Ms Y Zalzala v Fallowfield Library & Community Resource Centre and others: 2406713/2022 and 2408510/2022
EMPLOYMENT TRIBUNALS
Case No 2406713/2022, 2408510/2022
Between
Ms Y ZalzalaClaimantFallowfield Library & Community Resource Centre (1) One Manchester Limited (2) Manchester City Council (3)Respondent
Before
Employment Judge Phil AllenIn person for claimantDate 27 June 2023
JUDGMENT
[1]The claimant’s claims for age discrimination against all three respondents are dismissed on withdrawal;[2]The claimant’s claims for unfair dismissal against the second respondent (One Manchester Limited) and the third respondent (Manchester City Council) are struck out under Rule 37(1)(a) of the Employment Tribunals rules of procedure, because they have no reasonable prospect of success;[3]The claimant’s claims against the second respondent (One Manchester Limited) that she was treated less favourably because of religion and belief (direct discrimination) and that she was harassed on grounds of religion or belief by something said by Sue to her on 17 October 2019 are struck out under Rule 37(1)(a) of the Employment Tribunals rules of procedure, because they have no reasonable prospect of success; and[4]The claimant’s other claims against the second and third respondent are not struck out.
REASONS
[1]At a preliminary hearing held at Manchester Employment Tribunal (in person) on 25 January 2023, the second and third respondents (One Manchester Limited and Manchester City Council) applied to strike out the claimant’s claims on the basis that they had no reasonable prospect of success.[2]At the hearing, the claims being brought were clarified, as is recorded in a separate case management order.[3]The second respondent’s counsel made submissions that the claims against the second respondent (One Manchester Limited) should be struck out. The third respondent’s representative adopted those submissions on behalf of the third respondent (Manchester City Council). The claimant also made submissions about why her claims should not be struck out.[4]I informed the parties of my decision in the strike out applications during the hearing. However, as there was only limited time available, I did not provide the parties with the reasons for my decision at the hearing. This document records the decisions and the reasons for them.
The claims
[5]The claimant undertook the role of library volunteer at The Place from 16 February 2014. The Trustees of the first respondent (Fallowfield Library & Community Resource Centre) made a decision about that volunteering on 3 May 2022. The claimant was informed about that decision on 5 May 2022.[6]The claimant had entered two claims at the Employment Tribunal, which had been joined.[7]The claimant’s first claim was entered on 31 August 2022. The claimant named all three respondents on the claim form entered. The claimant provided one ACAS Early Conciliation number. That number was for a certificate which named the first respondent (Fallowfield Library & Community Resource Centre) and recorded that Early Conciliation had been undertaken between 29 and 31 August 2022. The claim against the first respondent (Fallowfield Library & Community Resource Centre) was accepted by the Tribunal. The claims against the second and third respondents (One Manchester Limited and Manchester City Council) were rejected because of the absence of any ACAS Early Conciliation certificates for those organisations.[8]The claimant’s second claim was entered on 21 October 2022. The claimant again named all three respondents on the claim form. For the first respondent (Fallowfield Library & Community Resource Centre), the claimant relied upon the same ACAS Early Conciliation certificate number as she had for the previous claim. For each of the second respondent (One Manchester Limited) and the third respondent (Manchester City Council) numbers were provided for ACAS Early Conciliation certificates which named that organisation and which recorded a period of Early Conciliation from 17-19 October 2022. Age discrimination[9]In her first claim the claimant had neither ticked the box to show that she was alleging age discrimination, nor did the grounds of claim include anything which asserted age discrimination. In the second claim, the claimant had ticked the age discrimination box. The claimant had, accordingly, brought an age discrimination claim against all three respondents. At the preliminary hearing the claimant could not recall why she had ticked that box on the second claim form. She did not advance any argument that she had been discriminated against because of her age or suffered harassment related to her age.[10]When asked, the claimant stated that she wished to withdraw her claims for age discrimination, and she accepted that the age discrimination claims would be dismissed on withdrawal.
The Law
[11]I have the power to strike out the claims or parts of them, under rule 37(1)(b) of the Employment Tribunal Rules of Procedure 2013. To do so, I must be satisfied that the claim (or the part of it) has no reasonable prospect of success. The respondent needs to persuade me to exercise my discretion to strike out the complaint or part of it. Striking out needs to be a proportionate sanction.[12]It is relatively rare for claims (or parts of them) to be struck out in the Employment Tribunal. The requirement set down in the rules that the claim must be determined to have no reasonable prospect of success, means that it will be relatively unusual for the requirement to be met. However, the general proposition is that no-one gains by truly hopeless cases being pursued to a hearing. Strike out is not prohibited in discrimination or harassment cases, but extra special care must be taken in such cases as it is very rarely appropriate. If the question of whether a claim has a reasonable prospect of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate. I must take the Claimant’s case at its highest. What I must do has been set out in decisions in cases such as Cox v Adecco UKEAT/0339/19 and Mechkarov v Citibank NA [2016] ICR 1121 (a case upon which the second respondent’s representative relied).[13]In his written submissions and in his oral arguments, the second respondent’s representative addressed various matters which I will not repeat in this decision, albeit that I considered all that he said (in writing and orally). He addressed in detail the arguments around the claimant’s status and the legal framework for volunteers (citing Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612, Melhuish v Redbridge Citizens Advice Bureau [2005] IRLR 419, South East Sheffield Citizens Advice Bureau v Grayson [2004] ICR 1138 and X v Mid Sussex Citizens Advice Bureau [2013] IRLR 146). He also made submissions on the law as it applied to strike out applications and deposit orders (citing Mechkarov v Citibank NA, Ahir v British Airways [2017] EWCA Civ 1392 and Hemdan v Ishmail [2017] ICR 486). Applying the law to this case[14]For the claims to succeed, the Employment Tribunal must have jurisdiction to determine those claims. That means that the claims must have been entered in the time required. As the claimant was informed about the decision regarding her volunteering on 5 May 2022, to comply with the primary time limit of three months, the claim must have been entered (or ACAS early conciliation) commenced by 5 August 2022. On that basis, all of the claims against all of the respondents were entered outside the primary time limit for the claims.[15]The test for an extension of time in a discrimination or harassment claim is whether or not the claim was entered in such other period as the Employment Tribunal thinks is just and equitable. That is a test in which all the circumstances of the case are considered, including the balance of prejudice between the parties. It cannot be said that the claimant has no reasonable prospect of success under the just and equitable test, taking her case at its highest.[16]The test for the unfair dismissal claims is, however, a more rigid and strict test. The claim can only be accepted outside the primary time limit if it was not reasonably practicable to have entered the claim in time. The claim must also have been entered in such further period as the Tribunal considers reasonable.[17]The claimant relied upon a period of ill health due to her eyes as explaining why the claim was not entered in time. The operation on her eyes took place in March 2022, which may suggest that the claimant may not find it easy to establish that meant that it was not reasonably practicable to enter her claims in the time required, but that will be a matter to be determined on the evidence. Irrespective of whether or not that explains the failure to enter the claim in the primary time limit, that cannot explain the failure to enter the claims for unfair dismissal against the second and third respondents (One Manchester Limited and Manchester City Council) on or after 31 August 2022, because the claimant was able to present her claim against the first respondent (Fallowfield Library & Community Resource Centre) at the Tribunal on that date. The claims against the second and third respondents (One Manchester Limited and Manchester City Council) were not entered at the Tribunal until 21 October 2022 (almost two months later).[18]In those circumstances, there is no reasonable prospect of the claimant successfully arguing that both it was not reasonably practicable for her to have entered her claims for unfair dismissal against the second and third respondent (One Manchester Limited and Manchester City Council) in the time required, and that the claims were entered in such further period as a Tribunal will consider reasonable. The claims for unfair dismissal against the first and second respondent (One Manchester Limited and Manchester City Council) are accordingly struck out.[19]As is explained below, there is some complexity regarding the relationship between the three respondents and whether the second and/or third respondent (One Manchester Limited and/or Manchester City Council) might be responsible for (that is vicariously liable for) the actions of those at The Place. However, for one of the factual matters relied upon in claims against the second respondent (One Manchester Limited) for allegations that the claimant was treated less favourably because of religion and belief (direct discrimination) and that she was harassed on grounds of religion or belief, the claimant relies upon something said by Sue to the claimant on 17 October 2019. The claimant asserts that Sue was employed by the third respondent (Manchester City Council). There is no reasonable prospect of the claimant succeeding in an allegation that the second respondent (One Manchester Ltd) is vicariously liable for the actions of an employee of the third respondent (Manchester City Council). Those claims are also struck out against the second respondent (One Manchester Ltd) because they have no reasonable prospect of success[20]Save for the claims already addressed, I was not satisfied that the claims brought had no reasonable prospect of success, taking the claims at their highest and taking account of the extra special care which must be taken in claims for discrimination and harassment. Whilst the second respondent’s representative put forward various matters in support of his contention that the claims against the second respondent (One Manchester Limited) had no reasonable prospect of success, I did not find that the prospects of success were that low. Accordingly, the applications made were not successful (for the other claims) and the claimant’s other claims against the second and third respondents (One Manchester Limited and Manchester City Council) are not struck out.[21]There is a separate deposit order which addressed the respondents’ arguments that the claims against them had little reasonable prospect of success.[22]The second respondent’s representative emphasised the legal status requirements for the claimant to be able to pursue her claims. She must be held to be an employee of the relevant respondent as defined by section 230(1) of the Employment Rights Act 1996 (in order for her to be able to pursue her unfair dismissal claims) and as defined by section 83 of the Equality Act 2010 (in order to be able to pursue her discrimination claims). The latter is a wider test than the former. He relied upon authorities (South East Sheffield Citizens Advice Bureau v Grayson and X v Mid Sussex Citizens Advice Bureau) in which it was established that an unpaid volunteer was found not to fit within these categories, and acknowledged that a key question was whether the agreement between the volunteer and the relevant respondent imposed any contractual obligations on the volunteer to do work in exchange for consideration.[23]In one of the documents which she had prepared, the claimant acknowledged a Supreme Court decision and accepted that decided that volunteers were not employees (I have taken that as being a reference to X v Mid Sussex Citizens Advice Bureau). She cited the fact that a volunteer might be able to pursue claims under the Health and Safety at Work etc Act 1974 and the Protection from Harassment Act 1997, but I explained to her that did not assist her with the claims before me as I did not have jurisdiction to consider claims under those Acts. The claimant did however assert that she had entered into an agreement which named the second respondent (One Manchester Limited) and had been prepared by an employee of the second respondent. She asserted that she was employed by all of the respondents. She contended that she would be able to differentiate her circumstances from those addressed in the Supreme Court case, albeit she had not read that case to know how her circumstances differed.[24]Status cases are all fact-sensitive. The Tribunal who conducts the relevant hearing, will need to consider the circumstances and determine whether the claimant and the role she fulfilled satisfied the definitions in either (or both) of the two Acts. The volunteer cases do not determine that a volunteer can never satisfy the relevant definitions. I cannot discount the possibility that the claimant will be able to prove that the circumstances and any agreement(s) which applied to her engagement might mean that she meets the requirements under either or both of the Employment Rights Act 1996 and/or the Equality Act 2010. She is unrepresented. I have therefore concluded that it cannot be said that she has no reasonable prospect of success in establishing that she is employed under one or both of the definitions, taking her case at its highest.[25]A secondary issue is whether the claimant will be able to establish that she is engaged as required by the second or third respondent (One Manchester Limited and Manchester City Council), rather than the first respondent (Fallowfield Library & Community Resource Centre). It would appear to be the case that it is more likely that the relevant engagement existed between the first respondent (Fallowfield Library & Community Resource Centre) and the claimant, than with the second or third respondents (One Manchester Limited or Manchester City Council). That is certainly the respondents’ position (albeit they all assert the claimant was not employed by any of them). However, the complexity of the interrelation between the first, second and third respondents make clear determinations without evidence, difficult. Indeed, the very fact that the second respondent’s representative wished to refer me to details of documents, highlighted that the issue is of some complexity.[26]I also noted from the clarification of the claims at the hearing that one of the alleged harassers was an employee of the second respondent (One Manchester Limited), or at least was contended to be. One was also an employee of the third respondent (Manchester City Council) or was contended to be. Mr Willis had also been an employee of the second respondent (One Manchester Limited) and there may need to be some consideration of the different roles he fulfilled for different organisations and for whom he was acting on each relevant occasion (and therefore which of the respondents was responsible/potentially liable for his actions). The position is not clear cut. The claimant will have challenges in establishing that the second or third respondent (One Manchester Limited or Manchester City Council) are responsible for (that is vicariously liable for) any of the matters relied upon (save for where the identified discriminator/harasser is employed by that respondent) but it is not sufficiently clear to determine that the claim has no reasonable prospect of success (with the exception of the one set of facts relied upon for the second respondent - One Manchester Limited).[27]Taking the claimant’s case at its highest, I do not think that it can be established that she has no reasonable prospect of successfully identifying that she had one of the relevant relationships at any time with the second or third respondent (One Manchester Limited or Manchester City Council) and/or that either of them were vicariously liable for some of the matters alleged.[28]The claimant also has some challenges in establishing that: the impairment upon which she relies was long-term and therefore meets the definition of disability; and/or that being a Liberal Democrat and not being a member of the Labour party, falls within the meaning of religion or belief as a protected characteristic under the Equality Act 2010. I must be mindful that the claimant has not been professionally represented at the preliminary hearing. I have decided that it cannot be said that the challenges are such that the claimant has no reasonable prospect of success on either of those issues.
The Law
[1]The claimant did not have a contract of service (pursuant to s.230 of the Employment Rights Act 1996) with the first respondent.[2]The claimant did not have a contract personally to do work (pursuant to s.83 of the Equality Act 2010) with either the first, second or third respondent.[3]The Employment Tribunal does not have jurisdiction over any of the claims that the claimant is seeking to bring.[4]The claimant’s claims are dismissed in their entirety.[5]The final merits hearing dates of 27, 28 and 29 August 2023 are vacated.
INTRODUCTION
[6]Oral judgment was handed down to the parties at the end of the hearing on 27 June 2023. The claimant has since made a request for written reasons. These are those written reasons.[7]This case came before Employment Judge Allen for a Case Management Preliminary Hearing on 25 January 2023. Employment Judge Allen, after having considered and determined various applications, recorded the live claims being brought by the claimant as being an unfair dismissal complaint against the first respondent, and complaints of discrimination against all three respondents. However, he also noted that the employment status of the claimant was also an issue that needed to be determined. It is on the question of the claimant’s employment status that this case was listed for today’s public preliminary hearing.[8]To assist me in today’s hearing, I was provided with an electronic file of documents that ran to 376 electronic pages. I heard evidence from the claimant, from Mr Willis (who had held the position of Partnership and Development Manager with the first respondent during the claimant’s engagement), and from Ms Taylor, who was employed by the second respondent.
LIST OF ISSUES
[9]The issues for me to determine today were clearly recorded by Employment Judge Allen following the Preliminary Hearing on 25 January 2023. These were: “The preliminary issues to be determined are:(i) Was the claimant an employee within the meaning of section 230(1) of the Employment Rights Act 1996 of:a. Fallowfield Library & Community Resource Centre (the first respondent);(ii) Was the claimant an employee within the meaning of section 83(2)(a) of the Equality Act 2010 of: a. Fallowfield Library & Community Resource Centre (the first respondent);b. One Manchester Limited (the second respondent); and/orc. Manchester City Council (the third respondent).(iii) Does the Tribunal have jurisdiction to consider all or any of the claimant’s claims? This arises because the date when the claimant was informed about the decision regarding her being a volunteer was 5 May 2022. The date when a claim should have been entered or ACAS Early Conciliation commenced would appear to be 4 August 2022. The first claim against the first respondent was entered on 31 August 2022 (after ACAS Early Conciliation between 29 and 31 August 2022). The claim against all three respondents (being the first claim against the second and third respondents - One Manchester Limited and Manchester City Council) was entered on 21 October 2022 (after ACAS Early Conciliation with the second and third respondents between the 17-19 October 2022). The Tribunal will need to determine if the claims were entered in the time required. It may also involve consideration of: whether it was reasonably practicable for the claimant to enter her claims in time and, if not, whether they were entered in such further period as the Tribunal considers reasonable (for the unfair dismissal claim against the first respondent); and/or whether it is just and equitable to extend time (for the discrimination and harassment claims against all three respondents).(iv) Whether the claimant’s eye condition amounted to a disability at the relevant time, as defined by section 6 of the Equality Act 2010? The claimant relies upon a severe eye injury for which she was in hospital for surgery in 2022 as being a disability. She contends that she lost sight in her left eye completely and was then operated on under a general anaesthetic.”[10]It was agreed with the parties that I would determine the employment status question first. And this was because this impacted upon the entirety of the claims. If the tribunal was found to have jurisdiction to hear the claim or claims due to the claimant’s employment status, then I would go on to determine disability. However, if I was to find that the tribunal did not have jurisdiction to hear any of the claimant’s claim by virtue of her employment status, then her claims would be dismissed accordingly.
LAW
[11]Section 230 of the Employment Rights Act 1996 explains:(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…[12]Section 83 of the Equality Act 2010 states: (2) “Employment” means— (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work.[13]Helpfully, I was taken to South East Sheffield Citizens Advice Bureau v Grayson [2004] ICR 1138, and in particular paragraphs 14-20 of that decision, where in determining whether contractual obligations were being placed on a volunteer to do work, the EAT considered the following factors: whether the language used was of reasonable expectation or the language of contractual obligation, whether it imposed minimum commitment, whether there were sanctions for not honouring the commitment, what the notice position was in respect of holidays, whether there was payment for services, and the position in respect of expenses, insurance indemnity and training.[14]At paragraph 21 of Grayson it was held that “We cannot accept that the volunteer agreement imposed any such obligation. Like many similar charitable organisations, similarly dependent on the services of volunteers, the bureau provides training for its volunteers and expects of them in return a commitment to work for it, but the work expected of them is expressed to be voluntary, it is in fact unpaid and all that the volunteer agreement purports to do is to set out the bureau’s expectations of its volunteers. In our view, it is open to such a volunteer at any point, either with or without notice, to withdraw his or her services from the bureau, in which event we consider that the bureau would have no contractual remedy against him. We find that it follows that the advisers and other volunteers were not employed by the bureau within the meaning of the definition in section 68 of the 1995 Act.” CLOSING SUBMISSIONS[15]I benefitted from written skeleton arguments from Counsel that appeared on both the second and third respondent respectively. And I heard oral closing argument from all parties involved. Although I do not repeat these submissions here, they were considered carefully in reaching the decision that I made. FINDINGS OF FACT I make the following findings of fact based on the balance of probability from the evidence I have read, seen, and heard. Where there is reference to certain aspects of the evidence that have assisted me in making my findings of fact this is not indicative that no other evidence has been considered. My 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 I made the findings that I did. I do not make findings in relation to all matters in dispute but only on matters that I considered relevant to deciding on the issues currently before me.
FINDINGS OF FACT
[16]In 2014, the third respondent was making cuts to local services, this included to the Fallowfield library. A charitable trust, with independent legal personality, was to be set up to run it, using volunteers.[17]The second respondent assisted the first respondent in the setting up of the entity for the purposes of running the library and assisted with putting in place the framework needed to engage volunteers. This resulted in documents created for volunteering opportunities for the second respondent being utilised for engaging volunteers for the first respondent. And, this included the first respondent making use of some of the second respondent’s processes, including the second respondent carrying out the initial induction of volunteers on behalf of the first respondent.[18]There was a service level agreement signed between the first respondent and the third respondent (see p.341). This laid down a requirement that there would always be at least one volunteer available to work for all the advertised library working hours (see p.343). This led to the first respondent implementing a rostering system to ensure that there was always at least one volunteer available to work during opening hours.[19]The claimant signed a participant agreement on 20 February 2014 (see p.320). This was an agreement for the claimant to provide volunteering services to the library, through the first respondent. Although this is on a ‘City South Manchester Housing Trust,’ document (City South Manchester Housing Trust later became ‘One Manchester Limited’, the second respondent), the claimant was not signing an agreement to provide services for them. This document was simply used as the Trust/first respondent that was to maintain and run the library had at that point not been set up. The claimant’s understanding when she signed this document was that she was signing this for a volunteering role at the library, through the first respondent.[20]The participant document uses the language of expectation rather than contractual obligation.[21]The participant agreement included a paragraph at the bottom of the document, which explained that the agreement was binding in honour and was not a legal contract. It further explained that the agreement could be cancelled at any time by the discretion of either party, without notice. It also explained that neither party intended to create an employment relationship. The claimant accepted under cross examination that she understood this at the time of signing the agreement. Under cross examination she accepted that she understood that the arrangement was binding in honour and trust only. And that she understood that there was no intention to create a binding legal contract.[22]The participant agreement did not lay down any commitment to work. The claimant and other volunteers were free to select what shifts they covered. The agreement allowed volunteers to simply give notice if they were unable to attend an agreed shift or if they were going to be late.[23]The claimant was regularly rostered to cover a shift on a Monday. Mr Willis would roster two volunteers for each shift, to ensure that the Service Level Agreement was complied with should a volunteer not be able to attend.[24]The claimant on numerous occasions was unable to attend a session she was due to attend. This included the session on Monday 18 November 2019 (see p.225). On this occasion the claimant emailed the first respondent to explain that she could not make the session the day before, and apologised. There were no sanctions imposed for missing this shift.[25]Likewise, the claimant was unable to attend at her shift on 26 January 2020 and 03 Feb 2020 (see p.226). the claimant simply gave notice that she was not able to attend. There was no requirement to explain the reasoning why she could not attend, nor were there any consequences for not being able to attend. And similarly on 05 October 2020 (see p.228).[26]The claimant would not be subject to any sanctions for not honouring the commitment she entered through the participant agreement.[27]The claimant was not entitled to holiday pay. She had no holiday entitlement. If she was wanting a ‘holiday’ she could simply request that she not be rostered to volunteer for the effected dates. However, this was not holiday leave in the legal sense, but merely in line with the participant agreement of giving notice when the claimant was unable to attend. This would enable the first respondent to manage its volunteers and ensure that they always had a sufficient number of volunteers on a shift to comply with the Service Level Agreement.[28]The claimant was offered some training, around her volunteering role.[29]The claimant was not paid.[30]Although the claimant could claim back reasonable out of pocket expenses, she never did so.[31]The claimant was not entitled to sick pay in relation to sickness absences from any of the 3 respondents, and she never received it. The claimant was not required to follow any particular process, or submit a sick note if she was unable to attend a rota’d shift due to illness.[32]The claimant was provided with an induction. This was completed by 20 February 2014 (see p.312).[33]The claimant did complete registration forms (p.306), a self-disclosure form (p.309) and a data protection document (p.313). None of these documents support that the claimant entered a legally binding contract.
CONCLUSIONS
[34]Having considered this matter carefully- I conclude that there is no legally binding contract of service or to personally do work between the claimant and any of the 3 respondents.[35]At its height, the claimant was afforded access to some training by the first respondent and was rostered regularly to provide cover on a Monday, again by the first respondent. The second and third respondent had no role to play in any of this. However, these two factors are not sufficient to support that the claimant had entered into any legally binding contract with any of the respondents.[36]The arrangement the claimant had with the first respondent was flexible. The claimant knew this and does not dispute this. There are numerous occasions where the claimant could not attend at the library at the time required, and simply sent an email to explain this, which included on one occasion after a rostered shift had taken place.[37]The contract lacks any form of consideration passing to the claimant. Nor did either party ever intend this to be creating legal relations. This is clear in the documentation. And it is clear in the evidence that I have heard, including from the claimant. Crucially, other than being binding in honour and trust, there was no contractual obligation placed on the claimant to actually do any work. It was a moral obligation at best. Nobody is questioning that the claimant once she gave her word that she would cover a particular shift then she would want to do so, but that does not reach the level of contractual obligation.[38]The claimant under cross examination herself accepted that she understood the relationship to be of volunteering, and that she understood this from the paragraph that was contained at the bottom of the participant agreement. The claimant also explained that she understood that there could be no sanction against her in relation to the matters contained within the document.[39]At its height, the participant agreement lays down expectations. This does not contain any contractual obligations. There was no requirement to work any hours, the claimant was free to give up her time and work hours that she could commit to. A rostering system was merely used to ensure compliance with the service level agreement. There were no sanctions that could be applied against the claimant if she did not honour the participant agreement. There was no holiday entitlement. The claimant received no pay. The claimant could claim for expenses, but she never did. And any such expenses are not argued to go beyond actual expenses that would have been incurred. The claimant could have withdrawn from the agreement at any point, and again there would be no contractual remedy against her.[40]All the findings I have made point towards there being no such contract of service or contract to personally do work between the claimant and any of the 3 respondents.[41]In these circumstances I conclude that there was no contract of service between the claimant and the first respondent. And there was no contract to undertake work personally between the claimant and any of the three respondents.[42]It is because of that conclusion that the claims that the claimant brings are not within the jurisdiction of the Employment Tribunal. And thus, those claims are all dismissed. For the avoidance of doubt, all claims brought by the claimant in this case are dismissed.[43]Given my findings and the conclusion I have reached, it is not necessary to consider and determine those other matters that had been listed to be determined for this two-day listing.