Miss C Hall v Prosperity Plus Healthcare Ltd: 2406827/2023

EMPLOYMENT TRIBUNALS

Case No 2406827/2023

Between

Miss C HallClaimant

Prosperity Plus Healthcare LimitedRespondent

Date 17 July 2024

JUDGMENT

The complaint that the claimant was unfairly dismissed is struck out.

REASONS

[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.

[3]The claimant was employed by the respondent for less than two years.

[4]Therefore the claimant is not entitled to bring such a complaint.

[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.

[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment.

[1]Unauthorised deduction from wages, contrary to section 13 of the Employment Rights Act 1996 (“ERA”);

[2]Under section 8 of ERA 1996, failure to supply an itemised pay statement; and

[3]A claim for damages for breach of contract (wrongful dismissal).

[4]The claimant worked for the respondent, a care company. The claimant said she worked as a deputy manager from September 2022. The respondent said the claimant was not employed before 11 February 2023. The respondent said prior to that date the claimant did tasks for the respondent on a goodwill basis, as a friend of the owner Ms Cameron when the respondent company was being set up as a new business.

[5]The case was previously case managed by Judge Aspinall and Judge Horne at case management hearings.

[6]The first issue was whether the claimant was a worker or not between September 2022 and February 2023. (It was common ground she was an employee from 11 February 2023). I found that she was a worker within the meaning of s230 (3)(b) Employment Rights Act 1996.

[7]The next issue was whether the claimant received less than the sums properly payable under the contract for the period 16 September 2022 and February 2023.I found she was owed £1,614.40.

[8]The next issue was whether the claimant received less than the sums properly payable for the period February to April 2023. I found she was owed £13 (February), £72.74 (March) and £180.23 (April)

[9]There was also an issue as to whether the claimant’s claim for an unlawful deductions from wages was presented within the time limits. I found it was.

[10]The next issue was whether the respondent failed to provide an itemised pay statement for February 2023. That was not disputed. I ordered the respondent to pay the claimant £350.

[11]The total payable by the respondent to the claimant was £2,230.37

[12]The claimant’s claim for wrongful dismissal (notice pay) was not well founded and failed.

The Law

[13]I reminded myself of the legal test of a worker and the legislation in section 230(3)(b) Employment Rights Act 1996 which states:” ‘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.

[14]In a recent case of Sejpal the EAT stated: “The entitlement to significant employment protection rights depends on a person being a worker. Deciding whether a person is a worker should not be difficult.”

[15]Unfortunately, that is not always the case. However, Taylor J went on to state: “Determining worker status is not very difficult in the majority of cases, providing a structured approach is adopted and robust common sense is applied. The starting point and constant focus must be the words of the statute. Concepts such as mutuality of obligation, irreducible minimum, umbrella contracts, substitution, predominant purpose, subordination, control and integration are tools that can sometimes help in applying the statutory test but are not themselves tests. Some of the concepts will be irrelevant in particular cases or relevant only to a component of the statutory test. It is not a question of assessing all the concepts, putting the results in a pot and hoping that the answer will emerge; the statutory test must be applied according to its purpose.” He then went on to quote Baroness Hale in Bates van Winkelhof v Clyde &Co LLP

[2014] ICR 730

: “There is not a single key to unlock the words of the statute in every case. There can be no substitute for applying the words of the statute to the facts of the individual case.” Facts, Discussion and Conclusions

[16]I find that the claimant and the respondent’s main witness (Ms Cameron) knew each other. Ms Cameron said that they were friends. The claimant said that she knew Ms Cameron via her cousin but said she did not describe it as a friendship. There was no doubt that Ms Cameron (who was based in Derby) wanted to set up her new business based in healthcare in Manchester, and there was a discussion about how the claimant could assist her. It is not disputed that Ms Cameron saw the claimant very regularly when visiting her friend, who was the cousin of the claimant. It is also not disputed that the claimant became involved in September 2022, that the company was incorporated in September 2022 and starting trading in February 2023.

[17]Many of the facts in this case were disputed. The claimant said that there was an agreement that she would work for the respondent as a Deputy Manager for 40 hours a week from September 2022, and said that is what she did. The respondent said that the claimant was a volunteer and was helping her out as a friend to start up a new business.

[18]The claimant provided extensive evidence of very lengthy WhatsApp exchanges and voice note messages, many which are within the bundle of documents.

[19]Partway through the hearing, overnight, a second bundle was produced which encompassed some of the respondent’s emails and a further work schedule produced by the claimant.

[20]I am satisfied that the claimant completed an application for the Deputy Manager role and sent it to Ms Cameron in October 2022 as shown in the bundle, but I find there is no evidence that the respondent ever agreed to her being in that role and no evidence of a contract in that role. I find the claimant was not working as a deputy manager in this period. I find the claimant completed a variety of administrative tasks for the respondent in this period to help Ms Cameron start her business.

[21]Unfortunately, there is no evidence of any contract in the bundle at all – the only contract is a draft contract for a role the claimant did not do.

[22]I find the agreement between the parties between Sept 22 and February 2023 was informal and there was no express agreement between the parties in writing or otherwise.

[23]I find that there was a very clear expectation that the claimant would do the tasks Ms Cameron assigned to her – an example can be found at page 33 and in the email of 30 January 2022 and in the further documents that the claimant supplied on the second day of the hearing.

[24]I must step back and look at the nature of the relationship. As early as 4 November 2022 the claimant was requesting money and Ms Cameron was sending it to her. It was never described as a loan. By 16 January 2023 Ms Cameron was describing as “payment for your time” a sum of money (see page 112). Ms Cameron also said, “As soon as we are able to compensate you, we will gladly do so”.

[25]The claimant was providing administrative and other services to the respondent, setting up interviews, editing documents and uploading information. Some documents she was probably creating herself, although there was a dispute between the parties about that. There was no sense that the claimant was selfemployed in this role. Although the claimant worked as an administrator for Direct Line for approximately 20 hours a week and had a job for some time at the retailer Iceland, she also worked as a DJ in her evenings and did some photography work. The claimant did not have a business of which Ms Cameron was a client.

[26]When I step back and look at the reality of the amount of work that the claimant was doing for the respondent on a very regular basis, and that the respondent was increasingly sending her work to do describing the work as “tasks to be done”, I find that is consistent with worker status.

[27]The claimant was referring to specific hours she was working as early as November 2022, and by January 2023 Ms Cameron was suggesting the claimant should prepare timesheets (pages 118 and 120) which is also consistent with worker status.

[28]I find the claimant did not work fixed hours or a fixed pattern – she did the work asked of her in the time that was convenient to her, sometimes late in the evening, but in the modern world and modern working environment I find that is not inconsistent with worker status. Likewise, using her own software on her own computer is not inconsistent with worker status. Sometimes the claimant worked in her own home or sometimes in the respondent’s premises. I find the respondent sent the claimant on a training course in October/December 2023 as evidenced by Ms Cameron, which is consistent with worker status. The respondent sent money to the claimant for the work she had done and did not object when the claimant asked to use the reference “wages” when identifying it.

[29]In the case of Sejpal it was stated, “deciding whether someone is a worker should not be difficult”. Judge Tayler reminds me I must adopt a structured approach and apply robust common sense.

[30]I turn to mutuality of obligation. I am satisfied that there was an obligation that the claimant would carry out the tasks asked of her by Ms Cameron and that the respondent would remunerate the claimant in return. I rely on the respondent’s email in January and the payment of sums marked as “wages” that the respondent was remunerating the claimant for work she had done. I am satisfied there was a “wage work” bargain ie the claimant would be paid for work done.

[31]I find the fact that the claimant also worked for other organisations such as Direct Line and Iceland is not fatal to a finding that she worked for the respondent. In modern life many people work in a number of roles for different organisations.

[32]The fact that the claimant worked remotely is also not fatal to a finding that she was a worker – many people in the modern age work remotely.

[33]There was no doubt that the claimant was providing her services personally for the respondent and no suggestion that she could send someone else to carry out those tasks for the respondent. There was therefore no power of substitution.

[34]Accordingly, although there was no formal written contract of the working relationship and no agreement about fixed hours or rate of pay, I find that the claimant was a worker working for the respondent during that period.

[35]I find when applying “robust common sense” the claimant had undertaken to do work personally for Ms Cameron in helping her to set up her business. Ms Cameron was not a client of the claimant- the claimant did not run a business. In her other jobs for Iceland and direct line the claimant was a retail worker and an administrative worker.

[36]Although they had never expressly discussed payment, Ms Cameron assigned tasks to the claimant and later, when asked for money by the claimant, transferred sums she agreed to reference as “ wages”. I therefore find the claimant was a worker within the meaning of s230 (3)(b) Employment Rights Act 1996 and she is therefore eligible to bring a claim for unlawful deduction from wages for the period September 2022 to February 2023. Did the claimant receive less than the sums properly payable during the period September 2022-February 2023. (22 weeks) .S13 Employment Rights Act 1996.

[37]I turn to the number of hours worked. That is extraordinarily difficult to determine. The claimant was inconsistent as a witness. Initially the claimant said she worked 40 hours a week consistently in this period but later said the hours she actually worked were on a schedule which she said was on her Macbook. She produced this at the Tribunal on the second day of the hearing. That shows during those 22 weeks a variety of hours worked, including some of 40 hours per week but some of much less.

[38]Ms McGrath for the respondent conscientiously supplied a very detailed table showing in her submissions document the number of hours she said the claimant actually was engaged doing tasks for the respondent. However, although helpful, I find that that is not a true guide either because many of the tasks done by the claimant would have required work to be done outside of the times recorded during by a voice note conversation with Ms Cameron or in addition to the time spent on a WhatsApp message to her.

[39]It was also difficult to determine because there was never any express agreement between the parties about how many hours the claimant would work for the respondent and how much the hourly rate was.

[40]When I asked her, Ms Cameron conceded that the claimant had spent no more than ten hours a week on the tasks she asked the claimant to do during this period, and I rely on her evidence and 10 hours per week is the number of hours I have found the claimant worked for the respondent. I did not use the hours suggested by the claimant because they were completely inconsistent.

[41]Having found the claimant was a worker, I find it was an implied term of the agreement that she would be paid for the work she did for the respondent. It was not disputed that when the claimant was employed by the respondent as the business started trading in February 2023, she was provided with a formal document in her role. The agreement was that she was to be paid £10.90 an hour and that is the hourly figure I have adopted. I find the claimant received less than the sums properly payable under an implied agreement when she worked 10 hours a week at £10.90 hourly. The calculation is therefore £10.90 x 10 hours per week x 22 weeks.

[42]The respondent had paid the claimant a total of £783.60 between October 2022 and January 2023 and credit was given for those sums leaving the balance due of £1,614.40 Did the claimant receive less than the sums properly payable under the contract between February and April 2023-s13 Employment Rights Act 1996

[43]The next issue was the wages between February and April.

[44]This was confusing. The respondent accepted they had failed to provide a pay slip (itemised pay statement) for February 2023. There was no agreement about the hours the claimant had worked in February.

[45]Confusingly there was no timesheet either for February.

[46]I find that the claimant did have to give credit for the £750 she had received from the respondent in February as a “bonus” which I find was wages for work done. I find she did not have to give credit for other payments which she had received which were said to be payments of £250 on 13 February and £532 on 15 February, which were reimbursement to the claimant for expenses the claimant had incurred in transporting carers.

[47]I determined that the claimant had worked 35 hours a week for 2 weeks in the weeks from 11 February at £10.90 an hour in her role as an employee for the respondent. I reached this conclusion by looking at the hours the claimant had worked in March 2023. The calculation was 35 x £10.90 x 2 weeks =£763.

[48]She had received £750 leaving a loss of £13.

[49]For March I awarded the claimant the difference in the hourly rate of pay. The claimant agreed the total number of hours on her payslip for March (3.5 + 19 + 88 + 50.25) which makes 160.75 hours. I find she was entitled to be paid all those hours at £10.90 per hour = £1,752.17, which is less than the sums she actually received of £1,181.95 and £497.48, leaving a difference in pay of £72.74 to which the claimant was entitled. ( The respondent had paid a lower hourly rate for some tasks).

[50]I find theclaimant did not receive her pay at all in April of £180.23. Confusingly, the respondent said they had made deductions for the claimant's DBS check of £58, training £250, an issue about a car of £189 and some other damage of £25, which totals £522, but there was no clear deduction marked on the payslip and it may be that they had never deducted the full amount. In any event I determined that the claimant was entitled to the hours worked in April in the sum of £180.23 on her payslip. Time Limits Issue

[51]The claimant’s claim was presented on 16 June 2023. Early conciliation started on 6 April 2023 and ended 15 May 2023. There was an issue as to whether the claimant’s claims for unlawful deductions from wages were presented within the time limits, particularly in relation to the period September 2022 to February 2023. I am satisfied there was an ongoing series of deductions from when the claimant started working for the respondent on 16 September 2022 until her relationship was terminated on 4 April 2023. Where a claim is made in respect of a series of deductions the 3 month time limit starts to run from the date the last deduction in the series was made. S23(4A) ERA 1996. I find the last deduction was made at the time of the claimant’s final pay slip in April 2023 and as the claimant presented her claim to Tribunal on 16 June 2023, that was well within the 3 month period and accordingly the claim was within time. Failure to provide an itemised pay slip in February 2023-s8 Employment Rights Act 1996

[52]The respondent’s complete failure to provide an itemised pay slip for the claimant’s first month as an employee in the respondent’s business caused real confusion for the claimant and difficulty in establishing what her loss was at this hearing and I considered it appropriate to award £350. Wrongful dismissal

[53]A claim for wrongful dismissal is a claim for notice pay. An employer is entitled to dismiss an employee without paying notice pay if there was a repudiatory breach of contract.

[54]The claimant was dismissed without notice pay. The respondent said the repudiatory breach of contract was that the claimant destroyed documents which belonged to them.

[55]I must consider whether the claimant destroyed documents belonging to the respondent. When I asked the claimant what happened in relation to the documents, she simply said there was no evidence that she had destroyed them – she did not say she had not done it. I did not hear from the person who said he saw the claimant do it, but I heard from Ms Cameron who said it was reported to her. I attach some probative value to the contemporaneous police report which said that the claimant had stated to them that she had destroyed the documents but had permission to do so. There seems to me no reason why the police should record inaccurate information. There was no dispute the police took no further action in relation to the report made by them respondent to them.

[56]I am satisfied that the claimant did destroy the respondent’s documents and that amounted to a repudiatory breach of contract. The claimant conceded that if she had destroyed the documents, it would be gross misconduct.

[57]Accordingly, the claimant was not entitled to notice pay because her wrongful dismissal claim failed. There was therefore no necessity for me to determine what the notice period was.

[58]Finally I apologise for the delay in producing these written reasons which has been due to my absence on annual leave and hearing other cases.