that the claimant made against the respondent (first defendant in the High Court claim) and against Solent University (second defendant). The application for summary judgment was heard and decided by a Deputy High Court Judge following a hearing on 8 December 2023.[11]The High Court claim was for damages for personal injuries, harassment and disability discrimination that the claimant says he suffered during his training as a Merchant Navy cadet and the employment that the claimant says he had with the respondent.[12]In its defence to the High Court claim (and in these Employment Tribunal proceedings) the respondent denied that the claimant was ever employed by the respondent. The respondent is a charity providing funding to some students undertaking training. The claimant was one of those students, receiving the benefit of a bursary.[13]A key issue in the summary judgment application was whether the claimant had a real prospect of establishing an employment relationship. Judgment on that issue is at paragraphs 45 to 71 of the Judgment.[14]Paragraphs 64-70 are of particular relevance to the application before me. The conclusions in these paragraphs include conclusions about the terms of a written agreement between the claimant and respondent. The conclusions include the following:a. “The agreement does not require the claimant to provide any work or services to the first defendant.” (para 65)b. “To the extent that there are references to “work” in the agreement they are plainly part of the seafaring stage of the training agreement during which, as the MLC guidance makes clear, the trainee would be engaged on a ship but any such work would be undertaken as a trainee and not as an employee of the first defendant.” (66)c. “There was no mutuality of obligation, in the sense there was no benefit being received by the first defendant the claimant was training for his own benefit so that he might become qualified as a cadet.” (69)d. “Standing back and looking at the relationship between the parties under this agreement as a whole I consider it plainly a training and bursary agreement under which the claimant was supported by the first defendant as part of its charitable objects to complete the two-part training required to become a Merchant Navy cadet. For all these reasons I have concluded that the claimant has no real prospect of succeeding on his claim against the first respondent for damages arising out of any breach of a common law or statutory duty as an employer, and there are no compelling reasons why that part of his claim should be disposed on at a trial.” (70)[15]The claimant applied to appeal that decision. The Court of Appeal dismissed the claimant’s application to appeal. E. Submissions[16]I was provided with 2 detailed written documents. These helped inform me about the relevant law, about the High Court action and the chronology of proceedings. The following are brief summaries of the submissions on the respondent’s strike out judgment. Mr Gilley’s submissions.[17]In order to bring this claim in the Employment Tribunal, the claimant will need to show that he was an employee under the Equality Act. The claimant appears to have recast his position from one of employee to one of worker but that makes no difference having regard to the findings made by the High Court.[18]The High Court made findings that the respondent was not the claimant’s employer. That finding must bind the Employment Tribunal. A decision about the meaning of a contract is in part a decision on the facts and in part a decision on the law. The doctrines of issue estoppel and res judicata apply to the High Court’s findings of fact. The Employment Tribunal is bound by them. The legal construction of the contract is binding precent on the Employment Tribunal.[19]The findings of the High Court therefore entirely preclude any relitigating of the employment status issue. Mr Frater’s submissions[20]The claimant’s resistance to the application is centred on the submission that the High Court determined that the claimant was not an employee of the respondent but did not consider the question of whether the claimant was a worker.[21]The submissions refer me to the definitions at section 230 ERA, noting differences in the definitions of employee and worker. Mr Frater then notes ( a point that is not disputed by the respondent – or by me) that the definition of employment at section 83(2) is effectively the same as the worker relationship at section 230(3) ERA.[22]Mr Frater’s submissions also include the following:-a. That there is no reference in the High Court Judgment to section 83(2) Equality Act 2010.b. There is no reference to the leading authorities on worker status, including the Supreme Court decision in Bates Van Winkelhof v. Clyde & Co [2014] UKSC 32. Instead the Judgment appears to focus on leading cases concerning employment status such as ReadyMixed Concrete (South East) Limited v. Minister f Pensions and National Insurance [1968] 1 All Er 433. He noted particularly the absence of any discussion about the right of substitution, a topic which is vital in the definition of worker.c. The Deputy High Court Judge concluded the agreement was a training agreement and that is synonymous with an apprenticeship in terms of worker status.[23]The claimant’s submissions suppose that the High Court applied a “narrow” definition of employment – one that is consistent with the definition of employee at section 230(1) ERA. I asked Mr Frater whether he know what definition was applied by the High Court and, to his credit, Mr Frater replied that he did not and that he was not at the hearing of the summary judgment application.[24]In reply on this point, Mr Gillie referred to Charlesworth and Percy on Negligence at paragraph 13-116, noting particularly the effect of the Framework Directive 89/391 on widening and clarifying the definition of employment to statutory health and safety protections. “Whereas the domestic law definition of “employee” was formerly critical, the Framework Directive applies to workers (any person employed by an employer save for domestic servants) and employers (any person “who has an employment relationship with the worker and has responsibility for the undertaking and/or establishment”). Although superficially the definition may appear to be restricted to those having “employee” status, the duty in the Directive is directed to workers “in every aspect related to work” and encompasses no less a class than was contemplated by the Court of Appeal in Lane v Shire Roofing Co (Oxford) Ltd. Where their peculiar characteristics inevitably conflict with the provisions of the Framework Directive, exceptions are provided in respect of public service and civil protection activities but otherwise they extend a significant measure of statutory protection to, for example, the police, who were largely left without statutory protection under the old legislation. Discussions and decision[25]I am satisfied that the reasonable prospects of success in this case are not ones that will turn on the findings of fact by the Tribunal. That is because crucial findings of fact have already been made and are set out in a Judgment of the High Court. I am satisfied therefore that, having taken account of the caution expressed in Anwanyu, Cox and elsewhere about striking out discrimination complaints, I can consider whether the findings already made are such that there are no reasonable prospects of the claimant’s claim succeeding.[26]The claimant will have to show that his complaints of discrimination in these Tribunal proceedings fall within Part 5 of the Equality Act (Employment), and the relevant definition of “employment” is at section 83(2) of that Act. I do not agree with Mr Frater’s submissions that the only relationship that was considered and that the Judge found not to exist was the narrow definition of “employee” under section 230(1) of the Employment Rights Act 1996.[27]That is obvious when reading the conclusions set out in the High Court Judgment at paragraphs 64 and 65. The wording set out in there, particularly the extract “the agreement does not require the claimant to provide any work or services to the first defendant” mirrors the wording at section 230(3)(b) of the ERA which sets out the definition of a “worker” and extends the definition of worker beyond the “narrow” definition of employee within the ERA.[28]Noting these findings of the high Court, I am concerned that some of Mr Frater’s submissions effectively ask me to criticize the judgment; particularly those submissions which ask me to note the previous authorities that were or were not mentioned in the judgment. It is simply not my place to do that.[29]I do not accept Mr Frater’s submissions that, in identifying the contract as an agreement for training, the High Court somehow found an apprenticeship relationship between claimant and respondent. Firstly I note that the term “apprenticeship” at section 230 ERA falls within the definition of a contract of employment at section 230(1); that being the definition that the claimant accepts was applied. Secondly, the High Court decided that it was not a contract requiring the claimant to provide any work or services at all to the respondent. That is why it cannot fit a definition of employment.[30]I then turn to consider what the effect of that Judgment has on these proceedings. A High Court Judge has made a finding that the claimant did not have a contract of employment with the respondent, and within the same conclusion set out wording that makes clear that the reference to employment for the purposes of that Judgment was the wider one, applicable to the Equality Act 2010.[31]I summarise the position as follows:-a. The parties cannot ask another jurisdiction (in this case the Employment Tribunal) to make findings of fact that are different from the findings that have been made by the High Court. The res judicata doctrine stops that.b. The Employment Tribunal is bound by the findings of the High Court. It is a senior jurisdiction. The High Court has applied facts to a legal definition (“what is a contract of employment?”) and made a finding. That finding has to be accepted by the Employment Tribunal.[32]If I decided not to strike out this claim it would proceed to a final hearing and be bound to fail. That is why, having regard to the instructions that I have already referred to by the House of Lords and the Employment Appeal Tribunal, I should strike out the claim.[1]The claimant has applied for reconsideration of the Judgment. The application was made outside of the time limits set by Rule 69 of the Employment Tribunal Procedure Rules 2024 (Rules). Applying Rule 5(7) of the Rules, I have decided to exercise discretion and extend time to allow consideration of the claimant’s application.[2]I have undertaken preliminary consideration of the application.[3]The grounds for the application are in an email dated 21 January 2025 from the claimant. It may not have been copied to the respondent in accordance with the requirements in Rule 90 of the Rules. I have directed that a copy be sent to the respondent’s solicitors.
The Law
[4]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 68).[5]Rule 70(2) empowers an Employment Judge to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[6]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[7]In common with all powers under the Rules, preliminary consideration under rule 70(2) must be conducted in accordance with the overriding objective which appears in rule 3, namely, to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. The Application[8]The application is helpfully set out, identifying 3 issues or themes which (individually and collectively) are put forward as grounds for reconsideration. I have considered each of these 3 issues in turn. Lack of Written or Oral Consent for Withdrawal.[9]It is accepted (and was during the hearing) that the claimant had not withdrawn his complaints that are the subject of this claim. The complaints were dismissed under rule 37 of the Employment Tribunal Procedure Rules 2013 (then applicable). They were not withdrawn.[10]There was a discussion in the course of that hearing about paragraph 38 of the High Court Judgment referred to. Paragraph 38 starts with the following wording: It was confirmed by the claimant in his replies that he is withdrawing his claims under the Equality Act 2010 against both defendants. It was also correctly accepted by his counsel, Mr McKie, that such claims are both time-barred and not within the jurisdiction of the High Court, and that he was not opposing those claims being struck out[11]However this paragraph had no influence over my decision. Following discussion, it was recognised that the withdrawal of Equality Act claims brought in the High Court, was not relevant to the complaints in the employment tribunal. Impact on Access to Justice[12]Under this heading, the claimant expresses concern that the handling of his claims has affectively denied him access to justice. He also notes “This is particularly relevant as my claims encompass non employment related issues ( eg in education and public services) that were not adequately addressed.”[13]These points are not relevant to the Employment Tribunal claim that has been struck out. Employment Tribunals do not have jurisdiction to hear non employment related claims in education and public services. The decision to strike out his employment tribunal claim does not, in itself, deny the claimant access to justice in other jurisdictions. Disabilities and Procedural Fairness.[14]The claimant was legally represented at the hearing on 13 December 2024. No reasonable adjustments were requested. However, allowances were made for the claimant, particularly:-a. An opportunity was provided for the claimant and his solicitor to speak privately when the claimant, part way through the hearing, started addressing the Tribunal directly on points that did not appear to be relevant to the issues.b. The claimant did not attend the end of the hearing. The respondent made an application for costs. a process to allow the claimant to consider and provide a reply to the respondent’s costs application was discussed and agreed with the claimant’s solicitor, taking account of his non attendance. Conclusion Having considered all the points made by the claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The application for reconsideration is refused.