Mrs H Hughes v Vedamain Ltd and Others: 2418209/2020
EMPLOYMENT TRIBUNALS
Case No 2418209/2020
Between
Mrs H HughesClaimant1. Vedamain Ltd 2. Clakim Ltd (formerly known as Cabbey Private Hire Ltd) 3. Janbar Mg Ltd (formely known as Chester Private Hire Ltd) 4. Kajoliea Ltd (formerly known as Refer Ltd)Respondent
Before
Employment Judge HorneIn person for claimantDate 13 July 2023
JUDGMENT
[1]The claimant was a worker for Vedamain Ltd within the meaning of section 230(3) of the Employment Rights Act 1996 and regulation 2(1) of the Working Time Regulations 1998.[2]The claimant was an employee of Vedamain Ltd within the meaning of section 83 of the Equality Act 2010.[3]The complaints against Vedamain Ltd of sex discrimination, unauthorised deductions from wages and failure to pay holiday pay will therefore be determined at a final hearing.[4]The claimant was not an employee of Vedamain Ltd under a contract of employment within the meaning of section 230(1) of the Employment Rights Act 1996.[5]The complaint of unfair dismissal is therefore dismissed. (To avoid doubt, the tribunal has dismissed the claimant’s complaint that her dismissal was unfair under section 103A of the Employment Rights Act 1996 as well as her complaint that her dismissal was unfair under section 98 of that Act.)[6]The tribunal does not have jurisdiction to consider the claimant’s complaint under regulation 15 of the Transfer of Undertakings (Protection of Employment) 1 of 2 Case Number: 2418209/2020 Regulations 2006, whether against Vedamain or against the other respondents. This is because: 6.1. The claim was presented after the expiry of the statutory time limit; 6.2. It was reasonably practicable for the claim to be presented before the time limit expired; and 6.3. In any event the claim was not presented within such further period as the tribunal considered reasonable.[7]The regulation 15 complaint is therefore dismissed.[8]The tribunal does not have jurisdiction to consider the claim against Clakim Ltd, Janbar Mg Ltd and Refer Ltd (“the old Abbey companies”). This is because: 8.1. The claim was presented after the expiry of the statutory time limit; 8.2. It was reasonably practicable for the claim to be presented before the time limit expired; and 8.3. In any event the claim was not presented within such further period as the tribunal considered reasonable.[9]The claim against the old Abbey companies is therefore dismissed.[10]The tribunal did not determine whether or not the claimant was a worker for the old Abbey companies. In particular, the tribunal did not determine whether or not the claimant was a worker at times when she had indicated her availability to work on the Abbey App, or at any other time when she was not driving on a school journey.
REASONS
Relevant law
[1]The claimant is a taxi driver. Vedamain Ltd is a taxi company. It operates in the Chester area under the names, "Abbey Taxis" and "KingKabs". It took over the Abbey Taxis business following a sale in December 2019. Prior to the sale, there were three companies trading as Abbey Taxis. I refer to these companies as "the old Abbey companies". Each of the old Abbey companies was directed by Mr M Williams. The claimant drove a taxi for the old Abbey companies. Following the business sale, the claimant drove her taxi for Vedamain Ltd. The claimant's case is that her employment transferred to Vedamain Ltd under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE"). In July 2020, the claimant stopped driving for Vedamain Ltd in circumstances that she claims amounted to a dismissal.[2]The claimant notified ACAS of her prospective claim on 19 October 2020. An early conciliation certificate was issued to her on 29 October 2020. Then, on 19 November 2020, the claimant presented a claim form to the tribunal. 1 of 24 The complaints and the preliminary issues Initial identification of preliminary issues[3]There was a preliminary hearing before Employment Judge Benson on 18 January 2022. At that hearing, the claimant clarified the legal complaints that she was bringing. EJ Benson recorded the complaints in a written case management order which was sent to the parties on 4 February 2022. This is what she wrote: “(i) Ordinary unfair dismissal (against R1); (ii) Automatic unfair dismissal for making a public interest disclosure (against R1); (iii) Direct sex discrimination (the claimant relies upon the termination of her contract as the only act of less favourable treatment) (against R1); (iv) Unpaid holiday pay(against R1 andR2/R3/R4); (v) Unpaid wages, salary or other payments (against R1 and R2/R3/R4); And in addition (vi) A failure to consult on a TUPE transfer (against R1 and R2/R3/R4).”[4]“R1” was Vedamain Ltd and “R2”, “R3” and “R4” were the old Abbey companies.[5]EJ Benson also decided that there should be a preliminary hearing to determine to preliminary issues. Her case management order defined those issues as follows: “(i) What is the claimant’s employment status and who is or was her “employer” in relation to that employment status, and when?(ii) Are her complaints against one or more of these respondents in time and, if not, is there a basis upon which time might be extended?”[6]These are the issues I have to decide. The appear beguilingly simple. Clarification of preliminary issues – the claim against Vedamain Ltd[7]At the start of the hearing before me, we discussed the issues again, to see if they could be further clarified or narrowed. There was additional refinement of the issues during the parties’ closing submissions. What appears below represents the end-point of those discussions. Unfair dismissal[8]It was agreed that, to have the right to bring a complaint unfair dismissal, the claimant would need to show that she was employed under a contract of employment within the meaning of section 230(1) of the Employment Rights Act 1996 (“ERA”).[9]There was no need to decide any issue in relation to the statutory time limit in relation to the complaint of unfair dismissal. At the hearing before EJ Benson, Vedamain Ltd had conceded that the unfair dismissal complaint had been presented within the statutory time limit. Wages – deductions made by Vedamain Ltd 2 of 24[10]Vedamain Ltd accepted that the claim was presented within the statutory time limit for any complaint in relation to wages that were alleged to have been unlawfully deducted during the claimant’s employment with Vedamain Ltd.[11]During final submissions on Vedamain Ltd’s behalf, Mr Ramsbottom conceded that the claimant had a contract with Vedamain Ltd and that that contract required her to work personally for Vedamain Ltd, so far as that work consisted of transporting school students under the local authority tender scheme.
Relevant law
[12]This meant that the claimant would be a worker for Vedamain Ltd unless Vedamain’s status was by virtue of the contract the customer of a business undertaking carried on by the claimant. I call this the “business undertaking issue”. Sex discrimination[13]The sex discrimination complaint was conceded to be in time. The only act of less favourable treatment of which the claimant complained was the termination of her contract.[14]I had to determine whether the claimant was an employee of Vedamain Ltd within the definition in section 83 of the Equality Act 2010 (“EqA”). The parties agreed that, although the statutory wording was different, the issue would stand or fall with the business undertaking issue. Wages – Vedamain Ltd liability for deductions made by old Abbey companies – whether liability transferred[15]The claimant confirmed that her claim for deductions from wages (apart from holiday pay) was brought only against Vedamain Ltd and not against the old Abbey companies. She added, however, that her claim included a complaint that the old Abbey companies had made unauthorised deductions from her wages and that their liability in respect of that complaint had transferred to Vedamain Ltd under regulation 4 of TUPE.
Relevant law
[16]The alleged deductions (as I understand them) consisted of: 16.1. failure to pay the national minimum wage; and 16.2. the deduction of “settle” fees from “wages” that had been earned by driving her taxi.[17]In order to be able to complain that the old Abbey companies had made any unlawful deduction from her wages, the claimant would need to establish that she was a worker for the old Abbey companies. That was a dispute within the remit of the preliminary hearing.[18]If the claimant was a worker for one of the old Abbey companies, and they had made an unauthorised deduction from her wages, there would then be an issue about whether the old Abbey companies’ liability in respect of that deduction transferred to Vedamain. That dispute was not identified by EJ Benson as one of the preliminary issues.[19]It was accepted by both Vedamain Ltd and the old Abbey companies that an undertaking (namely the Abbey taxis business) had transferred from the old Abbey companies to Vedamain Ltd in December 2019. This was a relevant transfer within the meaning of regulation 3(1)(a) of TUPE. 3 of 24
Conclusions
[20]Regulation 4 of TUPE operates where a person is employed by the transferor immediately prior to the transfer and assigned to the organised grouping of resources that transfers.[21]As I will record more fully under the heading of the relevant law, a “employee”, for the purposes of TUPE, means any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services.[22]Unfortunately, the parties did not make any submissions about what kind of employment status was required in order for the claimant to have been “employed” within the meaning of regulation 4. Nor did they address the question of whether the claimant had the requisite status. The parties’ written and oral submissions on employment status were confined to the questions of whether the claimant was a “worker” or an employee under a contract of employment. I canvassed opinion from Mr Ramsbottom (Vedamain Ltd’s representative) as to whether it was necessary to determine whether the claimant was a “worker” for the old Abbey companies. He indicated that Vedamain Ltd would be content if I did not make that determination.[23]I did not announce a judgment directly on the question of whether liability had transferred to Vedamain Ltd. Likewise, the judgment sent to the parties did not expressly address it. On the other hand, whilst explaining my reasons orally, I did make an observation that I did not think that liability had transferred. I made that comment shortly after concluding that the claimant was not employed under a contract of employment. The impression that I may have determined that question would have been supported by the case management order, which I caused to be list any issues that would enable the tribunal to determine whether liability had transferred under regulation 4 or not. Wages – inherited liability – time limit
Conclusions
[24]If liability in respect of the old Abbey companies’ unauthorised deductions did transfer under TUPE, the tribunal would have to decide whether it had jurisdiction to consider the claim in respect of the pre-transfer deductions. This would fall within the scope of the preliminary issues listed by EJ Benson, as it would involve consideration of the statutory time limit.
Relevant law
[25]A critical question here would be the date on which the statutory time limit started to run. In turn, that would depend on which deductions, if any, were part of the same series as deductions that were allegedly made by Vedamain Ltd. Questions relevant to that determination would include: 25.1. Did the TUPE transfer itself break the series of deductions? 25.2. Was the deduction of settle from school transport payments part of the same series as deductions of settle fees from fares earned whilst driving on the Abbey taxis app? 25.3. Was alleged failure to pay the national minimum wage whilst driving school runs part of the same series of deductions as failure to pay the national minimum wage whilst driving on the Abbey taxis app? 25.4. Were there any breaks between school runs or school journeys that brought a series of deductions to an end? 4 of 24
Disposal
[26]Unfortunately, the parties did not focus their submissions on any of these points. I did not determine them.[27]If the claim for a particular deduction was presented after the statutory time limit expired, I would need to consider whether the time limit could and should be extended. See paragraph 29 for the issues in relation to the extension of time. Whilst the parties did address those questions, they did not do so in the context of a break in a series of deductions. The time limit may have started to run from a different date, and the practicability of presenting the claim may have been different at that time. I did not, therefore, determine whether I could grant an extension if one were required. TUPE failure to inform or consult[28]So far as Vedamain Ltd was concerned, this left the complaint of failure to inform and consult under regulation 15 of TUPE. The statutory time limit for that complaint ran from the date of the transfer.[29]The issues were: 29.1. Was it reasonably practicable the claimant to present this part of the claim before the statutory time limit expired? 29.2. Was this part of the claim presented within such further period as the tribunal considers reasonable?[30]If those issues were determined in the claimant’s favour, the tribunal would then have to determine whether the claimant was an “affected employee” within the meaning of regulation 13 of TUPE. That would depend on whether the claimant was employed under a contract that was not a contract for services. Clarification of the preliminary issues – the claim against the old Abbey companies[31]At the start of the hearing, we also clarified the preliminary issues in respect of the claim against the old Abbey companies. The claimant told me that the only complaints she was bringing against the old Abbey companies were: 31.1. Failure to inform and consult in relation to a relevant transfer; and 31.2. Unauthorised deduction from holiday pay.
Conclusions
[32]Time limit issues were potentially determinative of both these complaints, regardless of the employment status issues. This was because: 32.1. If the claimant was employed by the old Abbey companies under a contract that was not a contract for services, any liability for holiday pay would transfer to Vedamain Ltd under regulation 4 of TUPE. The old Abbey companies, as transferors, would have no liability and the claim against them would fail. 32.2. If, on the other hand, the claimant’s employment with the old Abbey companies was under a contract for services, there would be no transfer. Liability would remain with the old Abbey companies, but the tribunal would have to consider the statutory time limit. The issues would be:(a) Was it reasonably practicable the claimant to present this part of the claim before the statutory time limit expired? 5 of 24(b) Was this part of the claim presented within such further period as the tribunal considers reasonable?[33]The time limit for the regulation 15 TUPE complaint started to run from the date of the transfer, irrespective of the claimant’s employment status with the old Abbey companies. The time limit issues were the same as at paragraph 29 above. Issues and decisions at a glance
Disposal
[34]The issues I had to decide are summarised in the following table. I have added an additional column to show how, if at all, I determined those issues. Needless to say, I have prepared the information in that column having already sent judgment to the parties. I did not, of course, determine any of these issues without first going through the steps addressed in my reasons below. Complaint Statutory Brought Employment Time limit issues Determination provision against status issues 1. Unfair Sections Vedamain Whether None Not a contract of dismissal 94 and 98 Ltd employed by employment ERA Vedamain Ltd under a contract of employment 2. Automatic Sections Vedamain Whether None Not a contract of unfair 94 and Ltd employed by employment dismissal for 104A ERA Vedamain Ltd making a under a contract protected of employment disclosure 3. Directly Sections Vedamain Whether None Employed within discriminatory 13 and Ltd employed within section 83 dismissal 39(2)(c) of the meaning of because of EqA section 83 EqA sex (which depended on the business undertaking issue) 4. Deduction Regulation Vedamain The business None The claimant from holiday 14 WTR, Ltd undertaking was a worker pay section 13 issue ERA 5. Deduction Regulation Old Abbey Whether the(a) Whether Tribunal has no from holiday 14 WTR, companies claimant was a reasonably jurisdiction pay section 13 worker for the practicable to because of ERA old Abbey present claim statutory time companies within 3 months of limit employment Employment ending with old status not Abbey companies determined(b) Whether claim presented within further reasonable 6 of 24 period 6. Deduction Section 13 Vedamain The business None The claimant from other ERA Ltd undertaking was a worker wages by issue Vedamain 7. Deduction Section 13 Vedamain Whether the The issues in Worker status from other ERA Ltd claimant was a paragraphs 25 and 29 not determined wages by old worker for the above Regulation Abbey old Abbey 4 TUPE companies, companies No written liability judgment on the Whether the inherited by question of any claimant’s Vedamain transfer under employment regulation 4, but status was such possible oral that liability determination. transferred under regulation 8. Failure to Regulation All Whether the (a) Whether Tribunal has no consult on a 15 TUPE responden claimant was an reasonably jurisdiction TUPE ts affected practicable to because of the transfer employee of the present claim statutory time old Abbey within 3 months of limit companies transfer (b) Whether claim No presented within determination of further reasonable employment period status
Evidence
[35]The claimant gave oral evidence on her own behalf. She called Mr Fairclough, Mrs Evans, Mr Swift, Mr Moore and Ms Barron as witnesses. Vedamain’s witnesses were Mr Ward and Mr Thomas. Finally, Mr Williams gave oral evidence on behalf of the old Abbey companies.[36]I also considered documents in an agreed bundle consisting of 258 pages.
Facts
[37]The claimant is a taxi driver. She drives a multi-passenger vehicle which she owns. This has been the case for the whole of the time with which this claim has been concerned. The vehicle is fitted with a tail-lift to make it easier to accommodate a wheelchair. She insures the vehicle herself.[38]At the relevant times, the claimant had a private hire driver’s licence, meaning that she was authorised to drive pre-booked passengers for a fare. Her licence conditions were determined by the Licensing Authority. Conditions included: 38.1. specification of the vehicle, 38.2. maintenance requirements for the vehicle, 38.3. restrictions on signage and advertising, 7 of 24 38.4. the requirement to keep the vehicle and interior clean and tidy, 38.5. prescribed fares to be charged or programmed into the taxi meter.[39]Some drivers (often called “Hackney drivers”) have their own operator’s licence. This means that they can pick up passengers on the street without a booking. The claimant was not a Hackney driver.
Conclusions
[40]Prior to 2011, the claimant drove a taxi in Flintshire. She knew some of the other Flintshire drivers well. At some point shortly before February 2011, the Flintshire taxi operator “removed me from my work for no apparent reason”. I was not told the precise circumstances, but it had something to do with the claimant asserting her employment status as a driver.[41]In February 2011, the claimant spoke to Mr Williams with a view to driving in the Chester area. She remained in contact with the Flintshire drivers.[42]The claimant went to the Abbey Taxis office and met Mr Allan Moore. He helped her submit an application form to the Licensing Authority. She successfully completed the Authority’s taxi test (called "Transportation of Passengers for Hire and Reward") and a driving assessment. Her details were checked with the Disclosure and Barring Service (DBS). She was then given her "badge". She began working for Abbey Taxis in April 2011.[43]There was no written agreement between the claimant and Mr Williams, or between her and any of the old Abbey companies. The parties’ rights and obligations were determined orally and by custom and practice. In broad terms, the agreement was that: 43.1. Abbey Taxis provided the claimant with a radio for her vehicle. 43.2. Abbey Taxis agreed to accept private hire bookings under its operator’s licence. 43.3. Those bookings would then be allocated to drivers including the claimant. 43.4. Passengers generally paid their fare by handing cash to the claimant. When this happened, the claimant was entitled to keep the cash. 43.5. The claimant agreed to pay a weekly fee (known as the "settle") to Abbey Taxis.[44]The claimant gave receipts to customers as and when required.[45]Abbey Taxis prohibited drivers from promoting any other taxi business, including any taxi business of their own, either on the livery of their own vehicles or on business cards or receipts handed to passengers.[46]Drivers did not have a minimum number of trips that they were required to do, or a minimum length of time for which they were required to be available for work. They did, however, have a strong economic incentive to be available at peak times and to drive as many trips as they could. This was because they had to pay the same amount of settle, regardless of how much driving they did.[47]One of the night-time operators at Abbey Taxis was Miss Barron. If Miss Barron noticed that a driver appeared to be tired, she would advise him or her to have a cup of coffee. If that did not appear to work, she would “switch them off”, meaning that they would not be allocated any more driving trips that night. Apart 8 of 24 from that relatively nuclear option, it was left to drivers to decide how much work or to do or not to do on any particular day or night.[48]A few years after the claimant started driving for Abbey Taxis, the business started using a smartphone app instead of allocating jobs by radio. Each driver was issued with a company phone with the app pre-installed. Drivers would open the app when they were available to work. The software tracked the physical location of driver’s vehicles and divided them into zones. Each zone had a separate queue of drivers. When a driver reached the front of the queue, the app would send a notification of the next job to that driver. The claimant was given no information at that stage about the number of passengers or what the destination would be. (This changed when the Abbey Taxis business was taken over by Vedamain Ltd.) The driver would then have a few seconds in which to decide whether to accept the trip or not.[49]If the driver did not accept the trip in time, the app would automatically send the driver to the back of the zone queue and impose a ten-minute penalty. Once the trip was accepted, the app would then provide further details of the passengers and destination. At that point, the driver could reject the trip, but if they did so, they would be sent to the back of the zone queue, and given the ten-minute penalty, in the same way as if they had failed to accept the trip in the first place.[50]The consequences of being sent to the back of the zone queue depended on the time of day when it happened. At quiet times, the driver would have to wait longer than the ten-minute penalty before reaching the front of the queue. During busier periods, a driver might reach the front of the queue before their ten minutes were up, in which case they would be overtaken by the drivers behind them until the penalty period had expired.[51]Zones, queues and time penalties could be overridden manually. Typically, the call operator would intervene where: 51.1. it was obvious to the operator that would be more efficient to send a driver from a neighbouring zone; 51.2. the driver informed the operator of a satisfactory reason for not accepting a job; 51.3. or the automatic ten-minute penalty would mean keeping a customer waiting.[52]When doing private hire work, the driver would use their judgment to decide what route to drive. The price would be determined by the app. The driver and passenger could negotiate a different route with a different price, for example to drive around a traffic hotspot. Drivers were required not overcharge the customer.[53]Drivers never took paid sick leave. They never took paid annual leave. Certain drivers were treated as being on sick leave or on holiday if they were not available for driving. I do not know one way or the other whether drivers on holiday or sick leave benefited from any reduction in their settle. Drivers did not pay any Pay As You Earn income tax or employee National Insurance Contributions. They 9 of 24 described themselves as self-employed. They were described by Abbey Taxis as self-employed.[54]The old Abbey companies had contracts with local authorities to provide school transport. Here is an overview of the contractual framework. The local authority set up an online portal. Through the portal, private hire operators could tender for a regular school journey (called “the Services”) for a particular child or group of children. The local authority would accept the lowest-priced tender for the Services, creating a contract between the local authority and the operator (called the “Contractor”). The contract was subject to the local authority’s standard terms and conditions.
Disposal
[55]The standard terms included: 5.2 The Contractor shall ensure that a Driver shall carry a .. Contract Identification badge… … 5.4.2 The Contractor shall, no less than 7 calendar days before the commencement date of the contract, provide the Head of Service with a list of the names… of all the Drivers and Passenger Assistants who may be deployed in performance of the Services… … 5.4.2.2 The Contractor shall indicate on the list which Drivers and or Passenger Assistants he intends to regularly deploy in performance of the Services. Failure to comply with this condition may result in a warning being issued pursuant to the Contract… … 5.5 If required, the Driver and/or Passenger Assistant shall attend any training courses provided by the Council. A failure to attend following two invitations may result in the revocation of the Contract Identification Badge. … 14.4 The Contractor shall not sub-contract the Services without written permission from [the Transport Commissioning Service]. … 18.1 Upon termination of the individual contracts the following notice periods shall apply. These periods of notice are applicable to the Council and Contractor. … Wheelchair accessible vehicle (tail lift) – 6 weeks’ notice period.[56]Abbey Taxis honoured paragraph 5.4.2.2 of the standard terms by informing the local authority of the names of the regular drivers on its school routes.[57]There was no separate agreement between the driver and the local authority. 10 of 24[58]None of Abbey Taxis’ private hire drivers was required to do school transport work if they did not want to do it.[59]For those Abbey Taxis drivers who did agree to do school runs, Abbey Taxis and the drivers agreed to be bound by the following requirements. These were either expressly agreed orally, or agreed through custom and practice. 59.1. If a driver chose to do school transport work, they were required by Abbey Taxis to meet with the family before starting to do the work. 59.2. A driver could not change from one school run to another without Abbey Taxis’ permission. 59.3. I accepted Mr Swift’s evidence about what the agreement was where a driver agreed to transport a group of children (as opposed to one child). It was up to the driver to decide on the order in which the children would be picked up on a school run. They would also decide the precise pickup times, within the confines of the arrival time at school that would be dictated by the local authority. The driver’s obligation to Abbey Taxis was, having chosen the pickup times and the order of collection, to provide “input” to Abbey Taxis so they could pass on that information to the local authority. 59.4. If a regular driver on a particular school run was unavailable for a particular journey, the driver could recommend another driver as a replacement, but could not simply substitute them without the operator’s permission. The operator would not unreasonably withhold permission where the driver had a good reason for being unavailable such as holiday, sickness or vehicle breakdown. 59.5. Mr Williams told me, truthfully I find, that, once a driver had started doing a school journey for a particular child or group of children, that driver was required to give notice to Abbey Taxis if they wanted to stop driving that journey. The amount of notice that the driver was required to give the operator was the same as the amount of notice that the old Abbey companies were required to give to the Local Authority under clause 18.1. 59.6. Mr Williams’ witness statement (on which he was not challenged) stated that Abbey Taxis paid drivers weekly for the school journeys they had driven that week.[60]The claimant was accompanied by the same Passenger Assistant for many years. Her name was Mrs Evans. They worked well together. Mrs Evans had her own local authority badge. The claimant recommended her to Abbey Taxis as the Passenger Assistant for the school runs that she was driving. Ultimately, however, it was for Abbey Taxis to decide who the regular Passenger Assistant should be for each school run. It was also Abbey Taxis’ responsibility to notify the local authority who the regular Passenger Assistant was going to be, in accordance with clauses 5.4.2 and 5.4.2.2 of the standard terms.[61]In 2012, the claimant was the regular driver on the school run for a child to whom I will refer as “Child A”. The school raised a concern, unfounded as it turned out, that a photograph of the child had been taken whilst inside the claimant’s vehicle. The claimant and Mrs Evans were asked to attend a meeting at the school with a representative of the local authority. The evidence is silent as to who invited them to the meeting. I declined to make a finding about precisely who it was. (Mr Swift 11 of 24 says he cannot remember the incident. I couldn’t find that it had been Mr Swift that had asked the claimant to attend the meeting, nor however did I think that it was possible to find that the school had approached the claimant directly without any involvement from Abbey Taxis. That would strike me as an unusual thing to happen. I would need some evidence that it had actually occurred in this case.)[62]Some time later, Abbey Taxis lost the contract for school transport for Child A. The family asked if the claimant would carry on driving Child A for a different operator. The claimant asked Mr Swift’s permission and was refused.[63]The claimant bought her own fuel and paid her own vehicle maintenance costs. This was the case whether she was driving a school run or driving on the app.[64]Taxi companies in various UK cities face competition from platform-based operators and, in particular, from Uber. In about 2016, Uber started trying to expand its operations into the Chester area. This was naturally seen by Mr Williams as a threat to Abbey Taxis and by Vedamain Ltd as a threat to KingKabs. Their Office Managers started monitoring the Uber app, comparing the locations of Uber drivers with the GPS location of Abbey Taxis and King Cabs drivers. Mr Williams agreed with his opposite number at King Cabs that any driver found working for Uber would be “switched off”. In other words, they would lose the opportunity to work for those operators.[65]Vedamain Ltd bought the Abbey Taxis business in 2019. An asset purchase agreement was concluded on 17 December 2019 between Vedamain Ltd and the old Abbey companies.[66]Schedule 5 of the asset purchase agreement listed 12 employees whose employment would transfer to Vedamain Ltd under TUPE. These employees were all office staff, such as dispatch controllers and telephonists.[67]In a further table (variously described as “Schedule 5 … Part 4” and “Schedule 6”) the asset purchase agreement contained a list of “Self Employed Drivers”. There were approximately 110 drivers in that list. The claimant was one of them. One driver was described as being on “sick leave”. The table indicated that six other drivers were on “holiday”.[68]The settle fee charged by Vedamain Ltd was £120.00 per week, regardless of how much driving the driver had done.[69]Similarly to the old Abbey companies, Vedamain Ltd did not enter into any written agreements directly with the Abbey Taxis drivers.[70]Following the acquisition by Vedamain, the claimant continued on the same school run as she had done with Abbey Taxis. This was under the same contractual framework as she had driven before. Other than the school journeys, she did not do any other driving for Vedamain. She did not, for example, do private hire driving on the app.[71]What of the 110 or so drivers who had previously been driving for the old Abbey companies? For them, the working arrangements continued more or less as normal. They continued using the same app. Because the Abbey Taxis app was 12 of 24 slightly different from the KingKabs app, Vedamain Ltd put some measures in place to harmonise the two platforms. One of these measures was to provide information about the passengers and the destination at the point of first notifying the driver of the trip. In other respects, however, the essential custom and practice remained unchanged. They continued under the same zone and queue system. They continued to pay their settle. They remained forbidden to advertise their own taxi business or any other competitor’s business. They remained at risk of being “switched off” if they were found driving for Uber.[72]Mr Ward was a driver at Vedamain Ltd. He worked on a very similar school run to that driven by the claimant. He described to me the process by which Vedamain Ltd paid the driver. I accepted his evidence as truthful. He gave the example of the claimant’s actual school run. The tender price was £55.00 per trip. That was how much the local authority paid Vedamain Ltd. Of that £55.00 contract price, £40.00 was paid to the driver, £14.00 was paid to the Passenger Assistant and £1.00 was kept by the operator (Vedamain Ltd) as a mark-up. From the driver’s £40.00 was deducted a 6% operator’s commission. This commission did not count towards the £120.00 per week settle, which had to be paid separately by the driver. There was no room for negotiation between the driver and Vedamain Ltd. The driver’s remuneration package was presented by the operator to the driver as “take it or leave it”.
Relevant law
[73]I now rewind the clock to record some further findings of fact relevant to the statutory time limit.[74]In 2015 the claimant took legal advice about the possibility of bringing a claim against the old Abbey companies. She was advised by a barrister. The barrister told her she had a “50/50 chance of success” and that, if she lost her claim, she risked having to pay Abbey Taxis’ legal costs.[75]At no time prior to the asset sale in December 2019 did the claimant ever suggest to Mr Williams that she was an employee of or worker for the old Abbey companies. She did not raise a grievance, she did not raise it with Mr Williams after the sale either. The claimant’s reasons for holding back were: 75.1. the advice that she had received from counsel; 75.2. her fear that if she spoke out, she would no longer be allowed to drive for Abbey (based on her experience in Flintshire in 2011); and 75.3. she did not think that the law was clear enough.[76]Until about two years ago, the claimant had limited access to the internet. She knew about Google, but was unable to make regular internet searches.[77]The claimant monitored the progress of the Uber drivers in their “class action” against Uber. The drivers were successful in the employment tribunal. The claimant became aware of their success shortly after the judgment was sent to the parties in their case in October 2016. She later learned that Uber were taking the case through various levels of appeal. Her understanding of the process was vague and she did not keep track of the various appeal judgments. The Court of Appeal dismissed Uber’s appeal in 2018, but the claimant was not specifically 13 of 24 aware of that. What she did know from about 2018 was that Uber was appealing to the Supreme Court. She wanted to wait until the Supreme Court had made its decision before deciding on her prospects of success in bringing a claim about her own employment status.[78]The Supreme Court handed down its decision in the Uber appeal on 19 February 2021.[79]During the lifetime of the Uber case, the claimant spoke to other taxi drivers in the Chester area and to the drivers she had known in North Wales. They discussed the progress of the Uber appeals and what that meant for their own employment status. These conversations were an opportunity for the claimant to find out how Uber had fared in the Employment Appeal Tribunal and the Court of Appeal.[80]Following the asset sale, Mr Williams retired from the taxi business. He told me, and I accept, that he struggled to remember many of the details of what happened over the years whilst the claimant was driving for Abbey Taxis. Relevant law Contract of employment[81]Section 230 of ERA defines an “employee” as follows: “(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… whether express or implied, and (if it is express) whether oral or in writing.”[82]In Ready Mixed Concrete South East v. Minister of Pensions and National Insurance [1968] 2 QB 497 at p515, McKenna J formulated the following test for deciding whether or not there was a contract of service: "A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.(iii) The other provisions of the contract are consistent with its being a contract of service."[83]McKenna J later added (p516-517): "An obligation to do work subject to the other party's control is a necessary, though not always a sufficient, condition of a contract of service. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant. The judge's task is to classify the contract (a task like that of distinguishing a contract of sale from one of work and labour). He may, in performing it, take into account other matters besides control." 14 of 24[84]The Ready Mixed Concrete test is not the only test for determining whether a person is an employee, but it is the most frequently used (see Quashie v. Stringfellow Restaurants Ltd [2013] IRLR 99 at para 7).[85]The first element of the Ready Mixed Concrete test has been refined in Cotswold Developments Construction Ltd v. Williams [2006] IRLR 181 and, more recently, in Varnish v. British Cycling Federation UKEAT 0022/20.[86]In Cotswold, at para 54, Langstaff J said this: “Regard must be had to the nature of the obligations mutually entered into to determine whether a contract formed by the exchange of those obligations is one of employment, or should be categorised differently.” And at para 55: “The focus must be upon whether or not there is some obligation upon an individual to work, and some obligation upon the other party to provide or pay for it.”[87]Applying the Ready Mixed Concrete test requires the tribunal to consider all the circumstances and “step back from an accumulation of detail” [1994] ICR 218, CA. “Employment” in anti-discrimination legislation[88]The relevant wording of section 83(2) of EqA reads: “ (2)“Employment” means— (a) employment under a contract of employment… or a contract personally to do work;”[89]Protection of workers from discrimination is a principle of the Treaty for the Functioning of the European Union. Section 83(2)(a) must therefore be interpreted consistently with the definition of “worker” in European Union law. What is required under EU law is a person providing services under the direction of another in return for remuneration: Allonby v Accrington and Rossendale College: [2004] ICR 1328.[90]The employment must be “under” the contract. This implies that the employed person will be in a position of subordination to the putative employer: Hashwani v. Jivraj [2011] UKSC 40.[91]In Secretary of State for Justice v. Windle [2016] EWCA Civ 459, at para 9, Underhill LJ commented that the Hashwani distinction, although less explicit in section 83(2)(a), was the same as the “business undertaking” test in section 230(3)(b) of ERA. This comment was derived from the remarks of Baroness Hale in Bates van Winkelhof v. Clyde & Co [2014] UKSC 32, para 31. Where there is no contract of employment, the essential test is whether a person is in business on their own account performing services for a client or customer, or a self-employed person who does not fit into that category. Worker[92]Section 230(3) of ERA provides, with my emphasis: “ 15 of 24 (3) In this Act “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…”[93]Some working arrangements are casual. There may be no obligation on the employer to provide work, or no obligation on the putative worker to accept offers of work. In those circumstances, the question often arises whether the individual is a worker within section 230(3)(b) whilst actually working. In answering that question, the tribunal should take into account the absence of mutual obligations between assignments as a factor which may point towards the individual being in business on their own account: Quashie paras 10-13, Windle paras 22-25. But the tribunal should also recognise that other factors may point towards worker status, even if there was an express contractual right to refuse offers of work. One such factor, Underhill LJ said in Pimlico Plumbers Ltd v. Smith [2017] EWCA Civ 51 at para 145, was if the work was so regular that it was effectively continuous.[94]Ascertaining whether a person comes within section 230(3) is a question of statutory interpretation rather than contractual interpretation. The tribunal must look at the reality: Uber BV v. Aslam [2021] UKSC 5. “Contract for services”[95]Regulation 2 of TUPE contains the following definitions, amongst others: “ “contract of employment” means any agreement between an employee and his employer determining the terms and conditions of his employment; …. “employee” means any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services and references to a person’s employer shall be construed accordingly”[96]The phrase, “or otherwise” in regulation 2 suggests that a person may be considered to be an employee even if their contract was not a contract of service or apprenticeship. This is the view taken by a differently-constituted employment tribunal in Dewhurst v Revisecatch Ltd (ET Case No 2201909/2018.[97]On the other hand, the exclusion of persons who provide services “under a contract for services” suggests that it is not enough to be a “limb (b)” worker as defined in section 230(3) of ERA. Nor is it enough for the putative employee to show that they were something more than a wholly independent contractor. I am also provisionally of the view that it is unlikely to have been Parliament’s intention to afford the protection of the TUPE Regulations to workers in the wider sense. Had 16 of 24 that been Parliament’s intention, the draftsperson could easily have adopted the definition in section 230(3) of ERA or section 83 of EqA.[98]Neither party made submissions on this point. I thought it best not to express a concluded view. I have set out my provisional views mainly as a guide to the parties when it comes to a reconsideration hearing. Time limits[99]Section 23 of ERA provides, relevantly:(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…(3) Where a complaint is brought under this section in respect of— (a) a series of deductions … the references in subsection (2) to the deduction … are to the last deduction … in the series … (3A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2).(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.[100]Regulation 15 of TUPE provides, so far as is relevant: (1) Where an employer has failed to comply with a requirement of regulation 13 or regulation 14, a complaint may be presented to an employment tribunal. … (12) An employment tribunal shall not consider a complaint under paragraph (1) … unless it is presented to the tribunal before the end of the period of three months beginning with— (a)in respect of a complaint under paragraph (1), the date on which the relevant transfer is completed… or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months. 17 of 24 (13) Regulation 16A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (12).[101]Section 18A of the Employment Tribunals 1996 requires a claimant to notify ACAS of a prospective claim and to obtain a certificate before presenting a claim to an employment tribunal. Section 207B of ERA and regulation 16A of TUPE contain provisions for extending the time limit where a claimant has taken those steps.[102]“Reasonably practicable” means “reasonably feasible”. It is not sufficient for a claimant to show that they acted reasonably. The claimant does not, however, have to show that presenting the claim on time was a physical impossibility: Palmer and Saunders v. Southend-on-Sea BC [1984] ICR 372.[103]Where the claim was presented late because the claimant did not know about the three-month time limit, the tribunal cannot extend the time limit unless the claimant proves that it was not reasonably practicable for the claimant to have discovered the existence of the time limit. The tribunal should take account of the enquiries that it would have been reasonably practicable to have made. If the claimant could reasonably have been expected to know about the time limit, the claimant must take the consequences: Walls Meat & Co v. Khan [1979] ICR 52, CA.[104]Where it was not reasonably practicable to present the claim in time, the tribunal must decide what further period it considers to be reasonable for presenting the claim. When doing so, the tribunal must take into account all the circumstances, including the strong public interest in claims being brought promptly, against the background of the primary time limit being three months: Cullinane v. Balfour Beatty Engineering Services Ltd UKEAT/0537/10 per Underhill J at paragraph 16. Was the claimant a “worker” for Vedamain Ltd?[105]I must now apply the law to the facts as I have found them.[106]I start with the question of whether or not the claimant was a “worker” for Vedamain Ltd within the meaning of section 130(3) of ERA.[107]As I have previously noted, Vedamain Ltd accepts that it had a contract with the claimant. It is also common ground that, by the terms of that contract, the claimant was required to do the work of driving a taxi, and to do it personally. The claimant was therefore a worker unless Vedamain Ltd succeeds on the business undertaking issue.[108]Vedamain Ltd argues that the claimant was running her own business and that Vedamain Ltd was its customer. There are some factors that point towards that conclusion: 108.1. The claimant was not just providing her own work, she was also providing the use of a business asset. The service of transporting passengers, especially wheelchair users, was dependent on the claimant’s own labour and skill, but it was also reliant on the claimant providing her own specially-adapted multi-passenger vehicle. 108.2. The claimant took considerable economic risk. She invested in the vehicle and its adaptation. She paid to maintain it. Not only that, but she paid 18 of 24 a fixed amount of settle, regardless of how much driving she did and how much money she earned. 108.3. The claimant had some freedom to decide how to provide the service of transporting passengers in a way that was most advantageous to her. She chose what vehicle to use. She could choose the order in which she collected individual students within a group, and adjust the pick-up times accordingly. She could decide what route to take, as long as it involved picking up all the students and getting them to school by a particular time. It would, of course be in her interests to choose the fastest route, because she would not get paid any more for taking a slower one. But that is the kind of economic reality faced by most businesses. 108.4. Although the claimant did not choose to apply for an operator’s licence, she was free to work as a Hackney driver if licensed to do so. 108.5. The way in which the claimant provided transport services was tightly regulated (see paragraph 38), but these restrictions were imposed by the licensing authority, not by Vedamain Ltd.[109]Having taken the above factors into account, I have nevertheless concluded that the claimant was a worker for Vedamain Ltd. The following factors are in my view more persuasive: 109.1. First, Vedamain placed substantial restrictions on the claimant’s freedom to drive for anyone else. With the exception of licensed Hackney driving, the claimant was effectively required to work exclusively for Vedamain Ltd. She was prohibited from working for any other operator and prohibited from advertising any other or her own driving services. Monopsony customers do exist, of course. A dominant customer can lock suppliers out of supplying anyone else. But that is not a typical feature of the business-customer relationship. 109.2. The respondent dictated the fee for a school run to the claimant. There was no room for negotiation. Again, some customers, such as supermarket chains, are in a position to dictate prices to their suppliers, such as farmers. But that is the exception. Most small businesses have some say in the price they charge to their customers. 109.3. There was a degree of integration of the claimant into the business. The claimant’s provision of services and payment of settle was believed by Vedamain Ltd and the old Abbey companies to be sufficiently dependable as to include her as a business asset. Otherwise, there would have been no point in attaching the list of drivers as a schedule to the business purchase agreement. 109.4. There was a requirement that the claimant give notice to Vedamain Ltd if she wanted to stop driving a regular school run. 109.5. Whilst the claimant had considerable influence over who would be her Passenger Assistant, the final decision was up to the operator and not the claimant.[110]I therefore conclude that Vedamain Ltd was not a customer of the claimant’s business undertaking, and find that the claimant was a worker within the meaning of section 230(3) of ERA. 19 of 24[111]The complaints of unauthorised deductions from holiday pay and wages by Vedamain Ltd will therefore proceed to a final hearing. There remains a live issue about the extent of the deductions that the tribunal should consider. In particular, I have not yet determined whether the tribunal can consider Vedamain Ltd's liability in respect of the old Abbey companies' alleged deductions. I will return to this question later in this judgement. Employment status within equality law[112]It follows from the above conclusion that the claimant was also an employee within the wide definition of that word in section 83 of EqA.[113]The claimant’s discrimination complaint against Vedamain Ltd will therefore be considered at a final hearing. Was the claimant employed by Vedamain Ltd under a contract of employment?[114]I next consider whether the claimant’s employment by Vedamain was under a contract of employment, within the meaning of section 230(1).[115]Again, I start from the agreed position. There was a contract by which the claimant agreed to do regular driving work on a school run in return for remuneration to be paid by Vedamain Ltd. The parties remained mutually bound by those obligations, subject to the claimant’s entitlement to terminate a regular school run by giving notice to Vedamain Ltd. The notice period was equivalent to what Vedamain Ltd had to give to the local authority. The first requirement of the Ready Mixed Concrete test is therefore satisfied.[116]The next requirement is for there to be a sufficient degree of control. In my view, that requirement was not met. It is true that Vedamain Ltd restricted the claimant’s ability to advertise and to drive for competitors. But restricting competition is only aspect of the kinds of control that employers typically exert over employees. Vedamain Ltd gave the claimant considerable freedom to decide how to provide transport for students. She decided what vehicle to buy. She could choose the route, as described at paragraph 108.3. The claimant had considerable influence (albeit not the final word) over Vedamain Ltd’s choice of Passenger Assistant. There were controls on the claimant’s work, for example, vehicle maintenance requirements, but as I have already explained at paragraph 108.5, this control was exercised by the local authority rather than Vedamain Ltd.[117]I have considered what the position would be if my conclusions about the sufficiency of control are held to have been wrong. In that case, I would have to decide whether the other features of the relationship were consistent with there being contract of employment.[118]I take into account the claimant’s relatively weak bargaining power in the relationship. She had no say in the amount of settle she paid, or the driver’s fee for a school journey. Nevertheless, my decision would be that, looking at the picture as a whole, the claimant was not an employee. Features I have taken into account in coming to that conclusion include the following: 118.1. The claimant did not pay PAYE tax or employees’ national insurance contributions. That tax arrangement would undoubtedly have been beneficial for her, because she would only have to pay tax on her profits, rather than on her remuneration from Vedamain. This would mean, for example, that the cost 20 of 24 of owning and running her vehicle would be wholly or mainly tax-free. The claimant’s submissions on this point have been directed to the question of whether the tribunal should withhold a remedy on the ground of the parties’ tax evasion. That is a different point entirely. To my mind, the significance of the tax arrangements is not that they were unlawful, but that they shed some light on the true nature of the relationship. 118.2. The claimant was consistently described as self-employed. She never suggested that she was an employee. 118.3. She was not paid sick leave or holiday pay. 118.4. The claimant took the economic risk of investing in a fixed-price asset and paying a fixed amount of settle. She paid for her own fuel. If fuel prices went up, she made less profit; if they went down, she made more profit. These features were inconsistent with a contract of service.[119]The claimant did not therefore have a contract of employment within the meaning of section 230(1) of ERA.[120]This means that the complaint of unfair dismissal must fail. To avoid doubt, my decision does not just prevent the claimant from bringing a complaint that her dismissal was unfair under section 98 of ERA. Her complaint of automatically unfair dismissal under section 103A must also fail, too. Not being an employee, she has no right to bring such a claim, whatever the alleged reason for dismissal. Time limit – holiday pay claim against the old Abbey companies[121]So far, the only issues I have determined have been in the claim against Vedamain Ltd. I now turn to one of the two complaints against the old Abbey companies. This is the complaint of deduction from holiday pay. Assuming that the liability of the old Abbey companies did not transfer to Vedamain Ltd, does the tribunal have any legal power to consider the complaint?[122]The latest in any series of deductions allegedly made by the old Abbey companies must have been on the last occasion when a school run payment was properly payable by those companies. Since the school journey fee was paid weekly, the last such occasion could have been no later than one week after the date of completion of the transfer. The respondents all say that the transfer was completed on 17 December 2019. If that is right, the latest possible deduction was 24 December 2019. The statutory time limit expired three months (less a day) later, on 23 March 2020.[123]Coincidentally, that date is notorious as the start of the first national lockdown in response to the coronavirus pandemic. I have described it as a coincidence because the claimant has never suggested that the sweeping public health measures played any part in her delay in presenting the claim.[124]The claimant contends that the transfer was not completed until 24 December 2019. On that version of the facts, the last day for presenting the claim could have been no later than 30 March 2020.[125]I did not determine which of the two rival dates was the date of completion. The last day for presenting the claim could not have been later than 30 March 2020. If the deadline was actually a few days earlier than that, it would not have made any difference to whether it was reasonably practicable to present the claim on time. 21 of 24[126]The claim was not actually presented until 19 November 2020. The claimant needs an extension of time.[127]I must initially consider whether it was reasonably practicable for the claimant to present her claim by 30 March 2020 (or a few days earlier).[128]The claimant says it was not reasonably practicable to present her claim until she knew the outcome of Uber’s appeal to the Supreme Court.[129]I disagree. Here are my reasons: 129.1. It was not reasonable for the claimant to think that her claim would be decided the same way as the Uber drivers’ claim would be decided. The claimant must have known that her circumstances were different from those of the Uber drivers. The Uber case involved driving purely on a technology platform. The claimant had a separate agreement to drive a regular school run in return for weekly payment. She believed that both she and the operator were bound to that agreement whether her Abbey Taxis app was switched on or off. Waiting for the Supreme Court’s Uber decision would not give her the answer to whether her own claim would succeed or fail. 129.2. Even without regular access to the internet, it was reasonably feasible for the claimant to find out the current progress of the Uber litigation. She already knew that the Uber drivers had succeeded in the employment tribunal. She was in regular contact with North Wales drivers and discussed the Uber case with them. She could have asked a friend to make a Google search for her. Those enquiries would quickly have revealed that the Uber drivers had already been successful in the Employment Appeal Tribunal and the Court of Appeal. She had no particular reason to think that the Supreme Court would overturn those two appellate decisions. 129.3. If the claimant was uncertain about the prospects of success of her own claim in the light of the pending Supreme Court decision, it would have been reasonably feasible for her to present her claim and then to ask for no action to be taken on it until the Supreme Court had handed down its judgment. 129.4. The claimant herself came to the view that it would be reasonably practicable to present her claim without waiting for the Supreme Court’s decision. That is what she did in late 2020; the Supreme Court did not hand down its decision until February 2021.[130]I would in any case refuse to extend the statutory time limit for the claim against the old Abbey companies. Even if it was not reasonably practicable to present the claim by the end of March 2020, I do not consider that the additional delay of 7.5 months was reasonable. For this purpose, I have discounted the period during which the parties were engaging in early conciliation. The remainder of the delay had a significant impact on Mr Williams’ ability to remember the facts. He had retired from the taxi business. The claimant had never asserted her employment status or claimed holiday pay whilst driving for the old Abbey companies. The strong public interest in timely presentation of claims exists precisely because of situations like this.[131]Still assuming that liability for holiday pay did not transfer to Vedamain Ltd, the tribunal has no jurisdiction to consider the claim for holiday pay against the old Abbey companies. If liability did transfer under TUPE, then the claim against the 22 of 24 old Abbey companies would have to fail for that reason. Either way, the complaint against the old Abbey companies must be dismissed. Time limit – failure to inform and consult[132]The time limit for a complaint under TUPE regulation 15 started to run from the date of completion of the transfer. Depending on who was right about the completion date, the last day for presenting the claim was 16 or 23 March 2020.[133]The claimant has not put forward any separate reason for arguing that it was impractical for her to present this particular complaint within the time limit. The tribunal has no power to extend it for the reasons given above. Deductions from wages by old Abbey companies – claim against Vedamain Ltd for inherited liability[134]I now turn to the claim against Vedamain Ltd in respect of deductions allegedly made by the old Abbey companies.[135]I have already explained that I did not resolve any time limit issues in respect of this part of the claim. This was because of the bespoke questions (see paragraphs 25 and 29) relating to series of deductions, on which neither party made any submissions.[136]I propose to consider these questions at a further preliminary hearing.[137]As I also explained at paragraph 23, I may have given the impression of having finally determined the question of whether the claimant was employed within the meaning of regulation 4 of TUPE. If it was a final determination, I do not set out any further reasoning in support of it. That is because I do not believe such a determination could stand. This is because: 137.1. It did not involve an application of the relevant legal test; 137.2. Neither party made any submissions on the point; and 137.3. It is possible that neither party realised that it was an issue for determination at all.[138]To the extent that I have determined the issue, it would be a judgment that falls to be reconsidered under rule 70 of the Employment Tribunal Rules of Procedure 2013. I propose to reconsider it on my own initiative. Whether revocation is necessary in the interests of justice is a matter that will be considered at a further hearing.[139]If there was a judgment, and if it is revoked, I may take the decision again at the next hearing. This means that the parties must be prepared to address this question: “Was the claimant employed by the old Abbey companies under a contract that was not a contract for services immediately before the transfer of the undertaking from the old Abbey companies to Vedamain Ltd?” Was the claimant a “worker” for the old Abbey companies?[140]I declined to make a decision about whether the claimant was a worker for the old Abbey companies. This is because: 140.1. The issue is almost academic. Regardless of the outcome of that decision, the claim for holiday pay against the old Abbey companies would fail, 23 of 24 because the tribunal has no jurisdiction to consider it. The question may come back into play if the tribunal can consider the claim against Vedamain Ltd for inherited liability under regulation 4 of TUPE. But that depends on the answer to the questions I have summarised at paragraphs 134 to 139 above. 140.2. This is not the ideal case to make a determination of whether the claimant was a worker whilst driving on the app. Such a determination would potentially affect hundreds of other drivers. I have heard from very few of them. Of the witnesses from whom I did hear, much of the evidence was confined to the arrangements for school journeys. 140.3. If it is unavoidable to make that determination, the tribunal will of course do so. But in this case, it may well not be necessary.
Relevant law
[1]The claimant’s application for reconsideration of the employment contract decision is refused.[2]The claimant’s application for reconsideration of the time limit decisions is refused. 1 of 6
Disposal
[1]Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides the tribunal with a general power to reconsider any judgment “where it is necessary in the interests of justice to do so”. The making of reconsideration applications is governed by rule 71.[2]Rule 72(1) states that an employment judge must consider any application made under rule 71. If the judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application must be refused.[3]The overriding objective of the 2013 Rules is to enable the tribunal to deal with cases fairly and justly. By rule 2, dealing with cases fairly and justly includes putting the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the complexity and importance of the issues. The reconsideration grounds[4]The claimant’s reconsideration application runs to 87 paragraphs. It is not proportionate to address each paragraph separately. I have tried to pick out what I consider to be the main points. The employment contract decision[5]The main grounds advanced for reconsidering the employment contract decision appear to be these: 5.1. Ground 1 – “Subservience” – I found (Reasons paragraph 38) that there were substantial restrictions on the claimant’s work through licence conditions. I also found (Reasons paragraph 116) that those restrictions did not satisfy the test of sufficient control, because the restrictions were imposed by the licensing authority and not by the putative employer. The claimant argues that this conclusion was wrong, because there was an implied term in her agreement with the respondents that the claimant would abide by the licence conditions. 5.2. Ground 2 – “Economic Investment” – At Reasons paragraph 118.4, I took into account that the claimant took considerable economic risk, which included investing in a fixed-price asset and paying for her own fuel. I concluded that this feature was inconsistent with a contract of service. The claimant says that this conclusion was wrong, because:(a) Many employees have had to invest in their own higher education to get the job in which they work;(b) People use their own vehicles to drive to and from work and to do work-related duties;(c) The claimant also had to incur expenditure other than vehicle costs; and(d) The claimant did not pay for her own fuel. 5.3. Ground 3 – Treasury Guidance – The claimant asked me to consider the Treasury document entitled: HM Treasury, Guidance for tax assurance process 2 of 6 of public sector appointees July 2019. “Especially Chapter 1 subsection 1.4 and its IR35”.[6]The remaining paragraphs were short points addressing factors alleged to be consistent with employment. Many of these concerned factors that I had already considered in the Reasons. The time limit decisions[7]The reconsideration application appears to raise the following principal grounds for reconsidering the time limit decisions: 7.1. Ground 4 – Ignorance of time limits – I found (Reasons paragraph 129) that it was reasonably practicable for the claimant to present her claim against the old Abbey companies within the statutory time limit. I rejected her argument that it was not reasonably practicable to present her claim before she knew the Supreme Court’s decision in Uber. In her reconsideration application the claimant now advances another reason why it was not reasonably practicable to present her claim within the time limit. This was that she did not know what the time limit was for any claim except unfair dismissal, and believed that time limits would only start to run from when her employment status was confirmed in December 2022. 7.2. Ground 5 – Ignorance of the possibility of a “stay” – At paragraph 129.3, I expressed the view that it would have been reasonably feasible for the claimant to have presented her claim and then to ask for no action to be taken on it until the Supreme Court had handed down its judgment. The claimant now argues that this conclusion was wrong, because she was a litigant in person and did not know about the possibility of a “stay”. Conclusions I take each of the grounds in turn.[9]There is no reasonable prospect of my finding that the licence conditions amounted to control exercised by the respondents. There was no need for the licence conditions to be implied terms of the contract between the respondents and the claimant. Vedamain Ltd and the old Abbey companies could already expect a driver to want to comply with the licensing conditions. A driver would have a powerful incentive to do so, because otherwise they would be at risk of losing their licence.[10]My view remains that the claimant took a degree of economic risk that tended to suggest that she was not employed under a contract of employment. There is no reasonable prospect that the various arguments put forward by the claimant will persuade me otherwise.[11]In particular:(a) There is only limited value in comparing the cost of higher education with the cost of buying a passenger transport vehicle. Some courses, such as accountancy, are highly vocational, but many are gateways to a wide variety of different careers. 3 of 6(b) The claimant cannot realistically compare herself to a commuter. There is a difference between (on the one hand) an employee who spends unpaid time and fuel driving to and from the place where they work, and (on the other hand) a person whose work consists of driving someone in their own vehicle as part of a service.(c) The claimant also incurred other expenses regardless of the amount of paid driving she did. This would, if anything, increase the amount of economic risk she took.(d) The claimant did pay for her own fuel. She was not entitled to claim any additional payment to reimburse her for that expense.[12]The Guidance applies to all central government departments and their arms-length bodies. Other public sector bodies are expected to observe the spirit of the guidance.[13]Paragraph 2.2 of the Guidance states: “The off-payroll working rules (commonly known as IR35) … ensure that, where an individual would have been an employee if they were providing their services directly, they pay broadly the same income tax and [national insurance contributions] as an employee would.[14]Paragraph 2.3 requires all departments to make an assessment of what the employment relationship would be between the client and the worker if an intermediary were not involved.[15]Paragraph 1.4 deprecates explicit tax avoidance measures.[16]The claimant’s point is that Cheshire West and Chester Council (“the Council”) was required by the Guidance to make an assessment of the working relationship between the claimant and the Council, and decide what the relationship would have been had no intermediary been involved. For these purposes, says the claimant, the “intermediary” was Vedamain Ltd. No such assessment was carried out. According to the claimant, the tribunal should infer from the Council’s failure that the claimant was really an employee.[17]I do not think there is any reasonable prospect of this argument succeeding. The fact that the Council did not make an assessment may be consistent with the Council being wilfully blind to an off-payroll employment relationship. But the Council’s omission is at least equally consistent with other possibilities. One of these is that the Council did not think Vedamain was an “intermediary” at all. Another possibility is that the Council did not think that there was any risk that the claimant might be considered to be an employee if she provided her services directly for the Council.[18]The claimant’s main argument at the preliminary hearing was not that she did not know about time limits. Her oral closing arguments were confined to the issue of whether it was reasonably practicable to present her claim before she knew the outcome of Uber’s appeal to the Supreme Court.[19]The claimant gave oral evidence about her knowledge of time limits for bringing claims. She said that she had previously brought a civil claim and that she knew 4 of 6 that most claims had time limits. She said that “at the time” she did not know that the time limit for an employment tribunal claim would be three months, but she was told about the three-month time limit when she contacted ACAS in October 2020. She presented her claim to the tribunal before the Uber Supreme Court judgment was handed down. This was because she knew that there was a three-month time limit for a complaint of unfair dismissal, and if she waited for the Uber judgment, her claim would be out of time. I accept this evidence.[21]In the light of this evidence, I consider that there is no reasonable prospect of the time limit decisions being varied or revoked. This is because: 21.1. I take “at the time” in the claimant’s oral evidence to mean “at the time the old Abbey companies failed to pay holiday pay”, and “at the time of the transfer”. 21.2. At those times, the claimant knew that most claims had time limits. 21.3. It would have been reasonably practicable for her to do some research to find out what those time limits were. She could have got help to use the internet, as the Reasons explain. The three-month time limit would have been easy to find. 21.4. It was reasonably practicable for the claimant to discover that time limits for claims for deductions from holiday pay run from the date that the holiday pay was deducted. It was unreasonable for the claimant to assume that the time limit would only start to run once a tribunal had determined that she was a worker. That does not make sense. If she did not bring a claim, there would be no opportunity for the tribunal to consider her case and make a ruling on it. 21.5. In any case, the reconsideration application does not engage with paragraph 130 of the Reasons. I do not consider the further period to be reasonable for the reasons that are explained in that paragraph.[22]The claimant may well not have heard the word “stay” in connection with tribunal proceedings. The Reasons do not use that word. My finding was not that the claimant could have asked expressly for a “stay”. It was that she could have asked the tribunal not to take action until the judgment was handed down.[23]Even if the claimant’s argument had force, there would still not be any prospect of my varying or revoking the time limit decisions. This is because it would still have been reasonably practicable for the claimant to present her claim before the Supreme Court had handed down its Uber judgment. If she had no concept of a stay of proceedings, and had no idea that tribunals might delay hearings to await the decisions of higher courts, she must presumably have thought that employment tribunals would just get with hearing the cases in front of them, applying the law as it stood at the time. If that is what the claimant thought, there would have been nothing to stop her presenting a claim. The Uber drivers had already won at two different levels of appeal. She would have believed that the tribunal would apply the legal principles that had led the Uber drivers to victory. Disposal[24]The reconsideration application is therefore refused. 5 of 6[25]The common law has long recognised a binary distinction between a “contract of service” and a “contract for services”. See, for example, Market Investigations Ltd v. Minister of Social Security [1969] 2 QB 173, 184-185, approved by the Privy Council in Lee Ting Sang v. Chung Chi-Keung [1990] ICR 409, Express & Echo Publications Ltd v. Tanton [1999] ICR 693. This tends to support the view that a “contract for services”, within in regulation 2, was intended to mean an employment relationship that is not a contract of service.[26]Since the 1981 Regulations were drafted, the law has come to recognise intermediate categories of worker. One is known to employment lawyers as the “limb (b)” worker. The nickname comes from the definition in section 230(3)(b) of ERA (see above). Another category is the wider definition of “employee” in equality legislation, mandated by the European Court of Justice in Allonby v. Accrington & 5 of 8 Rossendale College [2004] ICR 1328, and now found in section 83 of the Equality Act 2010. Recent decisions have confirmed that there is no practical difference between these two types of employment status. See, for example, Bates van Winkelhof v. Clyde & Co LLP [2014] UKSC 32.[27]In my view, the emergence of the “limb (b)” worker does not alter the interpretation of regulation 2. A person may at the same time be employed under a contract for services and be a limb (b) worker within the meaning of section 230(3) of ERA. This is apparent from section 230(3)(b) itself. Subject to the business undertaking exception, an individual comes within the definition by undertaking personally to perform “work or services”.[28]There is a counter-argument that I ought to address. Regulation 2 of TUPE contains the words, “or otherwise”. Those words suggest that a person might be considered under regulation 2 to be an employee, even if their contract was not a contract of service or apprenticeship.[29]This argument needs to be taken seriously. It underpinned the view taken by a differently-constituted employment tribunal that regulation 2 encompasses a wider definition than employees under a contract of employment. (See Dewhurst v Revisecatch Ltd ET Case No 2201909/2018). During the hearing, I asked Mr Ramsbottom if he could think of someone who was neither a limb (b) worker nor a person in a contract of employment, whom regulation 2 was intended to protect. He could not answer.[30]Despite this forensic moment, I remain of the view that it is the narrow interpretation of regulation 2 that should prevail. To come within the definition of “employee” it is not enough to be a limb (b) worker. If the words, “or otherwise” in regulation 2 were intended to widen the definition, it would only be to a very limited extent. In my view, if those words had a purpose, it was to cover people whose relationship with their employer is truly akin to a contract of employment, but who do not technically come within the definition. Persons in Crown employment might be an example.[31]I am reinforced in my view by the wording of regulation 7 of TUPE. It provides that, where any employee of the transferor or transferee is dismissed, “that employee is to be treated for the purposes of Part 10 of [ERA] (unfair dismissal) as unfairly dismissed if the sole or principal reason for the dismissal is the transfer”. This regulation appears to have been drafted on the assumption that an “employee” is a person to whom Part 10 of ERA applies. Part 10 of ERA applies only to employees under contracts of employment. If it had been the legislator’s intention that “employee” in regulation 2 should have a wider definition than that, I would have expected regulation 7 to have been drafted differently. Regulation 7 would need to make clear that the only employees to be treated as unfairly dismissed were those employees to whom Part 10 of ERA applied. Conclusions[32]The starting point for my conclusions is my finding that the claimant was not an employee of Vedamain under a contract of employment.[33]I explained why I had reached that finding in the April reasons: “115. …I start from the agreed position. There was a contract by which the claimant agreed to do regular driving work on a school run in return for 6 of 8 remuneration to be paid by Vedamain Ltd. The parties remained mutually bound by those obligations, subject to the claimant’s entitlement to terminate a regular school run by giving notice to Vedamain Ltd. The notice period was equivalent to what Vedamain Ltd had to give to the local authority. The first requirement of the Ready Mixed Concrete test is therefore satisfied. 116. The next requirement is for there to be a sufficient degree of control. In my view, that requirement was not met. It is true that Vedamain Ltd restricted the claimant’s ability to advertise and to drive for competitors. But restricting competition is only aspect of the kinds of control that employers typically exert over employees. Vedamain Ltd gave the claimant considerable freedom to decide how to provide transport for students. She decided what vehicle to buy. She could choose the route... The claimant had considerable influence (albeit not the final word) over Vedamain Ltd’s choice of Passenger Assistant. There were controls on the claimant’s work, for example, vehicle maintenance requirements, but as I have already explained … this control was exercised by the local authority rather than Vedamain Ltd. 117. I have considered what the position would be if my conclusions about the sufficiency of control are held to have been wrong. In that case, I would have to decide whether the other features of the relationship were consistent with there being contract of employment. 118. I take into account the claimant’s relatively weak bargaining power in the relationship. She had no say in the amount of settle she paid, or the driver’s fee for a school journey. Nevertheless, my decision would be that, looking at the picture as a whole, the claimant was not an employee. Features I have taken into account in coming to that conclusion include the following:118.1 The claimant did not pay PAYE tax or employees’ national insurance contributions. That tax arrangement would undoubtedly have been beneficial for her, because she would only have to pay tax on her profits, rather than on her remuneration from Vedamain. This would mean, for example, that the cost of owning and running her vehicle would be wholly or mainly tax-free. The claimant’s submissions on this point have been directed to the question of whether the tribunal should withhold a remedy on the ground of the parties’ tax evasion. That is a different point entirely. To my mind, the significance of the tax arrangements is not that they were unlawful, but that they shed some light on the true nature of the relationship.118.2 The claimant was consistently described as self-employed. She never suggested that she was an employee.118.3 She was not paid sick leave or holiday pay.118.4 The claimant took the economic risk of investing in a fixed-price asset and paying a fixed amount of settle. She paid for her own fuel. If fuel prices went up, she made less profit; if they went down, she made more profit. These features were inconsistent with a contract of service. 119. The claimant did not therefore have a contract of employment within the meaning of section 230(1) of ERA.” 7 of 8[34]That conclusion, of course, was only about the claimant’s employment relationship with Vedamain Ltd. I can now express my conclusion that the claimant did not have a contract of employment with the old Abbey companies either. There were no facts that would enable me to conclude that the claimant was any closer to being an employee when she drove her taxi for the old Abbey companies than she was when she drove for Vedamain Ltd. The claimant did not suggest that there were any such facts. The features of the relationship after December 2019 that led me to the conclusion that she was not an employee of Vedamain Ltd are all features that existed prior to the transfer.[35]In my view, these features also mean that the claimant was not an employee of the old Abbey companies within the meaning of regulation 2 of TUPE. The claimant was working under a contract for services. She was not employed under a contract of employment. It is not enough that she was a limb (b) worker. As I have stated, my view of the law is that the regulation 2 definition of “employee”, if not strictly confined to employees under contracts of service or apprenticeship, is limited to other relationships that are truly akin to contracts of employment. The claimant’s work for the old Abbey companies did not satisfy that test.[36]Once I had reached that decision, it inevitably followed that regulation 4 of TUPE did not have the effect of transferring the claimant’s employment from the old Abbey companies to Vedamain Ltd. Nor could that regulation cause a transfer to Vedamain Ltd of any liabilities that the old Abbey companies might have had towards the claimant. The claim against Vedamain Ltd for inherited liability of the old Abbey companies therefore had to be dismissed.
Facts
[37]The claimant is a taxi driver. She drives a multipassenger vehicle which she owns. This has been the case for the whole of the time with which this claim has been concerned. The vehicle is fitted with a tail-lift to make it easier to accommodate a wheelchair. She insures the vehicle herself.[38]At the relevant times, the claimant had a private hire driver’s licence, meaning that she was authorised to drive pre-booked passengers for a fare. Her licence conditions were determined by the Licensing Authority. Conditions included:38.1 specification of the vehicle,38.2 maintenance requirements for the vehicle,38.3 restrictions on signage and advertising, 5 of 2938.4 the requirement to keep the vehicle and interior clean and tidy,38.5 prescribed fares to be charged or programmed into the taxi meter.[39]Some drivers (often called “Hackney drivers”) have their own operator’s licence. This means that they can pick up passengers on the street without a booking. The claimant was not a Hackney driver. … 40. …[41]In February 2011, the claimant spoke to Mr Williams with a view to driving in the Chester area. She remained in contact with the Flintshire drivers. 42. …She began working for Abbey Taxis in April 2011.[43]There was no written agreement between the claimant and Mr Williams, or between her and any of the old Abbey companies. The parties’ rights and obligations were determined orally and by custom and practice. In broad terms, the agreement was that:43.1 Abbey Taxis provided the claimant with a radio for her vehicle.43.2 Abbey Taxis agreed to accept private hire bookings under its operator’s licence.43.3 Those bookings would then be allocated to drivers including the claimant.43.4 Passengers generally paid their fare by handing cash to the claimant. When this happened, the claimant was entitled to keep the cash.43.5 The claimant agreed to pay a weekly fee (known as the "settle") to Abbey Taxis.[44]The claimant gave receipts to customers as and when required.[45]Abbey Taxis prohibited drivers from promoting any other taxi business, including any taxi business of their own, either on the livery of their own vehicles or on business cards or receipts handed to passengers.[46]Drivers did not have a minimum number of trips that they were required to do, or a minimum length of time for which they were required to be available for work. They did, however, have a strong economic incentive to be available at peak times and to drive as many trips as they could. This was because they had to pay the same amount of settle, regardless of how much driving they did. 6 of 29 47. …[48]A few years after the claimant started driving for Abbey Taxis, the business started using a smartphone app instead of allocating jobs by radio. Each driver was issued with a company phone with the app pre-installed. Drivers would open the app when they were available to work. The software tracked the physical location of driver’s vehicles and divided them into zones. Each zone had a separate queue of drivers. When a driver reached the front of the queue, the app would send a notification of the next job to that driver. The claimant was given no information at that stage about the number of passengers or what the destination would be. (This changed when the Abbey Taxis business was taken over by Vedamain Ltd.) The driver would then have a few seconds in which to decide whether to accept the trip or not.49. …50. …51. …52. ...[53]Drivers never took paid sick leave. They never took paid annual leave. Certain drivers were treated as being on sick leave or on holiday if they were not available for driving. I do not know one way or the other whether drivers on holiday or sick leave benefited from any reduction in their settle. Drivers did not pay any Pay As You Earn income tax or employee National Insurance Contributions. They described themselves as selfemployed. They were described by Abbey Taxis as self-employed.[54]The old Abbey companies had contracts with local authorities to provide school transport. Here is an overview of the contractual framework. The local authority set up an online portal. Through the portal, private hire operators could tender for a regular school journey (called “the Services”) for a particular child or group of children. The local authority would accept the lowest-priced tender for the Services, creating a contract between the local authority and the operator (called the “Contractor”). The contract was subject to the local authority’s standard terms and conditions.55. … 7 of 2956. ....[57]There was no separate agreement between the driver and the local authority.[58]None of Abbey Taxis’ private hire drivers was required to do school transport work if they did not want to do it. 59. …[60]The claimant was accompanied by the same Passenger Assistant for many years. Her name was Mrs Evans. They worked well together. Mrs Evans had her own local authority badge. The claimant recommended her to Abbey Taxis as the Passenger Assistant for the school runs that she was driving. Ultimately, however, it was for Abbey Taxis to decide who the regular Passenger Assistant should be for each school run. It was also Abbey Taxis’ responsibility to notify the local authority who the regular Passenger Assistant was going to be, in accordance with clauses 5.4.2 and 5.4.2.2 of the standard terms. …61. …62. ....[63]The claimant bought her own fuel and paid her own vehicle maintenance costs. This was the case whether she was driving a school run or driving on the app. 64. ……….[65]Vedamain Ltd bought the Abbey Taxis business in 2019. An asset purchase agreement was concluded on 17 December 2019 between Vedamain Ltd and the old Abbey companies.[66]Schedule 5 of the asset purchase agreement listed 12 employees whose employment would transfer to Vedamain Ltd under TUPE. These employees were all office staff, such as dispatch controllers and telephonists.[67]In a further table (variously described as “Schedule 5 … Part 4” and “Schedule 6”) the asset purchase agreement contained a list of “Self Employed Drivers”. There were approximately 110 drivers in that list. The claimant was one of them. One driver was described as 8 of 29 being on “sick leave”. The table indicated that six other drivers were on “holiday”.[68]The settle fee charged by Vedamain Ltd was £120.00 per week, regardless of how much driving the driver had done.[69]Similarly to the old Abbey companies, Vedamain Ltd did not enter into any written agreements directly with the Abbey Taxis drivers.[70]Following the acquisition by Vedamain, the claimant continued on the same school run as she had done with Abbey Taxis. This was under the same contractual framework as she had driven before. Other than the school journeys, she did not do any other driving for Vedamain. She did not, for example, do private hire driving on the app.[71]What of the 110 or so drivers who had previously been driving for the old Abbey companies? For them, the working arrangements continued more or less as normal. They continued using the same app. Because the Abbey Taxis app was slightly different from the KingKabs app, Vedamain Ltd put some measures in place to harmonise the two platforms. One of these measures was to provide information about the passengers and the destination at the point of first notifying the driver of the trip. In other respects, however, the essential custom and practice remained unchanged. They continued under the same zone and queue system. They continued to pay their settle. They remained forbidden to advertise their own taxi business or any other competitor’s business. They remained at risk of being “switched off” if they were found driving for Uber.[72]Mr Ward was a driver at Vedamain Ltd. He worked on a very similar school run to that driven by the claimant. He described to me the process by which Vedamain Ltd paid the driver. I accepted his evidence as truthful. He gave the example of the claimant’s actual school run. The tender price was £55.00 per trip. That was how much the local authority paid Vedamain Ltd. Of that £55.00 contract price, £40.00 was paid to the driver, £14.00 was paid to the Passenger Assistant and £1.00 was kept by the operator (Vedamain Ltd) as a mark-up. From the driver’s £40.00 was deducted a 6% operator’s commission. This commission did not count towards the £120.00 per week settle, which had to be paid 9 of 29 separately by the driver. There was no room for negotiation between the driver and Vedamain Ltd. The driver’s remuneration package was presented by the operator to the driver as “take it or leave it”.12. We made further findings about the agreement to pay the claimant for school journeys: 12.1. When driving for both Abbey Taxis and Vedamain, the claimant understood that, if she drove school journeys as an Abbey Taxis or KingKabs driver, she would be accepting the fee structure that was on offer. 12.2. On a typical school day, the claimant earned a fee of £80.00 (that is, £40.00 for taking the students to school at the start of the day and a further £40.00 for bringing them home in the afternoon). 12.3. Vedamain invoiced CWCC monthly in arrears for the school contract work done by its drivers. The drivers, by contrast, were paid by Vedamain weekly in arrears. This meant that, in normal times, Vedamain would be temporarily out of pocket whilst it waited for the month to end, and then for CWCC to pay that month’s invoice. This was the rationale explained to the drivers for the 6% commission. 12.4. When the claimant started driving for Abbey Taxis in 2011, the agreed percentage rate of commission was lower than 6%. It is not entirely clear how and when the rate went up, but the evidence was consistent (and we find as a fact) that all school drivers (including the claimant) had accepted the rate rise to 6% by the time of the transfer to Vedamain.13. The vast majority of Vedamain’s drivers were men. None of them, so far as we know, asserted to Mr Thomas that they were employees or workers or entitled to the minimum wage or holiday pay.14. There were approximately 600 drivers doing taxi driving through Vedamain in the Chester area.15. It was fundamental to Vedamain’s business model that drivers were treated as independent contractors. Each driver was regarded as owning their own microbusiness, whose turnover would be unlikely to exceed the Value Added Tax (VAT) threshold. This meant that the drivers did not have to charge VAT on their fares, which would undercut the fares of any VAT-registered taxi business. Vedamain’s business was registered for VAT. In its dealings with (now) His Majesty’s Revenue and Customs (HMRC), Vedamain presented itself purely as a taxi operator. It charged VAT when invoicing CWCC for school journeys. It charged VAT on settle payments from drivers, which would otherwise have been £100.00. VAT from both sources of revenue was declared and paid to HMRC. If Vedamain was found to be in the business of actually transporting private-hire customers through a staff of employed drivers, all that would change. Vedamain would have to declare to HMRC all the fares received by its drivers and pay HMRC 20% of that aggregate sum. That would be a very substantial operating cost for Vedamain, which it would be unlikely to be able to absorb. Some or all of the VAT would have to come out of the driver’s slice of the fare. The amount could not simply be passed onto the customer, because fares were set by the licensing authority. Even if Vedamain could put the fares up, they would be likely to lose business. Passengers might get into a competitor’s taxi, or choose a different means of transport altogether. 10 of 2916. We accept Mr Thomas’ evidence that HMRC had previously investigated Vedamain’s tax affairs and had not raised any concerns.17. In March 2020, the world was in the grip of the COVID-19 pandemic. England began what came to be known as the “lockdown”.18. On 19 March 2020, the Prime Minister announced that all schools would close the following week. Most students in the CWCC area had their final day of school on 20 March 2020 and did not return to school at all until the second half of the summer term.19. From 23 March 2020, members of the public were prohibited from leaving their homes without reasonable excuse.20. The lockdown caused a sharp fall in private taxi journeys and an almost complete cessation of school runs. Through no fault of their own, selfemployed taxi drivers across England found that their income virtually disappeared overnight.21. On 20 March 2020, the Government announced that there would be a job retention scheme, given the title of “Coronavirus Job Retention Scheme”, or “CJRS” for short, and popularly known as the “furlough scheme”. To be eligible under the CJRS, an employer had to have employed its workers on a certain qualifying date. The CJRS was administered by HMRC. Vedamain’s stance in relation to HMRC at that time, and since, was that it did not employ its drivers. On the basis of that position, Vedamain could not claim any furlough pay for its drivers under the CJRS.22. Ineligibility under the CJRS was a serious problem for Vedamain’s drivers. Unless they could find a source of replacement income, they risked severe financial hardship.23. The financial difficulties of the drivers also caused potential problems for CWCC. It had to prepare for the re-opening of schools at some unknown point in the future. They had duty to transport for some children to and from school. If taxi drivers left the industry to find other work, there was a risk that nobody would be available to do the school runs and CWCC would be failing in its duty.24. CWCC’s solution was a scheme that came to be known as the “Covid Retention Fund”, which we abbreviate to “CRF”. This was an emergency response. Its terms were not initially as clear as the drivers hoped. Broadly speaking, the CRF applied to drivers who had been regularly driving school runs prior to the pandemic. These drivers would be on standby and agree to resume school driving work as and when required. Whilst they were on standby, CWCC would make a monthly payment to Vedamain that would go some way to replacing the lost income from the school runs.25. On or about 17 April 2020 Mike Jones at CWCC informed the claimant that there was shortly to be a meeting to take place about the CRF.26. During April 2020, the claimant had a number of conversations with Mr Ward at Vedamain’s office. She made it clear that she believed that the April claim should start getting processed. She also championed the cause of other drivers and of the passenger assistants as well. 11 of 2927. By email on 28 April 2020, Vedamain asked drivers to provide information in support of their claims for CRF payments. The claimant was one of the drivers who responded. As well as providing her driver details, she also indicated that she accepted the terms of the scheme.28. One of the communications from Vedamain included providing a template form which drivers were expected to sign. This included a declaration from the driver that he or she was self-employed. It is hard to understand why Vedamain thought it necessary to require drivers to sign that declaration before becoming eligible for payment under the Covid Retention Fund. Our finding is that Mr Thomas, and others at Vedamain, saw this as an opportunity to reinforce Vedamain’s position that drivers were independent contractors. They wanted to leave no room for doubt in the drivers’ minds that they continued to be self-employed, and to head off any attempt by a driver to rely on the CRF payments as evidence that Vedamain was their employer.29. The way in which Vedamain administered the CRF for its school drivers broadly reflected the agreement under which it paid drivers for school runs. The starting point was that, for each “workable day”, the driver would be paid 2 school journey fees, that is, one for the morning and one for the afternoon. The daily fee would be reduced, as usual, 6% for commission before the flat rate of settle was subtracted.30. There were, however, some differences between CRF payments and the usual payments for school journeys. 30.1. The CRF payment for a non-working school driver was further reduced by a “covid cover work reduction”. This was essentially a redistribution between Vedamain drivers. It is not necessary to explain every detail of the redistribution mechanism. In outline, Vedamain accounted to CWCC for taxi fares earned by its drivers for work other than school journeys (for example, transporting essential workers). CWCC reduced the overall monthly CRF payment by the aggregate of those fares. That reduction was passed onto the school drivers who did no other driving work. The claimant was one of those drivers. For the month of May 2020, that reduction was reflected in further 8% cut in what would otherwise have been the school journey fees net of commission. Drivers who made themselves available for regular driving on the app were not affected by the 8% reduction. This was to compensate them for what could be hours of waiting for a passenger that might never come. People were not, in general, taking taxis to go anywhere. 30.2. The settle was calculated daily at a rate of £24 per day (rather than £120 per week). It was applied after the further 8% reduction had been made. 30.3. Vedamain had to wait until the end of each month before knowing how much of the CRF money CWCC would hold back on account of nonschool driving work. Until they knew what reduction CWCC would make, Vedamain would not know what percentage reduction to pass onto its inactive drivers. To avoid this difficulty, Vedamain decided to pay its drivers monthly, instead of weekly as it had done before. It continued to take its 6% commission out of the school journey fees. 12 of 2931. The claimant received her first CRF payment on 21 May 2020. It covered “April retention pay”. The method of calculation was explained to her in an email dated 3 Jul 2020. For 12 “workable” days, she was paid £960.00 (12 x 2 x £40), less 8% covid cover work reduction and 6% commission, with 11 days’ settle taken off at £24.00 per day. This resulted in a payment of £566.20 for the month.32. Schools in the CWCC area reopened in June 2020. They operated strict COVID protocols. Classes were segregated and divided into “bubbles”. The claimant’s usual school was closed each Wednesday to prepare for a bubble change. On Mondays and Tuesdays, Thursdays and Fridays, the claimant drove the students to and from school as she had done before the pandemic.33. The claimant did not do any driving on the app. This was not a change. Even before the lockdown started, the claimant had not made herself available for general private hire work; indeed, she never did any driving on the app whilst employed by Vedamain. During the pandemic, she had an additional reason not to want to do private hire work. She was worried about the risk of infection with the coronavirus and the danger it would cause to her elderly relatives.34. Whilst all of this was going on, a separate dispute arose between Vedamain and an individual called Mr Fairclough. We do not know the full detail of what Mr Fairclough did for a living, but it appears to be common ground that it included a taxi garage and a taxi hire business. Vedamain recommended to its private hire drivers that they get Mr Fairclough to service and repair their vehicles. If a driver did not have a suitable vehicle of their own, Vedamain would recommend that they hire one from Mr Fairclough. This business relationship went sour in 2020, when Vedamain discovered that Mr Fairclough was hiring taxis out to a competitor. In retaliation, Vedamain instructed its drivers who hired taxis from Mr Fairclough to swap suppliers immediately. Vedamain also required the drivers not to have their cars serviced or repaired at Mr Fairclough’s garage.35. Predictably, Vedamain’s actions caused a great deal of disaffection amongst some Vedamain drivers. After all, it was not their fault that they were caught in the middle of Vedamain’s commercial dispute with Mr Fairclough. Some drivers posted hostile comments on social media. One of them was a man who had been driving on school contracts. We do not know what words he posted. We accept, in broad terms, the claimant’s evidence that the driver’s language was “unpleasant”.36. The claimant says that the driver was “not sacked”. We find that he was not prevented from driving for Vedamain during this dispute. Although we cannot recall this proposition having been put to Mr Thomas, we do not think this omission results in any unfairness. The claimant made this assertion at the start of a four-day hearing. If the driver had been taken off Vedamain’s books in 2020, Vedamain would in all probability have some documentary evidence, either in the form of app records or settle records. It would have been a relatively straightforward exercise for Vedamain to have produced those documents during the hearing had it been Vedamain’s case that the driver’s services had been terminated.37. On 2 July 2020 the claimant e-mailed a written complaint to CWCC. During the days that followed she copied that complaint to a number of different 13 of 29 officers within the council, including the leader of the council, and to two Members of Parliament.38. At no time did the claimant copy her complaint to anybody at Vedamain. When she was asked about this, she explained (truthfully in our view) that she did not want Vedamain to find out that she had made a written complaint to CWCC. This was because she expected that there would be repercussions for her if Mr Thomas knew that she had complained. Whether the claimant was right or wrong to fear repercussions, what is clear to us is that the claimant was not expecting CWCC to forward her complaint on to Vedamain at that time. She had deliberately chosen a method of complaining to CWCC without Vedamain knowing.39. Here are some passages from the claimant’s complaint to CWCC: “Kingkab maladministration is not fulfilling the spirit in which [the CRF] funds were given. It is my understanding it is to help retain the service (drivers, [passenger assistants] and the vehicles) to assist you in your present and future legal obligations. This capability is in serious doubt, the monies are not filtering down to all concerned…I am working for nothing or very little (not the minimum wage) Modern Slavery is illegal in this country, even if you are classed as self-employed. …The Maladministration by Kingkab of [CRF] is at the very least immoral. I will argue and I believe prove, they are possibly discriminative, extortionate, fraudulent and illegal… I have been forced into this position of spokesperson, due to the fact, drivers and passenger assistants… are coming to me asking questions… … Kingkab deduct a commission on all contract/credit work, we the drivers were told, this is the charge they will take by way off an administration fee, for paying the contract payments weekly instead of monthly, this has not been the case with the funds you have been providing, although he still deducts this charge. There is also a Covid charge of at least 10% being deducted, nobody agreed or understands this deduction. I will claim the charge is unlawful as they are administering a financial service to/for a third party, as he claims we are selfemployed (this I dispute) If this is the case they should have a Consumer Credit License, I am not aware they have one, this matter needs investigating. …I will argue Kingkab cannot charge a fee of £120 for a service they are unable to provide. … Kingkab deducted nearly 42% from my £400 a week monies in April, paid on 28/5/20. My may payment was finally paid on 1 July 2020, again unjust deductions have been taken without my 14 of 29 consent, however, drivers not currently working have not received their May pay yet… I believe the law states only NIC, Tax and pension payments can legally be deducted from a persons pay, whatever their status, our status is questionable, especially when we are fulfilling contract work for yourselves. I have concerns, as I believe if our employment is not legal our insurance may be invalid (this was confirmed to me by a barrister and the Financial Conduct Authority). We the drivers and [passenger assistants] do not have a written contract stating clearly of our terms and conditions, the [passenger assistants] are not receiving Holiday pay or pension contributions, and there is no pay slip informing them of their deductions, as is the same for us drivers. … I am using this information as I believe it brings to light the fact that Kingkabs Directors may not be “fit and Proper” people to undertake the responsibility of transporting the public, who may all be considered vulnerable at some time in the course of our business.”40. At the time of sending this complaint to CWCC, the claimant believed that the information in it tended to show: 40.1. that Vedamain was breaching its legal obligation by deducting settle, commission and “Covid charge” from CRF payments to drivers without the drivers’ consent; 40.2. that Vedamain, in the case of commission, was breaching its reciprocal legal obligation to provide weekly payment; and 40.3. that Vedamain was committing a fraud by keeping some of the CRF money for itself rather than paying drivers to be on standby, and that this fraud was a criminal offence a breach of a legal obligation or both.41. It may be that the claimant also believed that the information in her complaint tended to show other breaches of legal obligations, but the claimant did not refer to any such belief when formulating her case as to why the disclosures were protected.42. The complaint was passed to Mr Lee Harrison, a Regional Investigator at CWCC.43. Mr Harrison had some conversations with the claimant over the telephone in early July 2020. During the course of the conversations, the claimant raised further concerns to Mr Harrison. What follows is the gist of what she said: 43.1. She said to Mr Harrison that Vedamain was misclassifying its employees as self-employed drivers. 43.2. She told Mr Harrison that Vedamain was deducting £120 of settle from the CRF payments for a service that was not being provided. 15 of 29 43.3. She mentioned VAT. She explained to Mr Harrison her point of view that Vedamain was effectively charging VAT twice to account customers – once in the fare that was the agreed fee for transporting the customer, and once in the VAT invoice to the customer. 43.4. The claimant also said to Mr Harrison that there had been maladministration, that there was a lack of paperwork or paper trail, and that if Vedamain changed her name or her number there would be little evidence that she worked at Vedamain. The claimant also said that VAT was payable on settle in cash and that invoices and receipts were not issued for settle.44. As well as recording our findings about what the claimant said to Mr Harrison, it is also important for us to be clear about what was not said. In particular: 44.1. The claimant has asked us to make a finding that during her conversations with Mr Harrison, Mr Harrison told her that Mr Thomas had had a conversation with him in which he had said that she was not available for work. We have not made that finding. It was not mentioned in her oral evidence, it was not in her witness statement, there was no document which tended to show that that conversation had taken place and the proposition was not put to Mr Thomas when he was giving his evidence. 44.2. The claimant did not say to Mr Harrison that Vedamain was legally required to issue a VAT invoice each time they collected settle, and she did not tell Mr Harrison that Vedamain were breaking tax laws by not issuing receipts or invoices. Nor did the claimant believe that the information that she was disclosing to Mr Harrison tended to show that such laws had been broken, or were being broken.45. At the time of speaking to Mr Harrison, the claimant believed that what she was telling him tended to show: 45.1. that Vedamain was breaching its legal obligation by pretending that its employees were self-employed, and, in particular, by failing to pay tax and national insurance at source, which she believed employers were legally required to do for their employees; 45.2. that Vedamain was breaching its legal obligation by deducting settle from CRF payments to drivers without the drivers’ consent; 45.3. that Vedamain was committing a fraud by keeping some of the CRF money for itself rather than paying drivers to be on standby, and that this fraud was a criminal offence a breach of a legal obligation or both; and 45.4. that Vedamain was breaching a legal obligation by charging VAT twice for the same fare. (We will return to this belief under the heading of our conclusions.)46. When disclosing the information in her written complaint and in her conversations with Mr Harrison, the claimant believed that she was acting in the public interest. She thought she was complaining on behalf of up to 600 other drivers and passenger assistants as well as on her own behalf. She also believed that she was disclosing the information in the interests of passengers, especially school children. Our conclusion that the claimant thought she was speaking up in the 16 of 29 public interest is reinforced by the fact that, as well as complaining to CWCC, she also sent her complaint to two Members of Parliament. It is also supported by the fact that, over the next few days, the claimant provided specific information to Mr Harrison about another driver who allegedly had not been paid, and obtained permission from a Bulgarian driver to share with Mr Harrison the details of how he had allegedly been treated.47. When sending her 2 July written complaint, and when speaking to Mr Harrison, the claimant believed that Vedamain’s breaches of legal obligation and/or fraudulent activity related to two matters: 47.1. The impact of misusing CRF money on the service of transporting children to and from school. CWCC was legally responsible for transporting certain children to and from school. At any rate, that is what the claimant believed. Here is how the claimant subjectively made the connection between this legal responsibility and the breaches of obligation that she thought she was disclosing. As the claimant saw it, the purpose of the CRF was to preserve the service of transporting children to school as and when needed. The claimant believed that if Vedamain illegally failed to pass on the full payment to drivers under the CRF, there was a risk that drivers would not be available as and when required. If that happened, CWCC would b 47.2. Employees being disguised as self-employed, with consequent nonpayment of tax. CWCC would be aiding and abetting any unlawful breaches of tax obligations by Vedamain if CWCC was paying Vedamain for the work of hidden off-payroll employees and deliberately turning a blind eye to Vedamain disguising their status as self-employment. She formed that view partly based on advice that had been given to her by a barrister. The barrister had told her that if CWCC had paid money to Vedamain in the knowledge that the money would be going towards and unlawful activity, CWCC itself could be considered to have aided and abetted that unlawful activity. She also relied on her own knowledge of a tax rule known to her (and more widely) as IR35. Her understanding of IR35 was that an organisation such as CWCC could not avoid the requirement to pay employees’ tax at source simply because those employees happened to be employed by an intermediary company. She thought of Vedamain as the intermediary.48. The claimant submitted a formal grievance to Vedamain on 18 July 2020.49. The essential points of her grievance were: 49.1. She was an employee or worker, and Vedamain was wrong to treat her as being self-employed; and 49.2. Vedamain was not paying her holiday pay or the National Minimum Wage.50. The claimant’s grievance did not mention that she had made any complaint to CWCC. Nor did it make any reference to her having raised any concerns externally about the way the CRF was being administered or about VAT arrangements.51. The claimant did not do any work for the respondent after 20 July 2020. 17 of 2952. On 20 July 2020, she chased Vedamain for the progress of her grievance. She did not mention her complaint to CWCC in her reminder e-mail.53. The claimant was invited to a meeting on 22 July 2020, the meeting being scheduled to take place later that day. The claimant declined, because she had nobody to accompany her. The meeting was therefore rearranged to 29 July 2020.54. On 23 July 2020, Mr Harrison e-mailed the claimant to inform her that the information she had provided had been forwarded to the Contracts and Licensing Department in order for them to review the circumstances. Mr Harrison added, “I expect this will happen in the next number of weeks. Once this has been completed they will decide if, and what the next action would be and I expect they will update you at that stage.”55. We conclude from the phrase, “next number of weeks” that Mr Harrison was not expecting much to happen in CWCC’s investigation between 23 and 29 July 2020. It would be an odd thing for Mr Harrison to say if, as the claimant contends, CWCC had already approached Vedamain for their comments on the claimant’s complaint, or Mr Harrison believed Vedamain was just about to take that step.56. On 29 July 2020, the claimant met with Mr Thomas. They had never met before. There was no union representative present. Mr Swift joined the conversation at Mr Thomas’ suggestion and with the claimant’s agreement.57. Early in the meeting the claimant explained her point of view that she was employed by Vedamain.58. The claimant did not make her points to Mr Thomas particularly clearly. Her oral evidence to us, which we accept, is that she had “rambled on”. Mr Thomas listened for a time. He then made it clear to the claimant that he was not prepared to entertain the idea that Vedamain drivers were workers or employees and was not prepared to discuss that point any further.59. We were able to make clear findings about what Mr Thomas was thinking at this point in the conversation. That is not to say that we found all of Mr Thomas’ evidence to be reliable. But when it came to Mr Thomas’ motivation for insisting that his drivers were self-employed, we found his evidence to be straightforward and consistent with the surrounding context.60. This is what was going through Mr Thomas’ mind during the meeting. He needed Vedamain’s drivers to be self-employed for his business model to work. He was aware that the Uber drivers had successfully established they were workers in litigation that was at that time subject to appeal. But he thought there were enough differences between his model and Uber’s model to be able to say credibly that his drivers were self-employed. He was worried that if drivers were acknowledged to be workers or employees, Vedamain would fundamentally have to change the way it operated. This was for the reasons we have already described.61. These findings fully explain why Mr Thomas decided to shut down the conversation about the claimant being an employee or a worker. It was nothing to do with the claimant having raised concerns to CWCC about the CRF or VAT or anything else. 18 of 2962. The meeting continued. Somebody in the meeting brought up the CRF. We were unable to find which of the three people in the room instigated this part of the conversation. Whoever raised the subject, it led to the claimant and Mr Thomas exchanging their views. The claimant told Mr Thomas that she thought Vedamain was keeping Covid money for themselves.63. At no point in the meeting did the claimant tell Mr Thomas that she had complained to CWCC. She did not say that she had raised concerns externally about the CRF, VAT arrangements, misclassification of worker status, or anything else.64. Towards the end of the meeting Mr Thomas told the claimant that Vedamain would no longer be making use of her services as a driver. As if to underline the point, he offered the claimant Mr Swift’s assistance in enabling her to get her own operator’s licence so she could continue to do school contracts.65. One of the core disputes in this case is Mr Thomas’ motivation for terminating the claimant’s work for Vedamain. We will return to consider this question when we state our conclusions.66. There is a dispute about whether, during the meeting the claimant behaved in a rude and insulting manner. We prefer the claimant’s evidence in relation to this dispute. The claimant did not say anything in a manner that was rude or insulting. Her words were not offensive. Had the claimant behaved in that way, we would have expected the respondent to have called Mr Swift to give evidence to say so.67. On 27 August 2020, the claimant wrote a letter of claim to Mr Thomas. In a series of 17 bullet points, the claimant listed the legal complaints she was thinking of bringing against Vedamain. About half of them were recognisable as some form of complaint that an employment tribunal could consider. One of these was “automatic unfair dismissal”, which was expressed to be based, in part, on “the Public Interest Disclosure I made [to CWCC].” Another was a complaint of automatic unfair dismissal for asserting a statutory right.68. On 4 September 2020, Mr Ben Thomas, a manager at Vedamain, wrote to Patrick Dooley at CWCC. His e-mail notified CWCC that Vedamain would be returning CRF payments to CWCC in respect of the claimant. Mr Thomas explained the rationale in this way: “We would like to return this money to you as we cannot pay Helen Hughes for it, as she has disputed her employment classification, having worked without a query for the past 8/9 years as a self-employed driver for Abbey Taxis prior to our purchase of it. We arranged a business to business meeting where the situation couldn’t be resolved and we ended our business relationship with her, and we want to return the money.” Relevant law Disclosures qualifying for protection69. By section 43A of ERA, a qualifying disclosure is protected if it is made in accordance with one of a list of sections, including 43C.70. Section 43B of ERA provides, so far as is relevant: 19 of 29 “ (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following: (a)that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, … (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”71. Section 43C provides, relevantly: (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure …(b) where the worker reasonably believes that the relevant failure relates solely or mainly to… (ii) any other matter for which a person other than his employer has legal responsibility, to that other person. 72. A worker may have a reasonable belief that information tends to show that a criminal offence has been committed, even if the worker cannot point to an actual criminal offence that could have been committed on the basis of that information. A worker may form a mistakenly-held, but reasonable, belief about what the criminal law says. Likewise, a worker may have a reasonable belief that information tends to show breach of a legal obligation, without the need for the worker to point to an actual legal obligation that could have been breached: Babula v. Waltham Forest College [2007] EWCA Civ 174.[73]When evaluating the reasonableness of a worker’s belief in what disclosed information tends to show, the tribunal should have regard to the worker’s expertise in the subject, or lack of such expertise: Korashi v. Abertawe Bro Morgannwg University Local Health Board UKEAT 0424/09.[74]What amounts to a reasonable belief that disclosure was in the public interest was considered by the Court of Appeal in Chesterton Global Limited v Nurmohamed [2018] ICR 731. The Court of Appeal considered that a disclosure could be in the public interest even if the motivation for the disclosure was to advance the worker’s own interests. Motive was irrelevant. What was required was that the worker reasonably believed disclosure was in the public interest in additional to his own personal interest. Underhill LJ, giving the leading judgment, refused to define “public interest” in a mechanistic way, based merely on whether it impacted anyone other than the claimant or whether it impacted those beyond the workforce. Rather a Tribunal would need to consider all the circumstances, although the following fourfold classification of relevant factors was potentially a “useful tool”: 20 of 29(a) The numbers in the group whose interests the disclosure served – although numbers by themselves would often be an insufficient basis for establishing public interest;(b) The nature and the extent of the interests affected – the more important the interest and the more serious the effect, the more likely that public interest is engaged;(c) The nature of the wrongdoing – disclosure about deliberate wrongdoing is more likely to be regarded as in the public interest than inadvertent wrongdoing;(d) The identity of the wrongdoer – the larger or more prominent the wrongdoer, the more likely that disclosure would be in the public interest.[75]Tribunals should be cautious about concluding that the public interest requirement is satisfied in the context of a private workplace dispute merely from the numbers of others who share the same interest. In practice, the larger the number of individuals affected by a breach of the contract of employment, the more likely it is that other features of the situation will engage the public interest. Protection from detriment[76]Section 47B(1) of ERA provides: “(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[77]The concept of “detriment” should be construed widely. A detriment is something that could reasonably understood by the worker to put them at a disadvantage: Jesudason v. Alder Hey Children’s NHS Foundation Trust [2020] EWCA Civ 73.[78]An employer’s act, or failure, is done “on the ground that” the worker made a protected disclosure if that disclosure influenced the employer’s motivation to an extent that was more than trivial: NHS Manchester v. Fecitt [2011] EWCA Civ 1190. Burden of proof - detriment[79]Section 48 of ERA provides, relevantly: (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B. …[80]On a complaint under subsection (1A), it is for the employer to show the ground on which any act, or deliberate failure to act, was done. Direct sex discrimination[81]Section 13(1) of EqA provides that a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Sex is a protected characteristic.[83]Section 23(1) of EqA provides, relevantly, 21 of 29 “(1) On a comparison of cases for the purposes of section 13… there must be no material difference between the circumstances relating to each case."[84]Employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it because of the protected characteristic? That will call for an examination of all the facts of the case. Or was it for some other reason? If it was the latter, the claim fails. These words are taken from paragraph 11 of the opinion of Lord Nicholls in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, updated to reflect the language of EqA.[85]Less favourable treatment is “because” of the protected characteristic if either it is inherently discriminatory (the classic example being the facts of James v. Eastleigh Borough Council, where free swimming was offered for women over the age of 60) or if the characteristic significantly influenced the mental processes of the decisionmaker. It does not have to be the sole or principal reason. Nor does it have to have been consciously in the decision-maker’s mind: Nagarajan v London Regional Transport [1999] IRLR 572. Burden of proof[86]Section 136 of EqA applies to any proceedings relating to a contravention of EqA. By section 136(2) and (3), if there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (“A”) contravened the provision concerned, the tribunal must hold that the contravention occurred, unless A shows that A did not contravene the provision.[87]The initial burden of proof is on the claimant: Royal Mail Group Ltd v. Efobi [2021] UKSC 33.[88]In Igen v. Wong [2005] EWCA Civ 142, the Court of Appeal issued guidance to tribunals as to the approach to be followed to the burden of proof provisions in legislation preceding EqA. They warned that the guidance was no substitute for the statutory language:(1) … it is for the claimant who complains of … discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination ... These are referred to below as "such facts".(2) If the claimant does not prove such facts he or she will fail.(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of … discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. 22 of 29(5) It is important to note the word "could" in s. 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw …from an evasive or equivocal reply to a [statutory questionnaire].(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts…This means that inferences may also be drawn from any failure to comply with any relevant code of practice.(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.[89]We are reminded by the Supreme Court in Hewage v. Grampian Health Board [2012] UKSC 37 not to make too much of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. Conclusions – protected disclosures Disclosures qualifying for protection PD1 and PD2[90]We take PD1 and PD2 together. This is because, for both alleged disclosures, the information was allegedly disclosed to the same person in the same series of 23 of 29 telephone conversations. We also consider these two disclosures alongside some information that she additionally disclosed to Mr Harrison, namely that Vedamain was charging VAT twice to account customers on the same fare.[91]In the claimant’s favour, we consider what she thought this information cumulatively tended to show.[92]The e-mail of 2 July 2020 did not disclose the information in PD1 or PD2.[93]The claimant orally disclosed information to Mr Harrison at CWCC.[94]The gist of the information was that Vedamain was collecting settle from drivers without issuing invoices or receipts, and that there had been “maladministration” which included the lack of a paper trail.[95]She did not say, expressly, that Vedamain was not keeping VAT records.[96]The claimant did not believe that this information tended to show that Vedamain had committed a criminal offence or that Vedamain had breached a legal obligation. See our finding at paragraph 44.2.[97]In any case, we would find that, if the claimant did believe that this is what the information tended to show, such a belief would not have been reasonable. Context is important here. So is the claimant’s knowledge of the industry. She knew that she was not registered for VAT. Nor were most taxi drivers, and the claimant must have known that, too. She knew that it was not compulsory for her or other drivers to obtain a written receipt for her settle payments to Vedamain. She knew, of course, that Vedamain would be required to keep their own records of how much settle they had collected, otherwise Vedamain would not know how much VAT to pay on that settle when they submitted their VAT return to HMRC. But that is all Vedamain was required to do. Vedamain did not need to give anything to the drivers. Any reasonable person in the claimant’s position would have known that.[98]We have considered whether the claimant also believed that the information tended to show a breach of legal obligation when combined with the information that Vedamain was charging VAT twice. We did not make a finding either way. This is because, if the claimant did believe that she was disclosing a breach of a legal obligation, that belief would not have been reasonable. What she was saying did not make sense. The only account work that the claimant did was for CWCC. Vedamain’s invoices to CWCC were for the contract price (£55.00 in her case) plus VAT. The contract price did not already include VAT, and the claimant did not have any reason to think that it did.[99]PD1 and PD2 therefore did not qualify for protection. PD3[100]The e-mail of 2 July disclosed information that Vedamain was keeping CRF money for itself instead of allowing it to “filter down” to the drivers for whom it was intended. As a generalisation, the e-mail described this practice as “fraudulent”. It specifically informed the reader that one of the ways in which Vedamain was retaining CRF money was by means of a deduction of commission for a weekly payment facility that it was not providing. According to the e-mail, another means by which Vedamain were allegedly keeping CRF money was by making a deduction of settle and an opaque COVID charge without the drivers’ agreement. 24 of 29[101]We have found at paragraph 40 that the claimant believed that this information tended to show that Vedamain was breaching its legal obligations by making unauthorised deductions from wages and/or breaching its contract with drivers and/or committing the criminal offence of fraud.[102]In our view, it was reasonable for the claimant to believe that this is what the information tended to show. Viewed objectively, her e-mail provided enough detail to explain to CWCC what was wrong with Vedamain’s making of deductions, and how that was fraudulent or unlawful.[103]The claimant also disclosed substantially the same information orally to Mr Harrison. At paragraphs 45.2 and 45.3 we recorded our finding that the claimant believed this information also tended to show that Vedamain was breaching its legal obligations and/or had committed a fraud.[104]For the same reasons as we have given in relation to the 2 July e-mail, we consider that the claimant’s belief was reasonable.[105]Our finding at paragraph 46 is that the claimant believed that she was making these disclosures in the public interest.[106]In our view, it was reasonable for the claimant to hold this belief. This is because: 106.1. Vedamain was an organisation of substantial size – although it had relatively few employees, Vedamain had approximately 600 drivers working for the company; 106.2. the claimant correctly believed she was speaking up on behalf of other drivers and passenger assistants, and demonstrated that she was doing so by providing information to assist other drivers in their disputes; 106.3. she reasonably believed that her disclosure involved the misuse of public funds; and 106.4. she reasonably believed that the failures that she was exposing could have an impact on the ability of CWCC to ensure that children were taken to and from school. PD3 therefore qualified for protection. PD4[108]The claimant orally disclosed information to Mr Harrison that Vedamain were wrongly classifying drivers as being self-employed.[109]We have found at paragraph 45.1 that the claimant believed that this information tended to show a breach of a legal obligation to pay tax and national insurance at source.[110]We did not make a finding either way about whether the claimant spelled this tax irregularity out to Mr Harrison. Nevertheless, we have concluded that it was reasonable for the claimant to believe that the information she disclosed tended to show a breach of tax obligations. Even if she thought she was merely implying it (rather than expressly saying so), it would be reasonable for her to think that such an implication was obvious from what she was saying. Everyone concerned with the industry, including the claimant and Mr Harrison, must have known that employers were required to pay tax and national insurance at source on their 25 of 29 employees’ wages. They would also know that one of the main consequences of wrongly calling someone self-employed would be an unlawful failure to pay national insurance.[111]Just as a reminder, the reader is referred paragraph 46 for the claimant’s subjective belief that she made her disclosures in the public interest. Her belief was reasonable. This is partly for the reasons we have already given. It is also for a further reason that is specific to PD4. Non-payment of tax and national insurance affects the public, as well as the employer and employee concerned.[112]PD4 was therefore a qualifying disclosure. In accordance with section 43C[113]Not all qualifying disclosures are protected. The claimant must also show that PD3 and PD4 were made in accordance with section 43C(1)(b)(ii) of ERA.[114]The starting point is the “matter” to which the claimant believed the relevant failures (that is, the perceived fraud and breaches of legal obligation disclosed in PD3 and PD4) related. We have found (at paragraph 47) that there were two such matters in her mind: 114.1. Risk to the service of transporting children to and from school; and 114.2. The non-payment of tax on the wages of disguised employees doing work on CWCC’s behalf[115]We found in that paragraph that the claimant believed that CWCC was legally responsible for those two matters.[116]In our view, that belief was reasonable. It does not have to be correct. Regardless of the strict legal position, most people would think that an education authority has some legal responsibility for ensuring that school-aged children can get to and from school, particularly so when the students are wheelchair users. As for the legal responsibility of CWCC to avoid disguised off-payroll employees, the claimant’s view was consistent with published guidance and was supported by legal advice that she had received.[117]Also at paragraph 47 is our finding about how, in the claimant’s mind, those two matters were related to the relevant failures. Now we must examine her belief objectively and ask whether it was reasonable or not. Again, it does not matter whether or not the relevant failures and the matters actually were related.[118]In our view, the claimant’s belief was reasonable. She made a logical connection between underpaying workers (on the one hand) and the lack of availability to provide the service (on the other). She also connected, reasonably, Vedamain’s breaches of tax obligations caused by misclassification of employment status (on the one hand) and CWCC’s own perceived reliance on the work of disguised employees.[119]PD3 and PD4 were therefore protected disclosures. Conclusions - detriments Detriment 1 - Termination of contract[120]Having found that the claimant made two protected disclosures, we must now decide whether either of those disclosures motivated Mr Thomas to terminate the 26 of 29 claimant’s contract on 29 July 2020. It is for Vedamain to prove that the disclosures did not influence his decision in any significant way.[121]Our finding is that PD3 and PD4 did not in any way motivate Mr Thomas’ decision. Here are our reasons: 121.1. We were able to make a positive finding about Mr Thomas’ reason for dispensing with the claimant’s services. It was because the claimant had raised a grievance asserting her status as an employee, asserting her right to be paid holiday pay and claiming entitlement to the National Living Wage. 121.2. Our finding about Mr Thomas’ true reason is based partly on the undeniable importance to him that drivers should be acknowledged to be selfemployed. By claiming to be an employee, the claimant had made a direct challenge to Vedamain’s fundamental business model. Mr Thomas could not tolerate the notion of having drivers as employees. If he continued to allow the claimant to work for Vedamain whilst openly describing herself as an employee, other drivers might assert their status, too. 121.3. Our finding is also based on Vedamain’s e-mail of 4 September 2020. We found it to be revealing and truthful as to the reason why the claimant’s contract was terminated. We have considered the possibility that Ben Thomas may have deliberately misled CWCC about Vedamain’s reason for termination. We came to the conclusion that this possibility was unlikely. The purpose of the e-mail was not to defend a whistleblowing claim. The explanation of the reason for termination was incidental to the main purpose of the e-mail, which was to explain to CWCC why Vedamain was returning some of the CRF money. In reaching this view, we have not forgotten that, by 4 September 2020, Vedamain had received a letter of claim, indicating that the claimant was considering bringing a whistleblowing complaint. But we do not think Ben Thomas’ e-mail was prompted by the letter of claim. Significantly, in our view, the letter of claim also included a proposed complaint of unfair dismissal for asserting a statutory right. Here, in his 4 September 2020 e-mail, was Ben Thomas confessing that the claimant’s contract had been terminated for asserting that she was an employee. If Vedamain had intended the e-mail to be used as misleading evidence to defend a future claim, I would not have expected it to contain an admission like that. 121.4. At the time of the meeting on 29 July 2020, Mr Thomas did not know that the claimant had made any complaint to CWCC, whether about the failings disclosed in PD3 or PD4 or anything else. As it happens, Mr Thomas told us that he had been unaware of the complaint. We did not take that denial at face value; he had a powerful incentive to deny all knowledge. The real difficulty for the claimant, though, is that there is no evidence from which we could reach the opposite conclusion. 121.5. The claimant says that we can conclude that Mr Thomas knew about her complaint to CWCC from the following:(a) Her oral evidence about conversations she had with Mr Ward in April 2020;(b) Her assertion that Mr Harrison told her in July 2020 that he had had a conversation with Mr Thomas; 27 of 29(c) Mr Ward’s oral evidence at the preliminary hearing in December 2019 that the claimant had made a complaint; and(d) Her assertion that it was “well known that I had made a complaint”. 121.6. The evidence summarised at paragraph (a) above gets the claimant nowhere. Nothing the claimant said in April 2020 could have caused Mr Thomas to know that the claimant had made a complaint at the beginning of July 2020. The claimant cannot rely on her assertion at paragraph (b) because of our finding at paragraph 44.1. We checked our employment judge’s notes of the December 2019 preliminary hearing. This was to check whether the claimant’s point at paragraph (c) had any force. We were looking to see if Mr Ward gave any oral evidence that he (or anyone else) knew that the claimant had complained to CWCC, or that the claimant had complained to anyone about misuse of the CRF or about tax arrangements. There is no note of him having given any such evidence. To clarify the claimant’s generalised assertion at (d), our employment judge asked the claimant who knew and when. The claimant was unable to answer, except to remind us that she had complained about the plight of the drivers in April 2020.[122]For these reasons we find that Vedamain did not contravene section 47B of ERA when it terminated the claimant’s contract. As a complaint, Detriment 1 fails. Detriment 2 – refusal to discuss employment status[123]Mr Thomas subjected the claimant to a detriment at the 29 July 2020 meeting by refusing to discuss her employment status. She reasonably understood the refusal to be detrimental to her: as far as she was aware, she was at a meeting to discuss her grievance, which was based on the central premise that she was an employee.[124]Her complaint nonetheless fails. The claimant cannot get around our finding at paragraph 61. Mr Thomas’ decision to curtail further discussion of employment status was not in any way influenced by the fact that the claimant had made a protected disclosure. Vedamain proved to us that the overwhelming reason was the importance of self-employed status to its business model.[125]Having also reached a conclusion on Detriment 1, we should add that the Detriment 2 complaint would also fail on the ground that Mr Thomas did not know that the claimant had made any complaint to CWCC. Conclusions – direct sex discrimination[126]The central question in this complaint of sex discrimination, as we identified at the start, is, “What is the reason why the claimant’s contract was terminated on 29 July 2020. Was it because she is a woman?”[127]Before engaging directly with that question, we first address another element of the statutory test. Did Vedamain treat the claimant less favourably than it treated others? For the purposes of this comparison, we must ensure that the circumstances of the “others” were not materially different from those of the claimant.[128]The claimant says that she was treated less favourably than the school contract driver who posted an “unpleasant” social media comment in the course of the dispute with Mr Fairclough. Her contract was terminated and his was not. In our view, that driver’s circumstances were materially different from the claimant’s 28 of 29 circumstances. One difference, from what we know, is that he was not alone in posting negative comments about KingKabs. If Mr Thomas had terminated that driver’s contract, he risked escalating his dispute with the other drivers, too. There is another important difference in circumstances. What the male driver did was quite different from what the claimant had done. The claimant had directly challenged Vedamain’s business model in a way that Mr Thomas could not tolerate. That was more serious than posting an unpleasant comment on Facebook.[129]This brings us to the reason why the claimant’s contract was terminated. The claimant has not proved any facts from which we could conclude (even in the absence of an adequate explanation) that Mr Thomas’ decision was motivated by her sex. She was in a male-dominated industry, but that does not shift the burden. It ignores an important fact which strongly suggests that she was dismissed for a different reason, namely the fact that she had asserted that she was an employee and was not prepared to accept Vedamain’s position that she was self-employed.[130]In case we are wrong about that, we find that Vedamain has proved that the decision to terminate her contract was nothing to do with the fact that she was a woman. As we have found, Mr Thomas made his decision because the claimant was asserting that she was an employee.[131]Vedamain did not, therefore, discriminate against the claimant because of her sex. The TUPE reconsideration application is refused.[2]The detriment reconsideration application is refused.[3]The sex discrimination reconsideration application is refused.
Disposal
[1]In an effort to achieve consistency with other judgments and reasons: 1.1. Clakim Ltd, Janbar Mg Ltd and Kajoliea Ltd are referred to as “the old Abbey companies”; 1 of 11 1.2. the respondent is still referred to as “Vedamain”, despite its company name having changed to KingKabs Ltd 1.3. “CWCC” is Cheshire West and Chester Council. Relevant procedural history[2]The claimant presented her claim on 19 November 2020. Her claim form was accompanied by a document headed, “ET1 Grounds of Complaint”. Under the heading, “My Public Interest Disclosure”, the claimant stated, “I put my concerns in writing to the local licensing authority and the local MPs”.[3]Elsewhere in her ET1 Grounds of Complaint, the claimant stated that she had raised a grievance, following which she had been dismissed. The relevance of the grievance became clear under the heading, “Automatic Unfair Dismissal”. Her case, as it appeared there, was that she was an employee who had been dismissed for raising a grievance which asserted a statutory right. Dismissal of an employee for that reason is automatically unfair under section 104 of the Employment Rights Act 1996 (“ERA”). She also claimed that it was unfair for Vedamain to dismiss her for making a protected disclosure, without adding any further detail about the person or organisation to whom that protected disclosure had been made.[4]The case came before Employment Judge Doyle at a preliminary hearing on 23 September 2021. According to EJ Doyle’s Case Management Summary, the complaints and issues had not yet been “identified and defined exclusively”. EJ Doyle decided that, before the issues were clarified, there should be a preliminary hearing to decide issues of employment status. Some preliminary observations were recorded by EJ Doyle about how he understood the claimant was putting her case. This included the following paragraph: “Just to complete the picture, the claimant says that she made a public interest disclosure regarding [Vedamain] in or about July 2020. That public interest disclosure was made at least to Cheshire West and Chester Council (and possibly to [Vedamain]). Again, I make no findings of fact.”[5]Any reader of this order would think that there was an important step in the litigation that still remained to be carried out. The claimant would need to say what her protected disclosures were and identify the people or organisations to whom she had made them.[6]The employment status issues, and other preliminary issues, eventually came to a preliminary hearing in public. It took place from 19 to 21 December 2022. At the conclusion of that hearing I orally announced my judgment that the claimant was a worker for Vedamain. Another decision I announced was that the claimant had not been employed by Vedamain under a contract of employment. This latter decision has come to be known as “the employment contract decision”. Judgment recording the employment contract decision was sent to the parties on 10 January 2023. Written reasons were sent to the parties on 3 April 2023. I have previously referred to these reasons as “the April reasons” and will carry on using that terminology.[7]One of the consequences of the employment contract decision was that the claimant could not bring any kind of complaint of unfair dismissal. As the employment contract decision made clear, all complaints of unfair dismissal had to 2 of 11 fail, regardless of whether the dismissal was alleged to have been unfair under section 103A of ERA or any other section. The judgment sent to the parties on 10 January 2023 accordingly dismissed that complaint.[8]On 5 January 2023, the claimant applied to amend her claim. She asked to introduce a complaint that Vedamain had subjected her to a detriment contrary to section 47B of ERA. She also applied to join CWCC as a respondent. Her application said this about her protected disclosure: “My disclosure was made to [CWCC] as the Client of [Vedamain] to whom I was supplied to perform their work.”[9]The claimant also applied for reconsideration of the employment contract decision. By a further judgment sent to the parties on 8 June 2023, I refused the claimant’s application. I will refer to this decision as “the employment contract reconsideration refusal”.[10]The employment contract reconsideration refusal was accompanied by written reasons. Relevantly, the written reasons stated: “ [Subservience] 10. There is no reasonable prospect of my finding that the licence conditions amounted to control exercised by the respondents. There was no need for the licence conditions to be implied terms of the contract between the respondents and the claimant. Vedamain Ltd and the old Abbey companies could already expect a driver to want to comply with the licensing conditions. A driver would have a powerful incentive to do so, because otherwise they would be at risk of losing their licence. [Economic risk][11]My view remains that the claimant took a degree of economic risk that tended to suggest that she was not employed under a contract of employment. There is no reasonable prospect that the various arguments put forward by the claimant will persuade me otherwise. In particular:(a) There is only limited value in comparing the cost of higher education with the cost of buying a passenger transport vehicle. Some courses, such as accountancy, are highly vocational, but many are gateways to a wide variety of different careers.(b) The claimant cannot realistically compare herself to a commuter. There is a difference between (on the one hand) an employee who spends unpaid time and fuel driving to and from the place where they work, and (on the other hand) a person whose work consists of driving someone in their own vehicle as part of a service.(c) The claimant also incurred other expenses regardless of the amount of paid driving she did. This would, if anything, increase the amount of economic risk she took. 3 of 11(d) The claimant did pay for her own fuel. She was not entitled to claim any additional payment to reimburse her for that expense.” 11. In the meantime, a preliminary hearing took place on 5 June 2023. One of the purposes of the preliminary hearing was to consider the claimant’s application to amend her claim by introducing complaints of whistleblowing detriment, contrary to section 47B of ERA. I granted that application in part. For the purpose of making that decision it was important to clarify the protected disclosure that the claimant claimed to have made. That exercise was also important for onward case management, as this recitation of the procedural history has already foreshadowed. We discussed what the claimant’s protected disclosure was. I recorded it in the schedule to a case management order sent to the parties on 8 June 2023. Relevantly, the schedule read: “The claimant says that she made a protected disclosure by sending an e-mail to [CWCC] between 2 and 6 July 2020.”[12]The schedule did not make any reference to any alleged protected disclosure to Vedamain, either in the claimant’s grievance or otherwise. This is because the claimant did not suggest during the preliminary hearing that she had made any such disclosure.[13]A further issue arose for decision at the 5 June 2023 preliminary hearing. This was whether Vedamain had inherited the liability of the old Abbey companies to the claimant for historic unauthorised deductions from wages and failure to pay holiday pay. In turn, that issue depended on whether the old Abbey companies’ liability had transferred to Vedamain under regulation 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). For that to happen, the claimant would have needed to be an “employee” of the old Abbey companies within the meaning of regulation 2 of TUPE.[14]At the preliminary hearing I announced my decision that the claimant was not an employee of the old Abbey companies, as defined by regulation 2, and that liability therefore had not transferred to Vedamain. That was the TUPE judgment. It was[15]Written reasons (“the TUPE Reasons”) followed on 21 July 2023. At paragraph 33, the TUPE Reasons rehearsed the employment contract decision and the relevant passages of the April reasons that supported it. At paragraph 34 of the TUPE Reasons I added: “34. That conclusion, of course, was only about the claimant’s employment relationship with Vedamain Ltd. I can now express my conclusion that the claimant did not have a contract of employment with the old Abbey companies either. There were no facts that would enable me to conclude that the claimant was any closer to being an employee when she drove her taxi for the old Abbey companies than she was when she drove for Vedamain Ltd. The claimant did not suggest that there were any such facts. The features of the relationship after December 2019 that led me to the conclusion that she was not an employee of Vedamain Ltd are all features that existed prior to the transfer.”[16]As stated above, the claimant then made her TUPE reconsideration application on 4 August 2023. 4 of 11[17]The final hearing took place from 4 to 7 July 2023 before me and two non-legal members.[18]During the final hearing we returned to the issues that we would have to decide. This included discussions about what protected disclosures the claimant was saying she had made. The fruits of those discussions are recorded in paragraphs 5 and 6 of the Detriment and Sex Discrimination Reasons (see below). The claimant successfully asked to amend her claim to introduce a further alleged protected disclosure, which she said she had made orally to an employee of CWCC. She clarified that she was not relying on any protected disclosure that she had made to Members of Parliament. At no stage during the final hearing did the claimant suggest that she had made a protected disclosure to Vedamain, either by raising a grievance or otherwise.[19]I announced our unanimous judgment at the conclusion of the hearing. This included the detriment judgment and the sex discrimination judgment, both of which were sent to the parties on 13 July 2023. The claimant requested written reasons. On 11 September 2023 the written reasons were sent to the parties. I will refer to them as “the Detriment and Sex Discrimination Reasons”, since they were both set out in the same document.[20]At paragraph 67 of the Detriment and Sex Discrimination Reasons, we observed that, prior to presenting her claim, the claimant had sent Vedamain a letter of claim. Its contents were described thus: “67. In a series of 17 bullet points, the claimant listed the legal complaints she was thinking of bringing against Vedamain. About half of them were recognisable as some form of complaint that an employment tribunal could consider. One of these was “automatic unfair dismissal”, which was expressed to be based, in part, on “the Public Interest Disclosure I made [to CWCC].” Another was a complaint of automatic unfair dismissal for asserting a statutory right.”[21]The claimant made her detriment reconsideration application and sex discrimination reconsideration application before the Detriment and Sex Discrimination Reasons had been sent to the parties.[22]The claimant has also appealed to the Employment Appeal Tribunal against various decisions, including the TUPE judgment.
Relevant law
[23]Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides the tribunal with a general power to reconsider any judgment “where it is necessary in the interests of justice to do so”. The making of reconsideration applications is governed by rule 71.[24]Rule 72(1) states that an employment judge must consider any application made under rule 71. If the judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application must be refused.[25]The overriding objective of the 2013 Rules is to enable the tribunal to deal with cases fairly and justly. By rule 2, dealing with cases fairly and justly includes putting the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the complexity and importance of the issues. 5 of 11[26]A tribunal must not adjudicate on a claim that is not before it: Chapman v. Simon [1993] EWCA Civ 37.[27]In Chandok v. Tirkey UKEAT0190/14, Langstaff P observed:17. ….Care must be taken to avoid such undue formalism as prevents a Tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. ...18. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a Tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the Tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.[28]In Ali v. Office for National Statistics [2005] IRLR 201 the Court of Appeal emphasised that, in deciding whether a particular complaint has been raised in a claim form, the tribunal should examine the document as a whole. Merely ticking a box alleging discrimination by reference to a protected characteristic may not be sufficient to raise a complaint of such discrimination if the underlying facts cannot be ascertained from the narrative.[29]In Amin v Wincanton Group Ltd UKEAT/0508/10/DA, HHJ Serota QC distinguished between a claim that is “pleaded but poorly particularised” and a Chapman v. Simon case, where the complaint is not pleaded at all. In the former case, the claimant is not required to amend the claim. The lack of proper particulars does not affect the tribunal’s jurisdiction. The remedy in an appropriate 6 of 11 case would be to strike out the relevant part of the claim. It is, HHJ Serota observed, “clearly undesirable that important issues in Employment Tribunal proceedings should be determined by pleading points”.[30]In relation to unrepresented claimants, tribunals must not be overly technical in their application of the Chandok approach. Where the claim form is capable of being read as including allegations (for example of constructive dismissal, or of dismissal on a different day), and the parties have attended the hearing prepared to deal with those allegations, the tribunal should ordinarily permit those allegations to be argued (Aynge v. Trickett t/a Sully Club Restaurant UKEAT/0264/17 at paras 10 and 13). If the claim form cannot bear that interpretation, consideration should be given to an amendment (para 14).[31]The claim form should not be interpreted in a vacuum. When deciding what complaints it raises, the tribunal is entitled to have regard to any clarification provided by the claimant at a subsequent preliminary hearing: MacFarlane v. Commissioner of Police for the Metropolis [2023] EAT 111. The reconsideration grounds[32]The TUPE reconsideration application runs to 52 paragraphs.[33]Between them, the detriment reconsideration application and the sex discrimination reconsideration application consist of 18 paragraphs.[34]As I did in the employment contract reconsideration refusal, I have avoided a lineby-line response to the claimant’s applications. In the interests of proportionality, I have looked for the claimant’s main points in each reconsideration application and focused my analysis on those points. The TUPE reconsideration application[35]The claimant’s essential arguments in the TUPE reconsideration application appear to be: 35.1. Ground 1 – Error of law. At the heart of the TUPE judgment was my decision on a disputed interpretation of regulation 2 of TUPE. Who is an “employee” within the meaning of that regulation? To qualify, must they be employed under a contract of employment, as defined in section 230(2) of the Employment Rights Act 1996 (“ERA”)? Or is it sufficient for them to be a “worker” within the meaning of section 230(3)(b) of ERA? In TUPE Reasons paragraphs 27 and 30, I set out my answer to that question. Being a worker is not enough. To be an “employee” in the Regulation 2 sense, a person must be employed under a contract of employment, or in an employment relationship that is truly akin to a contract of employment. The claimant says I got the law wrong. At paragraph 12 of the TUPE reconsideration application, she maintains her argument that a worker is an employee within the meaning of regulation 2. 35.2. Ground 2 – Contract of service. The claimant makes numerous points in an effort to persuade me that she was employed by the old Abbey companies under a contract of service, both whilst doing private hire driving on the App, and also whilst doing school contract driving. These points include:(a) The “Miscellaneous Act 1976” (which I take to be the Local Government (Miscellaneous Provisions) Act 1976) provides that a contract for hire of a private hire taxi is deemed to have been made 7 of 11 between the passenger and the operator; therefore private hire drivers do not contract with the passenger;(b) she did not pay for her own fuel;(c) she had to comply with “stringent conditions” in her private hire licence;(d) she could not negotiate fares; and(e) there were restrictions on her freedom to choose how she took children to and from school. The detriment reconsideration application[36]Paragraph 6 of the detriment reconsideration application states: “I concede I could not prove, although I believe on the balance of probabilities the Respondent Knew about my written disclosure to the Cheshire West and Chester Council, however I believe due to the Formal Grievance letter that fact is immaterial if the tribunal was to accept the Formal Grievance Letter as a Publc Interest Disclosure.”[37]That paragraph appears to summarise the points made by the claimant in paragraphs 1 to 5 of the detriment reconsideration application. The thrust of her argument is that, even if Vedamain did not know the claimant had made a protected disclosure to CWCC, her detriment complaint should nonetheless succeed, because Vedamain knew that she had made a protected disclosure in her grievance.[38]I have identified this point as “Ground 3 – grievance was a protected disclosure.” The sex discrimination reconsideration application[39]The 8 paragraphs of the sex discrimination reconsideration application can, I think, be distilled into these grounds: 39.1. Ground 4 – Error in defining comparator’s circumstances. The claimant says that her circumstances and those of her male comparator were the same, in that both she and her comparator had done something potentially harmful to the respondent’s business, and we were wrong to find that their circumstances were materially different. 39.2. Ground 5 – Facts supporting inference of discrimination. The claimant has highlighted facts which she says we ought to have taken into account and from which (says the claimant) the tribunal could conclude that the claimant’s contract was terminated because she is a woman. Conclusions[40]I take each of the grounds in turn. Ground 1 – Error of law[41]There is no reasonable prospect of my changing my mind about the law. I think my interpretation of regulation 2 of TUPE is correct. If I have got it wrong, the Employment Appeal Tribunal will say so. Ground 2 – Contract of service 8 of 11[42]This reconsideration ground wears the clothes of a fresh reconsideration application engaging with a new and different judgment. Underneath the disguise, however, it is in reality a second challenge to the employment contract decision. Whilst the employment contract decision concerned employment with Vedamain, it had equal force when considering the employment relationship with the old Abbey companies (see the TUPE Reasons at paragraph 34, set out above).[43]Consistently with the claimant’s position throughout these proceedings, the TUPE reconsideration application appears to advance the same composite argument that both the old Abbey companies and Vedamain employed her under a contract of employment. There is no attempt to mark the old Abbey companies out as a special case. She does not identify any particular feature of the driving arrangements with the old Abbey companies that could make it any more likely that she was an employee of the old Abbey companies than she was an employee of Vedamain.[44]I have considered the claimant’s supporting arguments which I have summarised in paragraphs (a) to (e). They appear to be substantially the same as the ones she advanced in her application for reconsideration of the employment contract decision. I engaged with them in the employment contract reconsideration refusal and there is no reasonable prospect that my decision would be any different now.[45]I have not so far dealt with the claimant’s argument about the effect of the Local Government (Miscellaneous Provisions) Act 1976. It gets the claimant nowhere. I have already found that the claimant had a contract with Vedamain and, before that, with the old Abbey companies. That was a step towards my conclusion that the claimant was a worker. It was never part of the employment contract decision that the claimant contracted directly with passengers. Nor was it part of my decision that she contracted direction with CWCC for school runs. Ground 3 – grievance was a protected disclosure[46]The tribunal could not have found that Vedamain was motivated by any protected disclosure in the claimant’s grievance. It was not part of the claimant’s case. Properly interpreted, the claim form alleged that the claimant had made a protected disclosure to CWCC and not to Vedamain. That interpretation is not only the most natural reading of the ET1 Grounds of Claim, but it is also consistent with what the claimant wrote in her letter of claim and her amendment application on 5 January 2023. Consistently with MacFarlane, the tribunal can also have regard to what the claimant said to clarify her claim at subsequent preliminary hearings. EJ Doyle thought there might possibly have been an alleged protected disclosure to Vedamain, but he expressly stated that he was not trying to define the complaints and issues with precision. The more reliable guide is what the claimant told me at the preliminary hearing on 5 June 2023, and what she said at the final hearing. She was quite clear: her protected disclosures were only to CWCC.[47]In theory, a party can obtain permission to amend their claim even after judgment has been sent to the parties. There is no reasonable prospect of that happening in this case. The balance of disadvantage would inevitably favour refusing the amendment. Witness statements were prepared on the clear understanding that the claimant’s alleged protected disclosure was to CWCC and not to Vedamain. The oral evidence was presented to us on that understanding, too. There were no questions from Vedamain’s representative to the claimant about what she thought the information in her grievance tended to show. Mr Thomas was not asked about 9 of 11 any particular information in the grievance that allegedly motivated him to dismiss the claimant. It would not help to achieve the overriding objective for there to be a further hearing to elicit oral evidence on these matters. This claim is already three years old. The fact of judgment having been given is also a significant factor. Since the final hearing in July, Mr Thomas could reasonably have expected not to have to give evidence in this case again. All parties would naturally have started to put the events of July 2020 out of their mind. It will inevitably be harder for Mr Thomas to answer questions about his motivation now than it would have been if the right questions had been put to him before judgment was announced.[48]There is therefore no reasonable prospect of the detriment judgment being varied or revoked. Ground 4 – Error in defining comparator’s circumstances[49]I now turn to the sex discrimination reconsideration application, which is the subject of Ground 4. There is no reasonable prospect of this ground succeeding. We explained (Detriment and Sex Discrimination Reasons paragraph 128) why we considered the male comparator’s circumstances to be materially different from those of the claimant. Ground 4 points to a material similarity: both the claimant’s and the comparator’s actions were capable of damaging Vedamain’s business. But that is beside the point. It does not help the claimant to say that her circumstances had some degree of similarity with the circumstances of the man who put the unpleasant comment on Facebook. She has not engaged with the material differences. Those differences were that the man was one of a group of disaffected drivers (and therefore harder to dislodge) and had not fundamentally challenged Vedamain’s business model in the way the claimant had. Ground 5 – Facts supporting inference of discrimination[50]The sex discrimination reconsideration application sets out facts which, according to the claimant, would enable the tribunal to conclude that her contract was terminated because she is a woman.[51]Those facts include the lack of credibility of the explanation put forward by Vedamain.[52]At paragraph 88 of the Detriment and Sex Discrimination Reasons, we reminded ourselves of the guidance in Igen v. Wong. Paragraph (6) of that guidance was binding on us in its own right and confirmed by subsequent appellate authority. When deciding whether the claimant has proved facts from which the tribunal could conclude a discriminatory reason, the tribunal must assume that no adequate explanation has been given.[53]Another point made by the claimant is that she was “a female driver in a man’s world”. We took account of that point (Detriment and Sex Discrimination Reasons paragraph 129) and explained why that fact did not shift the burden to the respondent.[54]New points appear to include the fact that no men were asked to attend a grievance meeting. That does not raise any reasonable prospect of the sex discrimination judgment being revoked. There was no evidence that a man had raised a grievance. The claimant says that discrimination can be inferred from the fact that she was not allowed to be accompanied by a trade union representative. That does not point to the claimant being dismissed because she was a woman. It 10 of 11 is much more consistent with Vedamain being determined to maintain its stance that its drivers were independent contractors. Disposal[55]It therefore follows that the claimant’s latest three reconsideration applications must be refused.
Disposal
[1]The second detriment/discrimination reconsideration application is refused.[2]The second employment contract reconsideration application is refused.[1]In an effort to achieve consistency with other judgments and reasons: 1.1. Clakim Ltd, Janbar Mg Ltd and Kajoliea Ltd are referred to as “the old Abbey companies”; 1.2. the respondent is still referred to as “Vedamain”, despite its company name having changed to KingKabs Ltd; and 1.3. “CWCC” is Cheshire West and Chester Council. Procedural history[2]Judgment was sent to the parties on 10 January 2023.[3]Paragraph 4 of the judgment (“the employment contract decision”) determined that the claimant was not employed under a contract of employment.[4]Written reasons for the employment contract decision were sent to the parties on 3 April 2023. 1 of 5[5]On 16 April 2023, the claimant applied (“the first employment contract reconsideration application”) for reconsideration of the employment contract decision.[6]A further judgment was sent to the parties on 13 July 2023. Amongst the disputed decisions recorded in that judgment were:(a) a decision (“the detriment judgment”) that Vedamain Ltd did not subject the claimant to an unlawful detriment and(b) a decision (“the sex discrimination judgment”) that Vedamain Ltd did not discriminate against the claimant because of her sex.[7]Written reasons for the detriment judgment and the sex discrimination judgment were sent to the parties on 11 September 2023.[8]By e-mail dated 24 July 2023, the claimant applied for those two decisions to be reconsidered. Those applications are referred to here as “the first detriment/discrimination reconsideration application” and, where the context requires, “the first detriment reconsideration application” and “the first sex discrimination reconsideration application”.[9]The first detriment/discrimination reconsideration application was refused in a judgment (“the first detriment/discrimination reconsideration judgment”) sent to the parties on 24 October 2023.[10]In an e-mail dated 10 May 2024, the claimant has made two further applications: 10.1. “the second detriment/discrimination reconsideration application” – that is, a second application for reconsideration of the detriment judgment and the sex discrimination judgment; and 10.2. “the second employment contract reconsideration application” – which is to say, a second application for reconsideration of the employment contract decision. Grounds for reconsideration[11]The 10 May 2024 is relatively concise. I have reproduced the bulk of it, making amendments to party names for consistency: It is my understanding that I need to ask you Judge Horne, if you would contemplate reconsidering your Judgements made in my case 2148209/2020, as it appears New Evidence is available, CWCC did not deny its existence in their response to me in my FOI Request, as is required. I claim that CWCC also has evidence, that Mr N Thomas should have submitted when he made his late submissions to the bundle at the hearing of 19/20/21 December 2020.The document would show the Respondents signature on the Declaration to the Council that said he would "If a License is granted I undertake to comply with the Legislation. Conditions, Bylaws and the Councils Statement Of Licensing Policy (as amended) attached/relevant to the grant of the License'' This would suggest that the Respondents undertook to take all of CW&C rules into their own contractual relations with the Respondents workers. I would argue that had the Respondents produced this evidence as they were supposed to do, under the Tribunals rulings in regards to disclosure, the 2 of 5 outcome of my employment status may or may not have been different, and the TUPE issue may or may not have been established. I believe I will be able to Prove from CWCC evidence and other Verbal Evidence that was not available to me at the time, that Mr Thomas on the balance of Probabilities knew about my PID prior to My Dismissal. I Needed CWCC co-operation and it is clear from my case with them, that co-operation was not forthcoming, … I suspect the Evidence would prove; "that he knew about the Public Interest Disclosure prior to my dismissal hearing" and that it played a part in my dismissal as did my gender" "Employment Status" Judgement, if this was to alter the issue of being TUPE Protected would have been established, meaning there would be no need to proceed to EAT.”
Relevant law
[12]Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides the tribunal with a general power to reconsider any judgment “where it is necessary in the interests of justice to do so”.[13]Rule 71 relevantly provides, “…an application for reconsideration shall be presented in writing… within 14 days of the date on which the written record… of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later)…”[14]Rule 72(1) states that an employment judge must consider any application made under rule 71, and continues, relevantly, “If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused) the application shall be refused…”[15]The overriding objective of the 2013 Rules is to enable the tribunal to deal with cases fairly and justly. By rule 2, dealing with cases fairly and justly includes putting the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the complexity and importance of the issues.[16]The time limit in rule 71 is capable of being extended under rule 5.[17]The old Employment Tribunal Rules of Procedure 2004 required that judgments could be “reviewed”, but only on one of a prescribed list of grounds. One of those grounds was that “new evidence [had become] available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time.” This proviso reflected the well-known principle applicable to civil appeals derived from Ladd v. Marshall [1954] 3 All ER 745, CA.[18]The current 2013 Employment Tribunal Rules of Procedure replaced the old list of grounds with a single test: a judgment will be reconsidered where it is “necessary in the interests of justice to do so”. There is no specific provision for fresh evidence. Nor is there any express prohibition a party relying on evidence about which he knew or ought to have known before the judgment was given. 3 of 5 Nevertheless, the “interests of justice” test must, in my view, incorporate a strong public interest in the finality of litigation, even if it is not as inflexible as the proviso in the 2004 Rules. Where a party could reasonably have been expected to rely on the evidence first time around, it would take a particularly good reason to give that party a fresh opportunity to rely on it. Such reasons might include where a party has genuinely been ambushed, or where the party asked for an adjournment to obtain the further evidence and that request was refused by the tribunal: see Outasight VB Ltd v. Brown UKEAT 0253/14.[19]Ladd v. Marshall also requires that, for fresh evidence to be admissible on appeal, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. Conclusions[20]The second detriment/discrimination reconsideration application is out of time. The claimant made it approximately 8 months after the written reasons for the detriment judgment and the sex discrimination judgment were sent to the parties.[21]The second employment contract reconsideration application is even further out of time. It was made approximately 14 months after the written reasons for the employment contract decision were sent to the parties.[22]Extending time under rule 5 would not help to achieve the overriding objective. It would not be fair to Vedamain or to the parties to other cases, and would not sufficiently reflect the importance of finality in litigation. It would increase delay and expense.[23]In any case, there is no reasonable prospect of the detriment judgment being varied or revoked. This is because: 23.1. The new evidence from CWCC does not appear to be admissible. There is nothing to suggest that it would have influenced the detriment judgment. The claimant’s latest e-mail states that the evidence from CWCC would prove that Mr Thomas knew that the claimant had made a protected disclosure at the time he terminated the claimant’s contract. That is just a bare assertion. The claimant’s e-mail provides some detail about the evidence from CWCC, namely Mr Thomas’ undertaking of compliance. That would not begin to show that Mr Thomas knew about the claimant’s protected disclosure. 23.2. Likewise, the claimant has asserted that “other Verbal evidence” would prove that Mr Thomas had the requisite knowledge. I take the claimant to mean oral evidence from witnesses. She has not explained what the witnesses would say. She has also failed to establish that the first Ladd v. Marshall criterion is satisfied. There is nothing in the e-mail to explain why the witnesses could not have given their evidence (whatever it was) at the final hearing. 23.3. As with the first detriment reconsideration application, the claimant has not engaged with the tribunal’s finding that there was a persuasive explanation for terminating the claimant’s contract which had nothing to do with the fact that she had made a protected disclosure. It was Vedamain’s insistence that the claimant was an independent contractor.[24]Nor is there any reasonable prospect of the sex discrimination judgment being varied or revoked. This is because the claimant has not explained how the new 4 of 5 evidence would in any way tend to show that the decision to terminate her contract was because she is a woman.[25]There is no reasonable prospect of my varying or revoking the employment contract decision either. The claimant is relying on the new evidence to make substantially the same point as she did in the first employment contract reconsideration application. She wanted the tribunal to find that the licence conditions under which she operated were indicators of sufficient control by Vedamain and the old Abbey companies to establish a contract of employment. I have already refused a reconsideration application under that ground. In any case, I do not think it has merit. All it does is clarify Vedamain’s obligations (and those of the old Abbey companies) towards CWCC to comply with the conditions of an operator’s licence. It does nothing to indicate what obligations drivers had towards Vedamain. Disposal[26]It follows that the reconsideration applications should be refused.[1]In an effort to achieve consistency with other judgments and reasons: 1.1. Clakim Ltd, Janbar Mg Ltd and Kajoliea Ltd are referred to as “the old Abbey companies”; 1.2. the respondent is still referred to as “Vedamain”, despite its company name having changed to KingKabs Ltd; and 1.3. “CWCC” is Cheshire West and Chester Council. Procedural history[2]Judgment was sent to the parties on 10 January 2023.[3]Paragraph 4 of the judgment (“the employment contract decision”) determined that the claimant was not employed under a contract of employment.[4]Written reasons for the employment contract decision were sent to the parties on 3 April 2023. 1 of 6[5]On 16 April 2023, the claimant applied (“the first employment contract reconsideration application”) for reconsideration of the employment contract decision.[6]A further judgment was sent to the parties on 13 July 2023. Amongst the disputed decisions recorded in that judgment were:(a) a decision (“the detriment judgment”) that Vedamain Ltd did not subject the claimant to an unlawful detriment and(b) a decision (“the sex discrimination judgment”) that Vedamain Ltd did not discriminate against the claimant because of her sex.[7]Written reasons for the detriment judgment and the sex discrimination judgment were sent to the parties on 11 September 2023.[8]By e-mail dated 24 July 2023, the claimant applied for those two decisions to be reconsidered. Those applications are referred to here as “the first detriment/discrimination reconsideration application” and, where the context requires, “the first detriment reconsideration application” and “the first sex discrimination reconsideration application”.[9]The first detriment/discrimination reconsideration application was refused in a judgment (“the first detriment/discrimination reconsideration judgment”) sent to the parties on 24 October 2023.[10]In an e-mail dated 10 May 2024, the claimant has made two further applications: 10.1. “the second detriment/discrimination reconsideration application” – that is, a second application for reconsideration of the detriment judgment and the sex discrimination judgment; and 10.2. “the second employment contract reconsideration application” – which is to say, a second application for reconsideration of the employment contract decision.[11]The second detriment/discrimination reconsideration application and the second employment contract reconsideration application were both refused. The claimant was informed of the refusal orally at a preliminary hearing in case 2407605/2023 on 20 June 2024. Written confirmation of the refusal has since been sent to the parties in writing.[12]At the 20 June 2024 preliminary hearing, the claimant handed me an 18-page document. Paragraphs 19 and 25 to 44 of that document contained: 12.1. “the third detriment/discrimination reconsideration application”; and 12.2. “the third employment contract reconsideration application”.[13]I indicated that I would give these applications preliminary consideration and inform the claimant and Vedamain of the outcome in writing. Grounds for reconsideration[14]The reconsideration grounds are set out in 20 paragraphs, one of which is split into 14 sub-paragraphs. It would not be proportionate to set them all out.[15]Essentially, the grounds can be summarised as: 15.1. Ground 1 – Fresh evidence At paragraph 19, the claimant states that Mr Thomas “did not make a full disclosure of evidence” and refers to “78 pages 2 of 6 omitted”. These pages can be found at pages 134-161, 174-228, 282 and 301- 306 of the preliminary hearing bundle in 2407605/2023. The claimant’s case is that “this undisclosed Evidence and witnesses, that were not available to me at the time would on the balance of probabilities go towards confirming my claims…”. In particular (paragraph 28), the new material would show that Mr Thomas knew about her protected disclosure prior to terminating her contract. The fourteen subparagraphs set out how, in the claimant’s view, the new material would help to prove knowledge on Mr Thomas’ part. 15.2. Ground 2 - Further arguments based on the evidence presented at the final hearing; and 15.3. Ground 3 – ex turpi causa – Vedamain’s defence should have failed under the principle, ex turpi causa non oritur actio 15.4. Ground 4 – unjust enrichment – the claim should have succeeded because any other outcome would give Vedamain an unfair windfall.
Relevant law
[16]Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides the tribunal with a general power to reconsider any judgment “where it is necessary in the interests of justice to do so”.[17]Rule 71 relevantly provides, “…an application for reconsideration shall be presented in writing… within 14 days of the date on which the written record… of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later)…”[18]Rule 72(1) states that an employment judge must consider any application made under rule 71, and continues, relevantly, “If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused) the application shall be refused…”[19]The overriding objective of the 2013 Rules is to enable the tribunal to deal with cases fairly and justly. By rule 2, dealing with cases fairly and justly includes putting the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the complexity and importance of the issues.[20]The time limit in rule 71 is capable of being extended under rule 5.[21]The old Employment Tribunal Rules of Procedure 2004 required that judgments could be “reviewed”, but only on one of a prescribed list of grounds. One of those grounds was that “new evidence [had become] available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time.” This proviso reflected the well-known principle applicable to civil appeals derived from Ladd v. Marshall [1954] 3 All ER 745, CA.[22]The current 2013 Employment Tribunal Rules of Procedure replaced the old list of grounds with a single test: a judgment will be reconsidered where it is “necessary in the interests of justice to do so”. There is no specific provision for fresh evidence. Nor is there any express prohibition a party relying on evidence about which he knew or ought to have known before the judgment was given. Nevertheless, the “interests of justice” test must, in my view, incorporate a strong 3 of 6 public interest in the finality of litigation, even if it is not as inflexible as the proviso in the 2004 Rules. Where a party could reasonably have been expected to rely on the evidence first time around, it would take a particularly good reason to give that party a fresh opportunity to rely on it. Such reasons might include where a party has genuinely been ambushed, or where the party asked for an adjournment to obtain the further evidence and that request was refused by the tribunal: see Outasight VB Ltd v. Brown UKEAT 0253/14.[23]Ladd v. Marshall also requires that, for fresh evidence to be admissible on appeal, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive.
Conclusions
[24]The whole application is too late. In particular: 24.1. The claimant made third detriment/discrimination reconsideration application approximately 9 months after the written reasons for the detriment judgment and the sex discrimination judgment were sent to the parties. 24.2. The third employment contract reconsideration application was made approximately 15 months after the written reasons for the employment contract decision were sent to the parties.[25]Extending time under rule 5 would not help to achieve the overriding objective. It would not be fair to Vedamain or to the parties to other cases, and would not sufficiently reflect the importance of finality in litigation. It would increase delay and expense. In coming to this view, I have borne in mind that the claimant could not have known about some of her reconsideration grounds until she saw the new material. But a great many points in Grounds 2 to 4 (and also many of the claimant’s 14 sub-paragraphs in Ground 1) were based on facts known to the claimant at the time of the original final hearing.[26]I have also formed the view that there is no reasonable prospect that any of the new grounds would lead to revocation or variation of the detriment judgment, the sex discrimination judgment, or the employment contract decision.[27]Because the claimant has already made so many reconsideration applications, I confine my reasons to a short summary. Ground 1 – Fresh evidence[28]I have read the 78 pages referred to by the claimant. They do not, in my view, raise a reasonable prospect of the tribunal finding that Mr Thomas knew about the claimant’s protected disclosure at the date of termination of the claimant’s contract.[29]For example: 29.1. The claimant relies on the Standard Terms and Conditions between CWCC and Vedamain. She says that the existence of a dispute resolution procedure at paragraphs D3.1 to D3.3 must mean that someone at CWCC discussed the claimant’s protected disclosure with someone at Vedamain. I disagree. The mechanism existed to resolve disputes between Vedamain and CWCC. Neither Vedamain nor CWCC had raised a dispute with the other. 29.2. The claimant refers at various points to the “no waiver” clause at paragraph H3.2 of the Standard Terms. This does not make it any more likely that CWCC raised the claimant’s disclosure with Mr Thomas. 4 of 6 29.3. The claimant says that she was one of the “key personnel” described in paragraph B6.1.5 of the Standard Terms. In fact, “key personnel” is a term of contractual jargon defined as being a person named in the Contract Particulars. There is no evidence that the claimant was named as key personnel in any such document. Even if she was, that does not show what if anything Vedamain knew about her disclosure. Nor does it help to show that the claimant was employed under a contract of employment. In the employment contract decision, I have already found that the claimant had a personal contract with Vedamain for school transport that could only be terminated by the giving of notice. The claimant says that sections 165-167 of the Equality Act 2010 are relevant, but I do not agree.[30]The claimant also says that she has “a witness who claims certain drivers know about this court case possibly from Ann Marie Booth who works in the [Transport Department]. She adds, “Lyne McGonigle from the [Transport Department] was the person who told me to put my complaints in writing and send it to her, which I did.” Assuming that this is what the claimant’s witness has to say, it does not tend to show that anybody at Vedamain knew about the claimant’s protected disclosure. There is no explanation of why this witness could not have given evidence first time around. Ground 2[31]I deal briefly with the remaining grounds under this heading. Many appear to be substantially the same as the grounds put forward in the first detriment/discrimination reconsideration application and the first employment contract reconsideration application. Both have been refused. Any new points appear to be an attempt to re-litigate the original judgments. There is no reasonable prospect of these arguments succeeding. Ground 3 – ex turpi causa[32]The claimant has misunderstood the principle in operation here. Ex turpi causa non oritur actio is a rule of common law. Employment tribunals are statutory bodies. Ex turpi causa does not give a tribunal the general power to find a worker’s complaint well-founded, simply because the employer behaved immorally or illegally. Where a respondent’s conduct of a claim is unreasonable, the tribunal has the power under its rules of procedure to strike out the response and restrict the respondent’s ability to defend the claim. There was no strike-out application and it is far too late to make one now. Unjust enrichment[33]The principle of unjust enrichment derives from the common law of restitution, on which an employment tribunal has no power to adjudicate. This appears to me to be the claimant’s way of saying that the original decisions were unfair. The claimant has not raised a reasonable prospect of demonstrating that.
Disposal
[34]For these reasons, the claimant’s latest round of reconsideration applications must be refused. 5 of 6