Mr J Wagstaff v Manchester United Football Club Ltd: 2423586/2017
EMPLOYMENT TRIBUNALS
Case No 2423586/2017
Between
Mr J WagstaffClaimantManchester United Football Club LtdRespondent
Before
Employment Judge HolmesIn person for claimantMr S Chegwin (instructed by Solicitor) for respondentDate 19 April 2018
JUDGMENT
[1]The claimant’s complaints of detriment for having raised health and safety related circumstances with the respondent, under s.44 of the Employment Rights Act 1996 have no reasonable prospects of success, and they are struck out pursuant to rule 37(1)(a) of the 2013 rules of procedure.[2]The claimant’s complaints of breach of contract, save in so far that the claimant complains that he was constructively, and wrongfully dismissed by reason of a fundamental breach of the implied term of trust and confidence on the part of the respondent, have no reasonable prospects of success and are struck out pursuant to the same rule.[3]Further, in relation to the claimant’s complaints of breach of contract, any claim for damages other than the notice pay to which the claimant would have been entitled had he been lawfully dismissed, has no reasonable prospect of success, and is struck out pursuant to the same rule.[4]The Tribunal has no jurisdiction to consider any claims other than the breach of contract claim referred to above, and any other claims that the claim sought to make in his claim form are dismissed[5]The parties are to notify the Tribunal by 11 May 2018 as to what case management orders are required to bring the claims to a final hearing, including an estimated length of hearing and dates to avoid. The parties are to endeavour to agree further case management orders by that date, and to submit them to the Tribunal for approval, and for the Tribunal to list the claims form hearing.[6]In default, the parties are to seek a further preliminary hearing, for one hour, to make such further orders as are necessary
REASONS
[1]The Tribunal convened to hear the respondent’s applications for striking out or deposit orders in relation to some or all of the claimant’s claims, pursuant to orders made at a previous preliminary hearing on 23 January 2018 by Employment Judge Horne. The claimant appeared in person, and the respondent was represented by Mr Chegwin, solicitor.[2]The respondent produced a Bundle for use in the hearing, and the claimant adduced some documents of his own (and clearer copies of some of the respondent’s documents). He had brought with him his full hearing Bundle, which was probably not required for the purposes of the preliminary hearing, but was left with the Employment Judge for him to peruse in case any material therein may have a bearing on the Applications before him. Having heard the submissions of both parties, and having adjourned for an extended lunch break to afford the claimant ample time to make his submissions in reply to the respondent’s, and adjourned again during the afternoon, for the claimant to take his time to consider whether he had said everything that he wanted to. The Tribunal reserved its judgment. The history of the claims.[3]The claimant brought his claims against the respondent , for whom he formerly worked, to put in neutrally, by a claim form presented on 16 October 2017, which he prepared himself, and without the benefit of legal advice. He ticked no boxes in section 8.1, other than that entitled “I am making another type of claim which the Employment Tribunal can deal with” , where he added these details: “Health & Safety, Disregard to Mental Health in the Work Place. Lack of equal Opportunity , bullying from a Health & Safety issue.”[4]In section 8.2 the claimant added more details, adding “Unfair pay for my position and responsibility”, and referring to an accident he sustained at work on 14 October 2013, in respect of which he made a claim, which was successful, in that it was settled.[5]The respondent responded to the claim, as best it could, but in that response raised requests for further particulars of the claims. In general terms the respondent sought details of dates and persons involved in various incidents relied upon by the claimant, and the identities of persons whom the claimant alleged had been promoted in preference to him, or whose pay for doing the same job was higher than his. By letter of 3 January 2018 the Tribunal suggested to the claimant that he supply those before the preliminary hearing, and on 15 January 2018, he sent to the Tribunal an undated document (pages 25 to 31 of the Bundle) in which he provided those particulars.[6]At the preliminary hearing on 23 January 2018 , at which the claimant was assisted by a Mr D Edwards, Employment Judge Horne assisted the claimant to formulate his claims on a legal basis, and they were set out in the note of the Discussion at para. 3, as follows:3.1 a claim for damages for breach of contract, based on a contractual term that the respondent would exercise “reasonable management” and that managers would “work for staff”;3.2 disregard for the claimant’s mental health in the workplace, in breach of “health and safety law”, in particular, the “Health and Safety [at Work] Act”;3.3 “breach of fair pay”, in the respondent’s wage structure; and3.4 detriment on health and safety grounds, contrary to section 44 of the Employment Rights Act 1996 (“ERA”).[7]In the ensuing paragraphs Employment Judge Horne went through the elements of each claim, as he understood them, setting out what would have to be established for the claims to succeed, in cases where the Tribunal appeared to have jurisdiction. He also pointed out those elements of the claimant’s claims in relation to which the Tribunal did not appear to have jurisdiction.[8]At para. 1 of the Orders made, Employment Judge Horne stated that if the claimant did not consider that the discussion did not accurately set out his claims, he must inform the Tribunal in writing immediately. The claimant made no such communication.[9]Having identified the claims, given that the respondent was contending that the Tribunal had no jurisdiction to hear some of the claims, and others had little or no reasonable prospects of success, the Tribunal listed this preliminary hearing.[10]Pursuant to the order on Employment Judge Horne, the respondent on 20 February 2018 filed and served its amended response (pages 39 to 45 of the Bundle). That amended response pleaded that the claimant was never an employee of the respondent, and hence the Tribunal had no jurisdiction to hear all, or most, of his claims. The respondent’s submissions.[11]Mr Chegwin started by identifying that the claims made by the claimant all were dependent upon him satisfying the Tribunal that he was an employee of the respondent. This was true of his breach of contract claim, and his s.44 health and safety detriment claims.[12]His submissions therefore were directed at the contractual position. He took the Tribunal through the process by which assignments were offered and accepted by the claimant, and pages 65 to 69 of the Bundle.[13]He referred to the Terms of Engagement documents for the last three seasons that the claimant worked for the respondent, copies of which were in the Bundle, and express terms thereof. In particular he referred to clauses 2.2, 2.3, 2.4 3.1, 6, 7, 8.2, 8.3 and 9. The effect of these clauses, in summary was that: a) The parties expressly agreed that this was not a contract of employment; b) Each offer of work was a separate assignment, which the claimant was free to accept or decline as he saw fit; c) There was no obligation on the respondent to offer work, nor upon the claimant to accept it; d) There was no continuity of “employment” between assignments; e) The claimant was free to work for other employers during the currency of the contract; f) The claimant could provide a substitute, subject only to that person having previously carried out that type of work for the respondent; g) The claimant was not entitled to sick pay; h) The claimant was not subject to the respondent’s disciplinary and grievance procedures;[14]In summary, he contended that there was a lack of mutuality of obligation, so that this could not be considered an employment contract. He cited Stringfellow Restaurants Ltd v Quashie [2012] EWCA Civ 1735 in this regard, in particular paragraphs 10 to 12 of the judgment of Elias LJ , where mutuality of obligation is considered, and reference is made to previous caselaw on the subject.[15]The respondent conceded that the claimant may well satisfy the test for “worker” status, which is found in other statutory provisions, but all the claims that the claimant makes depend upon employee status.[16]In relation to the position when the claimant was actually working, in answer to a point put by the Employment Judge, Mr Chegwin argued that even then, when on assignment, the claimant was not to be considered as an employee. He relied upon para. 12 of the judgment of Elias LJ, where he says this: “In order for the contract to remain in force, it is necessary to show that there is at least what has been termed “an irreducible minimum of obligation”, either express or implied, which continue during breaks in work engagements : [he then cites two authorities] ... Where this occurs, these contracts are often referred to as “global” or “umbrella” contracts because they are overarching contracts punctuated by periods of work. However, whilst the fact that there is no umbrella contract does not preclude the worker being employed under a contract of employment when actually carrying out an engagement, the fact that a worker only works casually and intermittently for an employer may, depending on the facts, justify an inference that when he or she does work it is to provide services as an independent contractor rather than as an employee.”[17]Mr Chegwin reminded the Tribunal that the respondent was not seeking a final determination of employment status as a preliminary issue, it was asking the Tribunal to determine that the claimant had no, or little, reasonable prospects of establishing that he was an employee, for the purposes of its applications under rule 37.[18]In the alternative, in any event, if the claimant could present any breach of contract claim, he could not have any reasonable prospects of success in claiming as he does for breach of the terms that he alleges were, presumably, implied terms of the contract. He referred the Tribunal to the terms of the Extension of Jurisdiction Order 1994, and submitted that the claimant was really seeking to bring a personal; injury claim, of the type expressly excluded by the Order. The type of damages that the claimant was seeking were not in the class that the Tribunal could award.[19]Further the terms that he sought to rely upon could not imaginably be express or implied terms. In terms of “fair pay”, there was no such term, any such term had to be implied from the Equal Pay Act 1970, which only applied between persons of differing gender. There was no implied term of the type identified in para. 3 of the Discussion in the previous preliminary hearing. He contended that factually the persons identified by the claimant as being more highly paid were not actually engaged in like work to him.[20]Turning to the s.44 claims, even if the claimant could get past the “employee” hurdle, these had no prospect of success. There was a health and safety committee, and health and safety representatives. He referred the Tribunal to the chart at page 81 of the Bundle which showed the Committee structure, and identified Ashley Holloway, a person referred to by the claimant in his pleadings, as a member of it. The claimant had stated that there was a health and safety representative outside where he was working, and he knew her, and spoke to her.[21]The means by which the claimant had brought health and safety matters to the attention of the respondent had been his personal injury claim, intimated by his solicitors by pre – action letters of 15 and 25 November 2013 (pages 72 to 80 of the Bundle). This was not “by reasonable means” within s.44. On the facts alleged by the claimant, even if he was an employee, he could not succeed in these claims.[22]Mr Chegwin therefore invited the Tribunal to strike out all the claims, or, alternatively, to order the claimant to pay a deposit in respect of each claim that the Tribunal found to have little reasonable prospect of success. The claimant’s submissions.[23]The claimant, not being a lawyer, made what he considered were the relevant points in answer to the respondent’s submissions. In relation to the employment status issue, he made the valid points that he was provided with uniform to wear, and was under the close and strict direction of the respondent. He referred to page 64 of the Bundle, which shows a front of house representative, wearing the uniform that the claimant wore. He also had an ID badge which he was obliged to wear, and retained between engagements. He had only once, in practice, sent a substitute, a friend, who had worked previously for the respondent.[24]He considered that he had serious responsibilities, but was treated as a junior employee. He did not consider it fair that employers could hide behind contracts and evade their responsibilities. When he worked for the respondent he was a representative of the Club. He referred to HMRC guidance, under which he considered he was an employee.[25]He continually raised health and safety issues, and believed that the respondent had made changes because of things he had raised . He alluded to the details he had provided in his further particulars, and in particular when he had cut his head in August 2014. It seemed everyone else got promoted and was paid more. He, who raised these concerns was not.[26]He agreed that there was a health and safety committee, and he knew who was on it. He accepted that he spoke with Ashley Holloway, Environmental officer, who was a health and safety representative. He did raise health and safety matters with him.[27]He had been doing research and had discovered more about the Health and Safety at Work Act, the Factories Act and the duty of care. He mentioned a “Fair Pay Act”. He believed these should be claims that he could make in the Tribunal. He was not making a personal injury claim.[28]In relation to his means, he stated that he was not working, but was trying to start up a business. He was receiving benefits, but could perhaps sell his ring. Discussion and Findings. i)Employee status.[30]The respondent’s application rests mainly on the issue of employment status. It invites the Tribunal to find that the claimant has no , or little, reasonable prospect of successfully establishing that he was an employee.[31]The Tribunal would be minded to agree, in respect of the periods between engagements, and the respondent’s argument is a strong one. There would be , the Tribunal agrees, on the express terms of the contract, and the reality of the situation, difficulties for the claimant establishing that there was an “umbrella” or “global” contract in force in respect of the periods between assignments, but that is not a finding.[32]The position when the claimant was working , however, may be different. Whilst Mr Chegwin relied upon the words in the Stringfellows judgment to argue that the absence of such a contract between engagements can be indicative of the worker not being an employee during engagements, those words do no more that establish that this is, or may be, a relevant factor when a Tribunal seeks to determine the status of the worker during assignments. That is, however, as far as it goes, and, as Elias LJ says, this will depend upon the facts. On the facts as alleged, and indeed, largely agreed in this case, the Tribunal considers that it is highly arguable that, during assignments, when working for the respondent, the claimant was doing so as an employee. It is to be observed that the issue in Stringfellows was whether the claimant was an independent contractor. The respondent in this case concedes that the claimant would probably be a worker, for the purposes of other legislation. The line between worker and employee is a thin one, and hence the Tribunal is of the view that on the issue of employee status, for the purposes of both his breach of contract and s.44 claims, there is no basis for saying that this contention has no or little reasonable prospects of success, and no basis , on these grounds, for striking out either of them, or for ordering a deposit. The last engagement carried out by the claimant for the respondent was within three months of the presentation of the claims, and hence, if the claimant was an employee in this final period, no time limit issues, on the face of it, arise, although they may well do in relation to the s.44 detriment claims, when more closely analysed. ii)Other aspects of the claims – the breach of contract claims.[33]The Tribunal now turns to other aspects of the claims where it is contended that the claimant has no or little reasonable prospects of success. The first is in relation to the breach of contract claims, where it is alleged that there were (what must be) implied terms that the respondent would exercise “reasonable management” and “would work for staff”.[34]The Tribunal cannot accept that there is any reasonable prospect of the claimant establishing that such terms are to be implied into the contract. There are certainly no express terms to such effect. The latter term is simply not one that could be implied on the “officious bystander” , or any other test for the implication of terms into contracts. Sadly, even in these days of advanced labour relations , the Tribunal doubts that it would ever be an implied term of an employment contract that the employer would “work for his staff”. Similarly, a term that an employer would exercise reasonable management is perilously close to a term that the employer would act reasonably, a term that is too vague to be implied.[35]Similarly, the claimant’s contention that there was some form of equality clause to be implied into his contract is not sustainable. There was, it is true, an equality clause to be implied under the provisions of the Equality Act 1970, but that is in the context of equal pay between the sexes. The claimant does not seek to complain of not being paid the same as a comparable female, but as any other persons doing the same work, regardless of gender, or , indeed , any other characteristics (see his comparators at pages 26 and 28 of the Bundle) .Further, that the Equal Pay Act 1970 expressly provides for the implication of this (restricted) equality clause, rather suggests that it was necessary to legislate to do so, as otherwise no such clause would be implied at common law.[36]That said, the Tribunal considers that one way in which the claimant’s breach of contract claims could be framed would be as alleged breaches of the implied term of trust and confidence. That is the closest, in terms of legally accepted implied terms , term to the alleged term that the respondent would “exercise reasonable management”. That term, as recognised in cases such as Wood v. W M Car Services (Peterborough) Ltd [1981] IRLR 347 and Mailk v BCCI [1997] IRLR 462 is that the respondent will not , without reasonable and proper cause, conduct itself in a manner which is calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee.[37]That, it seems to the Tribunal, is the correct implied term that the claimant could arguably complain was breached by the respondent in its treatment of him, in the various aspects he refers to in his claims and further particulars.[38]That does not mean, however, that his breach of contract claims as presented are sustainable in the form that he has presented them. By this the Tribunal means the type of damages he can claim. The Tribunal’s contractual jurisdiction is very restricted by the Extension of Jurisdiction Order 1994. What the Tribunal has no jurisdiction to hear are claims of breach of contract during the currency of the employment contract. Whilst the claimant can complain that the treatment of him by the respondent constituted a fundamental breach of the implied term of trust and confidence, entitling him to resign, so that he was constructively , and hence wrongfully dismissed, that claim would only give him a claim for notice pay. The notice pay to which he would be entitled would itself be highly contentious, as it would depend upon continuity of employment, an issue which would require the Tribunal to determine his status between engagements. Even if, however, he could count the whole of his period of engagements since he started with the respondent in 2013, that would only give him an entitlement to statutory notice pay of 4 weeks pay. Further, he would not be entitled to any damages for personal injury or injury to feelings in a breach of contract claim.[39]To be clear, the claimant cannot seek damages based on the difference between what he was paid and what others were paid, like in an equal pay claim. He can only seek damages for being constructively and wrongfully dismissed. The Tribunal therefore will not strike out the claimant’s breach of contract claims, but will strike out his contentions that the respondent breached any term other than the implied term of trust and confidence, and his claims for any form of damages other than notice pay, all other contract claims having no reasonable prospects of success. The s.44 claims.[40]These claims are highly technical, and the provisions relied upon by the claimant are of very strict and limited application. To recap, s.44 of the ERA provides:[44]Health and safety cases (1) An employee 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— (a) (N/a) (b) (N/a) (ba) (N/a) (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,41. The claimant agreed that there was a health and safety committee , and he knew the representatives on it. He also said he spoke to one, Ashley Holloway about his accident. The means by which he brought “circumstances connected with his work which he reasonably believed were harmful to health and safety”, i.e the circumstances of his accident (the date of which appears to have been 17 September 2013, not 14 October 2013, as set out in the ET1), to his employer’s attention were, initially, by telling the health and safety representative, and secondly by his solicitors’ letters before action.42. This poses a problem for the claimant. S.44(1)(c) is engaged in circumstances where it has not been reasonably practicable for the employee to have brought the relevant circumstances to his employer’s attention through the health and safety representatives or the committee. On the claimant’s case , not only was it reasonably practicable to have done so, he actually did so. On that basis s.44(1)(c) is not engaged at all. Even if it were , the Tribunal would then have to consider whether bringing those circumstances to his employer’s attention by a solicitor’s letter, 2 months after the accident, for the purposes of seeking compensation were “reasonable means”. Finally, even if the claimant could establish that he fell within the section, he would then have to establish causation i.e that the detriments which he alleges he suffered were because he had intimated, and then made, his personal injury claim.43. The Tribunal’s view is that the claimant will fall at the first hurdle, and the claims have no reasonable prospect of success, because not only was it reasonably practicable to have raised the relevant circumstances with the appropriate health and safety personnel, the claimant actually did so. S.44 therefore is not engaged at all. If that is wrong, in relation to the other elements of the claims under this section, the Tribunal would hold that the claimant had little reasonable prospects of success in establishing the other requisite elements, especially given that the period of three and a half years elapsed between the sending of the solicitors’ letters and the last of any of the detriments relied upon. Disposal. 44. Thus the Tribunal will strike out the claimant’s breach contract claims, save for the limited claim for appropriate damages for breach arising by way of constructive wrongful dismissal, and will strike out the s.44 claims. The claimant has no other claims, it is now clear, as he cannot bring an “equal pay” claim, or a “fair pay” claim, other than by way of his breach of contract claim. Other than s.44, there is no other basis for a “health and safety” claim. He does not bring, and could not bring on his own case, any discrimination claim, as the persons whose treatment was better than his were of differing and the same gender, and from similar or different racial groups, so there is no protected characteristic under the Equality Act 2010 which claimant has identified so as to afford him any type of discrimination claim.[45]In terms of the claimant’s breach of contract claim, which the Tribunal considers is at least arguable, regardless of its value, the Tribunal has considered whether it nonetheless has little reasonable prospect of success, so as to entitle the Tribunal to make a deposit order. The Tribunal does not consider that it can do so. Whilst there will doubtless still be issues as to employment status, and the affect that any break in the employment may have upon these claims, pleaded properly as a breach of trust and confidence claim, there might be something in the claimant’s complaint that he was treated badly, in essence, for which he need not rely upon any comparators, or any strict legal right to equal for fair pay, but could rely upon the more favourable treatment of others to sustain an argument that his own treatment constituted a fundamental breach of the implied term of trust and confidence.[46]That the claim is of low value, and that it may require a disproportionate degree of preparation and hearing time, are not factors that the Tribunal considers it should taking into account in determining whether or not to make any deposit order. The test is reasonable prospects of success, not the term “success” is not qualified in any way, such as requiring the achievement of any particularly worthwhile level of compensation. There are other steps the respondent can take in terms of protecting itself in these circumstances.[47]The Tribunal has perused the Bundle of documents left by the claimant, and has found nothing which affects its judgment on thee applications. The Bundle is returned (or available for collection, the administration will advise) upon the promulgation of this judgment.[48]The Tribunal should now make case management orders in relation to the breach of contract claim going forward. It may, however, be sensible to allow the parties to take stock, before proceeding to do so. If case management orders are required, the respondent is to prepare a draft form of order, for potential agreement by the claimant, and then to submit for the consideration of any Employment Judge with a view to such orders being made by consent and the claim being listed for a final hearing. If this is not possible, a further preliminary hearing, perhaps by telephone, may be required. The case is released to any Employment Judge. Employment Judge Holmes Dated : 19 April 2018.