Mr V Tatarenco v SLAM Transport Ltd and Livi London Ltd: 2501717/2023
JUDGMENT
The Judgment of the Employment Tribunal is that the Tribunal does not have jurisdiction to hear the claimant’s complaints of unfair dismissal and unlawful deduction from wages.REASONS
[1]The claimant gave extensive evidence over a number of days on his own behalf. Mrs D Oanta gave evidence on behalf of the respondents. Mr K Polaszewski Finance/HR manager gave evidence on behalf of the first respondent and 10.5 Reserved judgment with reasons – rule 61 1 March 2017 Mr V Madalin Muntele, Head of Accounts gave evidence on behalf of the second respondent.[2]The Tribunal was provided with a bundle of documents and additional documents from both the claimant and the respondents throughout the course of the hearing.[3]This case was listed to deal with three preliminary issues. The case was listed for two days and at that time it was considered to be in the interests of justice for the preliminary issues to be considered first. However, in retrospect, that was probably not the way in which these proceedings should have proceeded, as the issues around the claimant’s working arrangements with the two respondents were far more complicated than would normally be dealt with at a preliminary issue. That is evidenced from the length of time that this case has taken to deal with the preliminary issues. Indeed, these preliminary issues are likely to have taken longer than any substantial issues in these proceedings.[4]Although both respondents were legally represented in this case, Employment Judge Martin was concerned from the outset about the notable lack of any documentation directly dealing with the contractual issues in dispute in this case. Both respondents’ witness statements were equally unhelpful. The claimant was asserting that he was an employee. It was the claimant who produced his contract of employment. Neither of the respondents produced any of the documentary evidence which would have been expected to address the preliminary issues in this case. Both produced very little in the way of documentation. Neither of them appeared to be able to produce any documents dealing with assertions by the second respondent that the claimant was self-employed. It was only latterly during the course of the proceedings that the respondents even produced any invoices from the claimant’s limited company.[5]By way of obiter comments this Tribunal has concerns about the way the first and particularly the second respondents are operating their business. The lack of contractual or written documentation is concerning. At the outset of the proceedings the Tribunal raised its concerns about the lack of documentation produced by the respondents who were both legally represented in this case and expressed concerns throughout the proceedings.[6]The first respondent is a fairly large organisation but appears to have failed to properly document anything with regard to its relationship with the claimant. It is noted that it was the claimant who produced the contract of employment.[7]Furthermore, the second respondent appears to operate with no employees other than Mr Madalin Muntele, who gave evidence, but who did not even meet the claimant. The claimant’s apparent engagement with the second respondent resulted in no documentary evidence whatsoever. The oral evidence produced was very limited.[8]This complete lack of documentation and transparency has meant that this case has substantially longer of the Tribunal’s time than should have been the case. Indeed, both representatives should have been aware that this case should have not been listed or requested to be listed as a preliminary issueThe Law
[9]The law which the Tribunal had to consider was as follows:- Section 108 Employment Rights Act 1996 states that the right to claim unfair dismissal does not apply to the dismissal of an employee unless he has been 10.5 Reserved judgment with reasons – rule 61 2 March 2017 continuously employed for not less than two years ending with the effective date of termination. Section 230 Employment Rights Act 1996. In this Act “employee” means an individual who has entered into or works under a contract of employment. Section 230(2) ERA 1996. In this Act “contract of employment” means a contract of service or apprenticeship whether express or implied and if it is express whether oral or in writing. Section 230(3) ERA. In this Act “worker” means an individual who has entered into or works 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 professional business carried on by the individual; any reference to a worker’s contract shall be construed accordingly. Section 111(2) ERA 1996 – An Employment Tribunal shall not consider a complaint under this section unless it is presented to the Tribunal:- (a) Before the end of the period of three months beginning with the effective date of termination, or (b) 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 that period of three months. Section 23(2) ERA 1996 - an Employment Tribunal shall not consider a complaint for unlawful deduction from wages) unless it is presented before the end of the period of three months beginning with:- (a) the date of payment of the wages from which the deduction was made, or Section 23(3) ERA 1996 – where a complaint is brought under this section in respect of: (a) A series of deductions or payments; The reference to the deduction or payment being the last deduction or payment in the last series. Section 23(4) ERA 1996 – 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. The Tribunal noted the case Uber BV v Aslam [2021] and Ors Supreme Court Decision 2024 which held that Uber drivers were not self-employed but were workers due to the amount of control Uber exerted over its drivers.The Issues
[10]The issues which the Tribunal had to consider are set out in the Order dated 7 October 2024. In particular:- 10.5 Reserved judgment with reasons – rule 61 3 March 2017[11]Firstly, the Tribunal had to consider whether the claimant had a continuous period of employment of two years with the same or an associated employer at his effective date of termination.[12]Secondly, as part of that issue the Tribunal had to determine whether the claimant was an employee, worker or self-employed whilst he was working for the first and/or second respondents.[13]Thirdly the Tribunal had to consider if the claimant was an employee and had two years’ service, whether he had presented his claim in time and, if not, whether it was reasonably practicable for him to do so and whether he presented it within a reasonable time period thereafter.[14]In relation to the complaint of unlawful deduction from wages the Tribunal had to consider similar issues namely whether the claimant was an employee, a worker or self-employed and whether he had presented his claim within three months of the last deduction from wages upon which was relying and if not whether it was reasonably practicable for him to present his claim and it was presented within a reasonable time period thereafter.Findings of Fact
[15]The claimant is Romanian. He has lived in this country for a number of years but speaks very little English and is unable to write in English. A Romanian interpreter was required for the entire duration of these proceedings.[16]The claimant is a HGV driver and worked for Amazon in Darlington.[17]The claimant gave very extensive oral evidence to this Tribunal during the course of a number of days of this public preliminary hearing.[18]As alluded to earlier this case was listed to deal with three preliminary issues. However it took substantially long than it should have taken mainly due to the claimant’s oral evidence and the lack of evidence produced by the respondents in this case.[19]The first respondent is a transport and storage service company. It appears to operate on a number of sites including Amazon in particular the Amazon site Amazon MME1 in Darlington.[20]The second respondent is a recruitment agency that provides services to companies in particular the first respondent for shunter drivers. In evidence Mr Madalin Muntele stated that the second respondent does not employ anyone other than himself and his wife who is a director. It appears that they engage shunter drivers through limited companies. They also subcontract or use agents for part of their work as will be noted further in this decision. They encourage shunters to come to them through limited companies and provide their services to the second respondents in that way.[21]In or about September 2021 the second respondent engaged another limited company owned by Mr Constantin Ounta to provide the administrative services of Mrs Diana Oanta, who is the wife of Mr Constantin Oanta, to them At the same time she was providing services through the same limited company to the first respondent.[22]The claimant says that he started working for SLAM in November/December 2020. He says that he was working at the same site since then but working for different companies which he says were all connected to the first respondent. 10.5 Reserved judgment with reasons – rule 61 4 March 2017[23]The claimant worked for Family Logistic Limited in December 2020. The first respondent accept that that company provides services and did provide services to them in December 2020.[24]The claimant says that when he was undertaking those services, he was employed by the first respondent. He relied on a letter at page 124 of the bundle which is on the first respondent company notepaper. That letter confirms that he was employed/contracted by the first respondent. It is noted in that letter that Constantin Ciofu is the shunter manager. The director of the first respondent company is also noted at the bottom of that letter. The letter is undated. It is marked “To whom it may concern” and was written to deal with keyworker status during the pandemic which would likely therefore to have been somewhere between March to April 2020 or November/December 2020 – February 2021.[25]The first respondent’s representative during the course of these proceedings suggested that letter may not be a genuine letter and questioned the signature. The claimant produced what was purported to be an original document.[26]The second respondent says that the claimant was actually working for another company in 2020 that was owned by Mr Madalin Muntele. Mr Muntele said that he then recommended the claimant to Family Logistics which he said was run by a former employer of his at the time. He said the claimant then joined the organisation and invoiced them through a limited company being the limited company that it is alleged he subsequently used whilst working for the second respondent. That limited company is VAD and INA Limited and is registered at what was, at one stage, the claimant’s home address. The claimant does not dent that VAD and INA Limited is a limited company owned by him[27]The claimant then worked at SLAM Carrier’s Limited which the first respondent accept are part of the first respondent organisation. The first respondent say that the claimant was working for them through his limited company. They say that this was a supplier activity. They have produced a summary of invoices which they say were raised by the claimant during the period January 2021 at 182 of the bundle.[28]The claimant says that he was doing the same job at Amazon MME1 when he worked at SLAM Carriers Ltd as he was doing for the first and second respondent. The claimant said that he was provided with a contract of employment in January 2021. He said he was not able to produce that document because he said that Mr Constantin Oanta must have removed that document from his possessions whilst he was living at their house. The reason why he suggested that he had had a contract at that time was because he said that, when he was later provided with the contract of employment, he said that he went through the two documents side by side.[29]The claimant then joined Top Driver Agency and worked for them from the middle of March to early April 2021. This company is a company of which Mr Madalin Muntele was a director at the time. The claimant says that he did not meet Mr Madalin Muntele at any time whilst he was working for that organisation. The claimant suggested that the organisations are all linked to the first respondent. Mr Muntele said that he met the claimant and the other drivers when they visited Mr Constantin Ciofu at SLAM’s offices in Coventry in February 2021. He said that he did not meet the claimant personally as such but the claimant then joined Top Driver Agency after that. 10.5 Reserved judgment with reasons – rule 61 5 March 2017[30]In his evidence on re-examination by the first respondent’s representative Mr Madalin Muntele said that around March/April 2021 there had been some changes to IR35 which he said impacted about whether people could go through agency/limited companies. He said in evidence that, at that time, shunters who were working through limited companies were all encouraged by the first respondent to become employees of the first respondent. This appears to have occurred around the time that those shunters were issued with contracts of employment by the first respondent. It appears that at this stage it was not clear whether what arrangements which appeared to have been operating prior to this period complied with the HMRC rules and legislation.[31]At that stage it appears that the first respondent decided to employ the shunters who were working at Amazon Darlington and presumably in other places. It is interesting that the first respondents themselves did not give that evidence nor was the evidence indeed given until the re-examination by the first respondent of the second respondent’s witness as referred to above.[32]The claimant then started working with the first respondent. He commenced that employment on 4 April 2021. He has produced, as indicated, earlier a copy of that contract of employment which is at pages 215-227 of the bundle. The first respondent, as noted previously, did not produce a copy of this document for these proceedings.[33]The contract is signed by the first respondent and the claimant on 30 March 2021 and it provides the claimant with fairly standard employment rights.[34]The clamant says that he was handed the contract by an employee of SLAM. He could not read or speak English but signed the contract. The first respondent said that they provided a translator. The claimant says that he reviewed the document cross-referencing it as he suggested to an earlier contract. It is quite clear that the claimant, whether he understood what he was signing or not, has signed the contract of employment.[35]At this stage the claimant was living with Mr and Mrs Oanta at their house in Darlington. The claimant worked with Mr Constantin Oanta as a shunter. The claimant says that Mr Constantin Oanta said that he was an assistant to Mr Constantin Ciofu who he said was effectively the shunter manager. Mrs Oanta suggested that Mr Oanta was not Mr Ciofu’s assistant but worked with him.[36]Whilst the claimant with Mr and Mrs Oanta and their family, Mrs Oanta provided assistance to the claimant to deal with his rotas and other matters because the claimant did not speak or read English and she assisted him in that regard.[37]Mrs Oanta says that it was not until September 2021 that she started working in an administrative capacity for it seems both the first and second respondents undertaking administrative work. She appears to have been undertaking this administrative role through her husband’s limited company. The first and second respondents say that she was not employed by them but it is quite clear that she was working for them and was clearly working for them in some capacity whether as an agent or a subcontractor. She was apparently completing rotas for the first respondent and appeared to be assisting shunters and dealing with paperwork for shunters for the second respondent.[38]In or around March/April 2022 Mrs Oanta suggested that she was talking to shunters about whether or not they wanted to join the second respondent and work through limited companies. It appears that this came about because the 10.5 Reserved judgment with reasons – rule 61 6 March 2017 position with regard to IR35, according to Mr Madalin Muntele, had become clearer.[39]It seems the claimant himself did not take up this opportunity at the time. It seems that Mr Oanta did not take up the opportunity either for different reasons.[40]Mrs Oanta then said the claimant approached him about the opportunity some time around August 2022. The claimant said that he did not realise that that would mean that it would be the end of his employment contract.[41]No documentation whatsoever was provided to the claimant about this proposed move to a limited company at this stage from either the first or second respondents. Indeed no documentation about this proposal was ever provided to the claimant. It appears to have taken place in an underhand way through Mrs Ounta who was at that stage working for both the first and second respondent and clearly had a conflict of interest.[42]On 26 August 2022 the claimant purported to send a text message to resign from his employment with the first respondent.[43]The claimant said in evidence that he could not read and could definitely not have written this text in English as his English was not good enough to do so. He said that Mrs Oanta had drafted the text and sent it on his behalf. Mrs Oanta said that she did translate the text but sent it on behalf of the claimant. She said it was sent by him to the WhatsApp ground for Amazon MME. The text is at page 59 of the bundle. It states “hi from Sunday 21 August I’m working through my Ltd. Please end my contract and send the P45 document thanks.” It was noted that the claimant’s name is noted on the telephone number. The text was sent on 26 August 2022.[44]In his evidence the claimant suggested that he was not aware of what had been said in the text until later, but he did accept that he was told by another person exactly what was said by early September 2022 when that person translated it for him.[45]The first respondent said that the claimant was sent his P45 which is at page 61 of the bundle, although there does appear to be another P45 in the bundle which has a different date on it. The claimant says that he did not receive that document and suggested that he had left the house where he was living and that might have been why he did not receive it.[46]It was common ground that the claimant did not receive any confirmation in writing from the first respondent accepting his resignation or confirming the termination of his employment. The only documentation produced was the P45. It is also noted and common ground that the claimant did not have any oral discussions with Mr Madalin Muntele about joining the second respondent at that time nor indeed at any time. Further, the claimant did not receive any documentation either in advance or subsequently from the second respondent dealing with the working relationship between him and that organisation.[47]The claimant said that he did not appreciate that, when he started using his limited company, he was in fact leaving his employment with the first respondent.[48]Mrs Oanta said that nothing changed for the claimant in terms of the role that he was undertaking except the method of payment.[49]The claimant then appears to have had a period of leave. He appears to have started working at some time during September 2022 for the second respondent. 10.5 Reserved judgment with reasons – rule 61 7 March 2017 However during that period he continued, it would appear, to complete timesheets for the first respondent as is noted in the hard copies at pages 269 to 292 of the bundle. He appears to have continued to do so during January and February 2023 as well (page 298 to 309).[50]However at this time the claimant was operating through his limited company which he had set up and through which he had previously been paid.[51]Mr Madalin Muntele said in evidence that in order for the claimant to be paid through his limited company he would have to log in and file electronic timesheets to the second respondent.[52]The claimant says that Mrs Oanta completed his electronic timesheets and sent them off. Mrs Oanta said that she may have done some initial timesheets for him, but the claimant was then sending in his own timesheets. The second respondent said that the claimant would have a unique password set up to send anything electronically to them.[53]The second respondent said that the payment was only made after the electronic timesheets were received and that no payments would have been triggered without receipt of those timesheets. It is accepted by both parties that the claimant was paid during this period.[54]The claimant sent invoices it would appear to the second respondent so the Tribunal was somewhat surprised that copies of those invoices were not produced as part of the initial bundle although some invoices have subsequently been produced for January and February 2023, (page 249 – 247 of the bundle).[55]The claimant said that towards the end of February 2023 he started feeling very poorly and needed to go home. He sent a message to Mr Ciofu and Mrs Oanta, (page 86). Mr Ciofu suggested he would have to find someone to replace him with.[56]The claimant then went off sick and did not attend work because he was in hospital in A&E, page 85 of the bundle. He said that he sent a messages to Mr Ciofu and Mrs Oanta (pages 90 and 92) of the bundle making it clear he could not work because he was in hospital.[57]Mr Ciofu responded asking why the claimant had not notified them sooner and indicated they would have to find a replacement (page 94).[58]There appears to have followed some further discussions during this time with the claimant and Mr Ciofu with the claimant explaining that he was in hospital and Mr Ciofu indicating that a replacement would need to be found.[59]Mrs Oanta at the same time appeared to be communicating by text with the claimant. She also made it clear that she would have to replace him/find someone else.[60]The claimant then appeared to get a sick note and was then signed fit it would appear on 9 March 2023.[61]It is not clear what if any further communication took place with either of the respondents at that stage, but the claimant then went off on a period of leave.[62]In his evidence Mr Madalin Muntele said as soon as the claimant did not attend at work, that he would immediately have been looking to find a replacement for him to work in place of the claimant as he could let his client down. 10.5 Reserved judgment with reasons – rule 61 8 March 2017[63]The claimant appears to have been carrying on doing timesheets during this period on the first respondents’ standard time sheets noting that he was sick.[64]The claimant then appears to have gone on leave after his illness.[65]On 27 March 2023 the claimant then sent a text message to Mr Ciofu on 31 March after his vacation stating that he was ready to start work and indicates that if he had made a decision to fire me he wants to know (page 120).[66]A text appears to be sent in reply to that text although it is undated (page 121(a) and 121(b)) of the bundle. The text is sent by Mrs Diana Oanta. She says she is texting on behalf of Mr Constantin Ciofu. She sets out several reasons why she says the claimant is not accepted back as a shunter. In evidence the claimant says that the reasons being put forward were not credible. In the text[67]In evidence as indicated above the second respondent on re-examination by the first respondent suggested that after April 2022 the decision was made for shunters to be offered the opportunity to become self-employed through limited companies again once the rules had been clarified. Both the first and second respondents in their evidence suggested that it would be more attractive for shunters to operate through limited companies because of flexibility and a higher rate of pay because they were in effect not having to pay taxes or national insurance for the shunters.[68]The claimant himself said that he did not appreciate that, when he started invoicing through his limited company, his employment contract had in effect terminated.[69]The claimant contacted ACAS on 30 April 2023. The ACAS conciliation certificate lasted until 11 June 2023.[70]The claimant issued proceedings to this Tribunal initially on 18 July which were rejected and then subsequently accepted on 27 July 2023. In his claim form ((ET1) at page 8 it states his employment details. He stated he was employed from 4 April 2021 until 25 August 2022. The second respondents were subsequently added as a respondent to these proceedings. Submissions[71]In submissions the claimant said that he was an employee from January 2021 until March 2023. He said that Mr Constantin Ciofu was the transport manager for the first respondent and had dismissed him through Mrs Oanta on 27 March 2023. The claimant asserted that he had two years’ service and had issued the proceedings in time.[72]Both the first and second respondents submitted that the claimant was selfemployed from August 2022 and therefore he did not have the requisite period of service to bring a claim of unfair dismissal. They submitted he had resigned in August 2022 and they said that the claims were out of time.Conclusions
[73]The Tribunal has already alluded to the concerns that it has about the way the first and second respondents, both of whom were represented, have been operating their business and the way these proceedings were conducted by both of them. The lack of transparency and lack of any documentation which would have clarified the position is concerning in respect of what seem to be shady/murky and undocumented working arrangements between this claimant 10.5 Reserved judgment with reasons – rule 61 9 March 2017 and those organisations. Further, the position of Mrs Oanta who appears to have been operating as an agent/sub-contractor at the same time for both the first and second respondents is also somewhat concerning. This complete lack of evidence has contributed to these proceedings taking considerably longer than should have been the case.[74]The Tribunal had to remind itself that the burden of proof is on the claimant to prove that he was an employee and able to bring a claim of unfair dismissal.[75]This Tribunal finds that the claimant was an employee of the first respondent between 4 April 2021 and 26 August 2022.[76]The Tribunal does not accept that there was a contract of employment in January 2021 to March 2021. In any event there was a gap in any employment when the claimant went to work for an agency in March and April 2021. Mr Madalin Muntele’s evidence that the claimant was submitting invoices at that time through his limited company was not disputed by the claimant on crossexamination.[77]Further we note that the claimant himself on the face of the documentation appears to have submitted invoices at page 182 to SLAM Carrier’s Limited.[78]There is no documentary evidence to show that there was a contract of employment and on balance the Tribunal, taking account of the fact that the burden of proof is on the claimant, does not accept that he was employed during that period.[79]The Tribunal finds that the text dated 26 August 2022 albeit drafted by Mrs Oanta in some sort of agency capacity whether on behalf of the first or second respondents was authorised by the claimant. Although the claimant may not have been aware of the exact wording of the text at that time he was clearly aware of it from very shortly afterwards. If he disagreed with what was set out in that text then he should have raised it at the time, but he did not do so, nor did he suggest he had attempted to do so at any stage which is what he would have done if he disagreed with the contents of that text.[80]This Tribunal has concerns about the way in which this resignation took place, not least because there is no documentation, as is usual employment relations practice, accepting that resignation which would have then made the position absolutely clear. Although the Tribunal accepts that the claimant would not to be able to or did write the text at the time, he did nevertheless know what it said very shortly afterwards. The text is clear and sufficient to amount to a resignation and did terminate his contract of employment. That is consistent with the P45 that was issued even if the claimant may not have seen it at that time. We also note that the claimant himself in his ET1 indicates that his period of employment ended on 25 August 2022.[81]The Tribunal then went on to consider whether the text at 27 March 2023 sent by Mrs Oanta on behalf of Mr Ciofu effectively in some way extended the claimant’s contract of employment. The difficulty with that is that at that stage the claimant’s employment had effectively already terminated. As has been alluded to throughout this Judgment, the lack of transparency and documentation on the part of both the first and second respondents complicated the situation not least because Mrs Oanta, who was at the centre of what was going on during the relevant periods was acting as some sort of agent on behalf of both respondents. It is therefore difficult to tell as to who she is acting for at different stages of this 10.5 Reserved judgment with reasons – rule 61 10 March 2017 situation. The situation is clearly confusing and has led to the difficulties this Tribunal has been presented with today.[82]However, the position still remains that the claimant had already terminated his employment with the first respondent back in August 2022. It was quite clear he knew by early September 2022 what had been written on his behalf and made no attempt to clarify the position or retract his resignation. Therefore, his employment could not have been terminated subsequently by the first respondent because it had already ended.[83]Furthermore, the wording of the texts in March 2023 by both the claimant and Mrs Ounta (on behalf of Mr Ciofu) do not refer to termination but both talk in terms of the claimant coming back or not being accepted back which leans towards him not being allowed to return which is more likely to suggest that he had left in the first instance.[84]By that stage the claimant had, firstly through illness but then subsequently through leave, had not been working for either of the respondents for over a month and he had been told he would be replaced.[85]As the Tribunal has concluded that the claimant himself terminated his employment in August 2022 then the employment contract had expired at that stage. Therefore, the text of 27 March 2023 does not take the matter any further in relation to his status as an employee.[86]Accordingly the claimant does not have the requisite period of service to bring a claim of unfair dismissal as he has less than two years’ service. Even if the Tribunal had accepted that he was under a contract of employment from January 2021 (which we do not) he would still not have had the requisite service to bring a claim.[87]Furthermore, the claimant did not present his claim in time. He presented it effectively almost 11 months after his employment terminated. The claimant has led no evidence to show that it was not reasonably practicable for him to have brought the claim in time, nor has he suggested it was brought within a reasonable time period thereafter.[88]The Tribunal had to then go on to consider whether the claimant’s claim for unlawful deduction from wages was also out of time.[89]In that regard the Tribunal had to consider whether the claimant was a worker or self-employed. This Tribunal considers, having taken account and noted the case of Uber referred to above and indeed noting the wording of section 230 of the Employment Rights Act 1996, that the claimant in this case is likely to be a worker.[90]He was undertaking the same role, and at the same place, following his move to second respondent. Mr Oanta’s evidence whether on behalf of the first or second respondent, confirmed this as she said the only difference was in terms of the method of payment. He was clearly receiving instructions through Mr Ciofu and Mrs Ouanta in the same way so there was a degree of control over what he could do.[91]Further, when he was unable to attend work he was not asked to provide a substitute himself but in fact Mrs Oanta, presumably on behalf of the second respondents indicated that a replacement would have to be found; as did Mr Ciofu presumably on behalf of the first respondents. It is therefore clear that 10.5 Reserved judgment with reasons – rule 61 11 March 2017 the respondents most likely the second respondents were looking to replace the claimant. Mr Madalin Muntele said in evidence a replacement would have to be found in effect by them immediately because they could let the client down. He was not given the opportunity to provide a replacement, so is more likely to be a worker than self employed as there is no suggestion that the claimant at this stage was providing services to a client or customer as he was to be immediately replaced when he was not available.[92]Therefore, on the facts of this case this Tribunal consider that the claimant was likely to be a worker and be able to pursue a claim of unlawful deduction from wages against the second respondent.[93]However, the Tribunal has then gone on to consider when the last deduction was made. The claim for payments appears to be set out at page 126 of the bundle which differs entirely from the £1,155 set out in his ET1. The claims at page 126 appear to relate to claims substantially out of time except for the provision regarding sick pay although he also claims wages from August 2022 up to 30 March 2023. His sick pay relates to a period from 28 February to 12 March. He was signed fit to work from 10 March 2022 but did not attempt to return to work at that stage. He says he was on leave but there is no evidence he advised either of the respondents he was taking leave nor for how long or whether it was authorised nor indeed whether he had any right to this leave. The burden of proof remains with the claimant, who did not lead any evidence, to show he was entitled to take this leave.[94]Based on the information provided it appears that the claimant did not undertake any work for either of the respondents from the end of February until he sought to return at the beginning of April 2023. At that stage he requested to return back and was told that he could not come back, so it was clear that his period of engagement was not continuous over that intervening period.[95]Accordingly, on the face of it his claim for unlawful deduction from wages ended at the latest with any entitlement to sick leave for the period 28 February-9 March 2023. Therefore, his claim was presented outside the time limit for the presentation of such complaints. The claimant, as indicated above, has not led any evidence as to why it was not reasonably practicable for him to present the claim in time, nor that it was presented within a reasonable time period thereafter.[96]Accordingly, this Tribunal has no jurisdiction to hear the claimant’s claim of unfair dismissal or unlawful deduction from wages and the claims are hereby dismissed. Approved by