Ms C Merriman v 1st Staff Ltd and others: 2600244/2023 and others Ms C Merriman v 1st Staff Ltd and others: 2600244/2023 and others

EMPLOYMENT TRIBUNALS

Case No 2600244/2023

Between

Ms C MerrimanClaimant

ST (R1) 1 Staff Limited (& Others) (R2) Robert Alexander Dawkins (R3) Yaron Woolf (R4) Ms Emma Davies (R5) Coren Murley (R6) Kisimul Group Ltd ( R7) Cassandra Cartin (R8) Mary Grace Meneses (R9) Kim Padua (R10) PA Rigby Ltd (R11) Ross Outer Ltd: Struck out (R12) EM Butterworth Ltd : Struck outRespondent

Before

Employment Judge R Broughton

Date 6 November 2024

JUDGMENT

[1]The Claimant was disabled for the purposes of section 6 Equality Act 2010 at the relevant time. (R6) Kisimul Group Ltd

[2]The claims under The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), The Working Time Regulations 1998 (WTR) and section 13 Employment Rights Act 1996 (ERA) against R6 are dismissed on withdrawal.

[3]All other claims against R6 are struck out on the grounds that they have no reasonable prospect of success. (R11) Ross Outer Ltd and (R12) EM Butterworth Ltd

[4]All and any claims are struck out as against (R11) Ross Outer Ltd and (R12) EM Butterworth Ltd on the grounds that those companies are dissolved and no application has been made to restore them to the register and thus those claims have not been actively pursued and there is no reasonable prospect of success. Specific claims: Unfair Dismissal claim

[5]The claim of ordinary unfair dismissal under section 94 and 98 ERA is dismissed on withdrawal as against each and every respondent. Automatic unfair Dismissal

[6]The claim of automatic unfair dismissal under section 104 ERA is struck out as having no reasonable prospect of success under Rule 37 as against each and every Respondent. Unlawful deduction of wages/WTR/TUPE

[7]The claims for unlawful deduction from wages are struck out as against R2, R3, R4, R5, R7, R8 and R9.

[8]The claims under the Working Time Regulations 1998 are struck out as against R2, R3, R4, R5, R7, R8 and R9 .

[9]The claims under The Transfer of Undertakings (Protection of Employment) Regulations 2006 are struck out as against R1, R2, R3, R4, R5, R7, R8 and R9. Page 2 of 43 Discrimination

[10]The claims pursuant to section 15 EqA are struck out under Rule 37 as having no reasonable prospect of success as against any Respondents’ other than R1.

[11]The claims under section 20/21 EqA are struck out under Rule 37 as having no reasonable prospect of success as against R3, R4, R5 and R6 .

[12]The claims of direct discrimination under section 13 and section 15 EqA on the grounds of disability are struck out against all respondents on the grounds that they have no reasonable prospect of success under Rule 37, other than against R1.

[13]The complaints of victimisation under section 27 EqA are struck out as having no reasonable prospect of success under Rule 37 as against all Respondents other than R1, R3 and R4.

[14]The complaints of harassment under section 26 EqA are struck out as having no reasonable prospect of success against all Respondents other than R1 and R3 .

REASONS

[1]The Claimant has issued 4 sets of proceedings. These were consolidated by an Order of the Employment Tribunal dated 6 March 2023.

[2]The case numbers and respondents are as follows: 2600244/2023 : 1. 1st Staff Limited 2. Cassandra Kate Nicollae Cartin

[3]Lincolnshire County Council : claim withdrawn on 25 April

[4]Robert Alexander Dawkins

[5]EM Butterworth Limited: (dissolved - stayed) 2600312/2023 : 1. Robert Alexander Dawkins. 2. 1st Staff Limited 3. Yaron Woolf 4. Emma Davies 5. Coren Murley 2600313/2023 : 1. 1st Staff Limited 2. Mary Grace Meneses 3. Emma Davies 4. Yaron Woolf 5. Coren Murley 2600314/2023 : 1. Ross Outer Limited: stayed (dissolved - stayed) Page 3 of 43 2. Kim Padua 3. Kisimul Group Limited 4. PA Rigby Limited 5. Robert Alexander Dawkins 3. The Acas conciliation period in respect of all claims commenced on 7 January 2023 and the Acas certificates were issued on 9 January 2023. The claims were all presented to the Tribunal on 31 January 2023. 4. The Claimant was a worker engaged on an assignment by 1st Staff Limited.1st Staff Ltd are a recruitment agency who source assignments for their clients. Yaron Woolf, Emma Davies and Coren Murphy were all employees of 1st Staff Ltd at the relevant time. 5. Kisimul Group Ltd operates residential school and specialised services supporting living services for children and adults with severe learning difficulties and challenging behaviour .They run the premises at 7 Thorpe Lane.

[6]Lincolnshire County Council were alleged to have commissioned 1st Staff Ltd to provide tuition to W, who resided at 7 Thorpe Lane at the relevant time.

[7]PA Rigby Ltd appear to be a payroll (umbrella) company. It is recorded on Companies House as Active. Mary Grace Meneses was at the relevant time and remains, a Director of PA Rigby Ltd.

[8]EM Butterworth Ltd also appear also to be a payroll (umbrella) company which was dissolved on 18 July 2023. Kim Padua is registered as a director of EM Butterworth Ltd.

[9]Ross Outer Ltd appears to be a payroll (umbrella) company which was dissolved on 23 January 2024. Cassandra Cartin is registered as a director of Ross Outer Ltd. The Claimant was engaged by 1st Staff Ltd in September 2021 to undertake personal tuition of W at premises operated by Kisimul Group Ltd , latterly at 7 Thorpe Lane. The Claimant took time off from working due to ill health and requested to carry on tutoring W remotely, ultimately this was not agreed and her work tutoring W ended. Responses to the claim

[10]A response was filed on behalf of Kisimul Group Ltd (R6).

[11]A response was filed on behalf of R1 to R5. Response of PA Rigby Ltd - Active

[12]A response was filed by PA Rigby Ltd (R10) This stated that the Claimant was employed under an outsource arrangement and that Lincolnshire County Council were the end client for whom the Claimant provided her services. R1 was an agency who found work for the Claimant. PA Rigby Ltd is an employment company and a contract is in place between PA Rigby and the Claimant, they pay her wages upon instruction from R1 who confirmed the hours that the Claimant worked . PA Rigby Ltd pleads that the Claimant was their employee for just 3 days from 6 December 2022 until 9 December 2022 and worked a total of 4 hours and was placed at the premises of Lincolnshire County Council via R1/1st Staff Limited. Further, it is their position that PA Rigby Ltd had no control over the actions of 1st Staff Limited or Page 4 of 43 Lincolnshire County Council and had no presence on site and did not supervise or control the Claimant.

[13]PA Rigby therefore maintain that any claims are as against 1st Staff Limited and Lincolnshire County Council. The response form was not stated to be presented on behalf of both PA Rigby and Mary Grace Meneses. No defence to the claim has therefore been served on behalf of Mary Grace Meneses. Response of Ross Outer Limited - dissolved

[14]A response was filed on behalf of Ross Outer Limited prior to its dissolution. The response names the company but is not stated to be filed on behalf of the director, Cassandra Cartin (R7).

[15]The wording in box 6.1 setting out the defence to the claim, is the same in essence as the response submitted for PA Rigby Ltd but pleads that the Claimant was an employee of Ross Outer Limited only from 11 November 2022 until 6 December 20220 when her assignment came to an end.

[16]No response has been filed on behalf of the following:  Mary Grace Meneses  Cassandra Cartin  EM Butterworth Ltd (dissolved)  Kim Padua (director of EM Butterworth Ltd) Preliminary Hearing : 25 April 2024

[17]There was a preliminary hearing by CVP for a case management hearing on 25 April 2024 before Employment Judge Ahmed. The Claimant attended that hearing, with a lay person assisting her.

[18]Employment Judge Ahmed set out in a schedule, an Order for further and better particulars of the claim, because it was unclear from her discursive and narrative form of pleading, what the claims were.

[19]In the Claimant’s agenda for the preliminary hearing on 25 April 2024) she identified her claim as claims follows:  Disability discrimination : indirect/direct  Victimisation  TUPE Regulations  Automatic unfair dismissal  Unlawful deductions from wages. The claim form itself box 8.1 identified; notice pay, holiday pay, arrears of pay and other payments. Withdrawal Page 5 of 43

[20]The claim against Lincolnshire County Council was withdrawn by the Claimant because the representative for the Council informed the tribunal at that preliminary hearing, that the Council had no record of any contractual arrangement with 7 Thorpe Lane or having engaged the Claimant in any way. Stay

[21]EM Butterworth Ltd was dissolved on 18 July 2023. Ross Outer Ltd was dissolved on 23 January 2024. The proceedings against both those companies were stayed by Employment Judge Ahmed at the hearing on 25 April 2024.

[22]As at the date of this hearing and this judgment , Companies House do not record any application having been made to restore either of those companies to the register. Strike Out Warning

[23]EJ Ahmed on 25 April 2024 made Orders requiring the Claimant by 27 June 2024 to show cause why her claim against the following should not be struck out as it did not appear that there was any reasonable prospect of success: Employees of 1st Staff Limited:  Yaron Wolf  Emma Davies  Coren Murley Other individuals named:  Cassandra Cartin (director of Ross Outer Ltd - dissolved)  Mary Meneses (director PA Rigby Ltd- Active)  Kim Padua (director of EM Butterworth Ltd- dissolved)

[24]The Claimant replied on 30 May 2024.

[25]The Claimant referred to her concern that 1st Staff Limited could potentially be dissolved and ‘phoenixed’ into another company and hence she had named individuals. She goes on to identify certain specific allegations against individuals: 27.1: “Yaron Woolf: We have been informed that the home has suspended tuition with immediate effect” and when the Claimant queried why, Yaron Wolf replied: “Further to my email dated 5th December the home have insisted for some time W must have consistency and with the same tutor”. 27.2 In response to a request by the Claimant to 1st Staff, for the names of those involved in her case, following her discussion with Acas and for an update about her request for company policies and a subject access request, she received the following response: “Emma Davies responded to my emails: Hi Caroline , we have been contacted by ACAS so will be dealing with your claim via them. As you currently do not have any Page 6 of 43 students with 1st Staff , we will be suspending your email account as per company policy”.

[26]The Claimant complains that the response from Ms Davies was unhelpful and she should have been given the information she requested.

[27]The Claimant did not address in her response to the strike out application, why the claims against the remaining individuals should not be struck out, namely: Coren Murley, Cassandra Cartin, Mary Meneses and Kim Padua .

[28]The Claimant wrote on 8 July 2024 stating that Mr Dawkins could have prevented the disability discrimination and loss of wages and treated her with compassion. Further, she refers to the TUPE regulations , unlawful deductions from wages claims and holiday pay issues and asserts that the directors of the various companies should be held liable.

[29]The Claimant has referenced the case of Baldwin v Cleves School [2024] EAT, a case concerned with disability discrimination and individual liability under section 110 EqA.

[30]The Claimant has also referenced the case of Timis & Anor v Osipov & Anor

[2018] EWCA Civ 2321

which is authority for the proposition that it is open to an employee to bring a claim under section 47B (1A) against an individual co-worker for subjecting him or her to the detriment of dismissal (i.e. for being a party to the decision to dismiss) and to bring a claim of vicarious liability for that act against the employer under section 47B (1B).

[31]The Claimant’s responses did not address the legal basis any of her claims outside of the claims of discrimination. Claims

[32]Employment Judge Ahmed had identified the claims as including unfair dismissal, disability discrimination, unlawful deduction of wages, breach of contract , breach of working time regulations 1008 and failure to inform and consult under Reg13 TUPE.

[33]Employment Judge Ahmed noted that the claimant’s representative mentioned wanting to rely on section 104 ERA 1996 and that the statutory right is the right not to be discriminated against. EJ Ahmed notified the Claimant as recorded in his order, that this is not a right covered by section 104 ERA.

[34]By 13 June 2024, the Claimant wrote in to the Tribunal responding to the claims identified in the Orders of Employment Judge Ahmed stating that her claims also included victimisation under section 27 EqA and section 104 ERA automatic unfair dismissal. The Claimant failed to address the point about a claim of discrimination not being a relevant statutory right protected under section 104 ERA and identified no other relevant statutory right.

[35]The Claimant provided further and better particulars on 8 July 2023. This document was again largely narrative in format, did not follow the format set out by EJ Ahmed or provide all the further particulars required.

[36]An application to strike out the claims against R6, or in the alternative make a deposit order, was submitted on 10 July 2024. Today’s Hearing Page 7 of 43

[37]The final hearing had been listed for Monday 19, Wednesday 21 and Thursday 22 August 2024. Employment Judge Ahmed converted the final hearing into an attended preliminary hearing to determine the following issues;1.1 Whether the Claimant was a disabled person within the meaning of section 6 of the equality act 2010 in respect of the conditions of osteoarthritis, anxiety and depression;

1.2 Determine which if any complaints or any allegations or arguments in respect of them should be struck out if it is considered that they have no reasonable prospect of success within the meaning of rule 37 (1)(a) the employment rules of procedure 2013.

1.3 Alternatively, whether the Claimant should pay financial deposit as a condition of continuing with any or all of the complaint or any allegations or arguments in respect of them if it is considered that they have little reasonable prospect of success within the meaning of rule 39 and if so, the amount of the deposit

1.4 To determine which respondent if any should be displaced from the proceedings if it is considered that there is no reasonable prospect of success against them

1.5 To identify the issues and make such case management orders are necessary of the case.

[38]Representatives attended the hearing today on behalf of R1 to R6 only. No other respondents were in attendance. I was content looking at the file that they had been served with notice of the hearing and proceeded in accordance with the overriding objective.

[39]An application by the Claimant on 8 August 2024 to vacate today’s hearing on the grounds that she was not well enough to attend and had not arranged representation, was refused on the grounds that she had had a considerable amount of time to make arrangements to be represented and provided no assurance about when she may be in a position to have representation in place. The Claimant also provided no medical evidence to support her contention that she was not well enough to participate in the hearing due to extreme anxiety, or when she would be able to do so.

[40]The Claimant was invited to send in medical evidence if she was unable attend the hearing for health reasons.

[41]The Claimant sent an email on 11 August 2024 stating that she could not attend the hearing today due to her poor health . She stated that her arthritis had still not improved with the warm weather and her mental health had still not improved. The Claimant asked the Tribunal for the reasonable adjustment of a paper based hearing/submissions and that she would have asked the Tribunal for a Telephone Hearing if did not suffer from irregular sleep patterns, had extreme difficulty with speaking properly due to severe anxiety or being too anxious to talk, and if she was mentally able to cope and was able to sit in a seated upright position without being in severe pain. The Claimant attached a number of documents:  An email from the Claimant dated 22 July 224 about missing a call from her GP. Page 8 of 43  An email from the Claimant to the GP surgery dated 22 July 2024  report from a psychotherapist commenting on the claimant’s mobility Limitations dated 22 January 2024.  Email from the Claimant to her GP surgery on 7 August 2024 setting out her symptoms.

[42]The emails simply referred to the Claimant having a GP appointment on 22 July 2024, and informed her GP she had been overwhelmed and distressed all morning and in pain. There was also a document stated by the Claimant to be a report from a psychotherapist (undated) which appears to have been completed by the Claimant, it is brief with handwritten comments about the restrictions on her mobility in terms of walking and standing. The last document is from the Claimant to her GP on 7 August 2024 and sets out her symptoms, asks for a referral to a pain clinic and a back dated sick note for arthritis, anxiety and depression. The symptoms she lists include : Low mood Unable to get to sleep Very overwhelmed Nightmares Severe mental distress Most of the time I struggle to mentally function due to pain and mental health Nervous twitches Involuntary limb movements No motivation Too anxious/distressed to talk properly Poor concentration constantly feel tired

[43]None of the documents submitted included any report, copy records or opinion from any clinician. However, the Claimant sent in written representations which she invites this Tribunal to have regard to in the form of a witness statement and a bundle of documents running to 45 pages [Claimant’s bundle : hereafter referred to as C/B]. The statement addressed the application to strike out and commented further on her claims more generally.

[44]B1 is a reference to pages in the first bundle produced for the hearing on 25 April 2024 and B2 to the further bundle produced for this hearing.

[45]The Claimant’s statement is an attempt to provide more details of her claim again in narrative format and still does not provide all the required details or identify which Respondent’s many of the claims are brought against.

[46]The Claimant had also asked the Respondents attending the hearing today, to provide a copy of the bundle which had been produced a the last the preliminary hearing on 25 April 2024, and they duly did so. That bundle runs to 139 pages. Page 9 of 43 The Application

[47]The Claimant within their witness statement/ written submissions asks for 3 to 4 months to try and get legal representation to provide further and better particulars. She does not set out what efforts she has made, provide any indication of when she expects to secure legal representation but also states that she cannot afford to instruct a solicitor.

[48]The Claimant has not provided any medical evidence to evidence that her disabilities have not made it possible for her to obtain legal advice.

[49]The claim was issued in in January 2023, approximately 19 months ago. There was a preliminary hearing in April 2024, 4 months ago at which Employment Judge Ahmed went through the claims and set out clearly what further information the Claimant was required to provide. The Claimant could have attended today and gone through the further particulars and clarified the claims but has not done so.

[50]On the first day of this hearing at my request, the Claimant was contacted and given the opportunity to take part remotely by CVP but she declined. She sent in an email on the afternoon of the 19 August 2024, thanking the Tribunal for the offer of joining by CVP but that she was not mentally well enough to cope and requested a list of pro bono organisations. A sources of free advice leaflet was provided by the Tribunal.

[51]The final hearing is not yet listed because there is still at this advanced stage, a lack of clarity over all her claims and issues about the merits. It is not in the interests of the overriding objective to delay further to allow the Claimant the chance to obtain legal advice when she has given no indication of when that is likely to be or indeed what efforts she has made or will make to secure advice.

[52]The Claimant in her submission suggests that the Respondents pay for a law firm to conduct a full case review and she would then be prepared to withdraw claims based on that advice. That is certainly not something this Tribunal can order.

[53]The Claimant in her submission is clearly capable of carrying out research, she refers to the legislation, she identifies different types of discrimination, detriments etc and refers in her submissions to a number of legal authorities with citations, which she says she has read and which include : Ogen v Wong Base Childrenswear Ltd v Otshudi

[2019] EWCA Civ 1648

Baldwin v Cleves School

[2024] EAT 66

Timis v Osipov & Anor

[2018] EWCA Civ 2321

[54]In all the circumstances I considered that it was in accordance with the overriding objective to proceed to deal with the issues as far as I was able to do to so today based on the information provided so far.

[55]The representatives of R6 and R1 to R5, made oral submissions.

[56]I considered the submissions and documents filed by the Claimant and the two bundles of documents prepared for this and the previous preliminary hearing when making my deliberations. Further documents for today’s hearing

[57]Mrs Peckham also produced 3 further documents attached with an email during the course of today’s hearing: Page 10 of 43 (1) Document headed Terms and Conditions of Employment

[58]The Terms and Conditions document state that the contract is between the Claimant and XY English Ltd. It includes the following provision: 2.Duties2.1 You are employed by the Company [defined as XY English Ltd] in the capacity of Tutor…

2.2 The Company reserves the right to vary your duties and responsibilities at any time and from time to time according to the needs of the Company’s business.

[59]The Key Information Document attached with this document, includes the following : Name of employment business: IST STAFF LIMITED Name of intermediary or umbrella company: Deliverax Limited Your employer: XY English Ltd. Type of contract you will be engaged under: Contract of Employment … You are being paid through an intermediary or umbrella company: a third – party organisation that will calculate your tax and other deductions and then pay you for the work undertaken for the hirer. We will still be finding you assignments. The money earned on your assignments will be transferred to the intermediary or umbrella company as part of their income.

[60]The further 2 documents are: (2) Candidate Application form from 1st Staff Ltd completed by the Claimant for agency work dated 22 April 2021. (3) Claimant’s payslips and P45: they include the following information: 9.3.1: Payslips for the dates: /13th/20th/27th May 2022 and 3rd/17th/24th/June and 1st/8th/15th/22nd/29th / July and 12th/ August and 9th September naming employer as XY English Ltd 9.3.2: 16/th/9th/2022 to 21st/October/2022: the employer now named as EM Butterworth Ltd. 9.3.3 11th/November 2022 to 2nd/12th/2022; employer is now named as Ross Outer Limited 9.3.4:9 December 2022: employer now named as PA Rigby Limited 9.3.5: P45 dated 17th January 2023 naming employer as PA Rigby Limited Page 11 of 43

[61]After the hearing, the above additional 3 documents were sent to the Claimant and all other parties, and I they were given an opportunity to make further submissions on those in writing. The Claimant responded on 25 August 2024 and her submissions have been taken into consideration. Status of the various companies

[62]According to Companies House XY English Ltd was dissolved on 21 February 2023.

[63]The intermediary/umbrella company Deliverax Limited is still an active company. It processed the payroll.

[64]The entity named as the employer on the payslips has changed over a period of 6 months from XY English Ltd, to EM Butterworth Ltd, Ross Outer Limited and then to PA Rigby Limited.

[65]EM Butterworth Ltd and Ross Outer Limited are dissolved and those proceedings stayed.

[66]PA Rigby Ltd is still an active company on Companies House. While EJ Ahmed referred to them as a payroll company, the payroll/umbrella company in the Terms and Conditions document is named as Deliverax Ltd. The employer is named as XY English Ltd whose name appears on the payslip, but ultimately the name of the employer is replaced by PA Rigby Limited.

[67]It appears that the Claimant entered into what was called an employment contract with XY English Limited which then placed her as an agency work on assignment with 1st Staff Limited who then supplied her services to Nottingham Council (and then Lincolnshire NHS Trust) to work in the home run by R6. 68. 1st Staff Ltd deny they had control over the Claimant’s activities and thus were not her employer.

[69]PA Rigby Ltd in its ET3 state that 1st Staff Limited is an agency which finds the Claimant work. It placed here with Lincolnshire County Council as the end client. It states that it employed the Claimant for only 3 days between 6 and 9 December 2022, a contract of employment was in place and they paid her wages on instruction from R1 as to the hours worked by R1.

[70]Under the Terms and Conditions document PA Rigby Ltd is ultimately responsible for payment of wages, holiday pay and sick pay. It would therefore appear that any unlawful deduction of wages claim may potentially be pursued against PA Rigby Limited and any TUPE claim (if there has been a failure to inform and consult following a transfer of employment) and claim for holiday pay.

[71]If PA Rigby Ltd is her employer and under the Terms and Conditions, it is responsible for paying her, including sick pay. 72. 1st Staff Limited have produced no documents which set out the terms on which the Claimant provided its services to them (other than the application form) or its relationship with PA Rigby ltd (and originally XY English Ltd). The issues Disability Page 12 of 43

The issues

[73]The Respondents 1 to 6 confirmed at the outset of today’s hearing that they concede that the Claimant was disabled at the relevant time because of all three conditions: osteoarthritis, anxiety and depression.

[74]There are however, discrimination claims at this stage still being pursued against R7 to R12.

[75]R7 to R12 did not attend or submit any representations disputing that the Claimant was disabled at the relevant time of the alleged discrimination. They also do not dispute this in the responses which have been filed for those who have filed a response.

[76]The Tribunal has not received any further information or applications by R7 to R12.

[77]All the Respondents have notice that the issue of disability would be determined today and therefore in the absence of any applications by any of the Respondent’s for an adjournment, I have proceeded to make a determination on the papers. The issue of disability is conceded by R1 to 6 in respect of the claims against them, however it is necessary to determine the issue as far as the remaining Respondents are concerned because they have not formally conceded the point. Relevant Period

[78]The alleged discrimination appears to have started in September 2022 and ended when the Claimant received a response on 16 December 2022 from Emma Davies. Legal Principles: disability issue- section 6

[79]The Equality Act 2010 contains the definition of disability and provides: Section 6. Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability.

(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.

(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and Page 13 of 43 (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.

(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).

(6) Schedule 1 (disability: supplementary provision) has effect. Schedule 1 sets out supplementary provisions including: Part 1: Determination of disability Impairment Long-term effects 2 (1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.

(7) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

(8) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed.

(9) Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term. Effect of medical treatment 5(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect.

(10) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid. The ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011)

[80]Relevant provisions which I have considered include the following and I have emboldened certain parts which I consider to be particularly pertinent; A5. A disability can arise from a wide range of impairments which can be:• impairments with fluctuating or recurring effects such as Page 14 of 43 rheumatoid arthritis …depression…

• mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias..

• mental illnesses, such as depression and schizophrenia;

• produced by injury to the body, including to the brain. A6. …There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment… Section B Meaning of ‘substantial adverse effect’ B1. The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect. This is stated in the Act at S212(1). B2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity. The way in which an activity is carried out B3. Another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-today activity. The comparison should be with the way that the person might be expected to carry out the activity compared with someone who does not have the impairment. The guidance gives the following example; Cumulative effects of an impairment B4. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect. The guidance gives the following example: A man with depression experiences a range of symptoms that include a loss of energy and motivation that makes even the simplest of tasks or decisions seem quite difficult. He finds it difficult to get up in the morning, get washed and dressed, and prepare breakfast. He is forgetful and cannot plan ahead. As a result he has often run out of food before he thinks of going shopping again. Household tasks are frequently left undone or take much longer to complete than normal. Together, the effects amount to the impairment having a substantial adverse effect on carrying out normal day-to-day activities. Effects of behaviour B7. B9. Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. Effects of treatment B12. Page 15 of 43 The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. Section C: Long-term The cumulative effect of related impairments should be taken into account when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely to develop from, another impairment should be taken into account when determining whether the effect has lasted, or is likely to last at least twelve months, or for the rest of the life of the person affected. Meaning of ‘likely’ C3. The meaning of ‘likely’ is relevant when determining: o whether an impairment has a long-term effect (Sch1, Para 2(1), see also paragraph C1); o whether an impairment has a recurring effect (Sch1, Para 2(2), see also paragraphs C5 to C11); o whether adverse effects of a progressive condition will become substantial (Sch1, Para 8, see also paragraphs B18 to B23); or o how an impairment should be treated for the purposes of the Act when the effects of that impairment are controlled or corrected by treatment or behaviour (Sch1, Para 5(1), see also paragraphs B7 to B17). In these contexts, ‘likely’, should be interpreted as meaning that it could well happen. Recurring or fluctuating effects C5. The Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of ‘long-term’ (Sch1, Para 2(2), see also paragraphs C3 to C4 (meaning of likely). Meaning of ‘normal day-to-day activities’ D2. D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern Case Authorities

[81]The time at which to assess the disability is the date of the alleged discriminatory act: Cruickshank v VAW Motorcast Limited

2002 ICR 729

EAT.

[82]Goodwin v Patent Office

1999 ICR 302

EAT; The EAT set out guidance on how to approach the issue of whether the definition section 6 EqA is met. Page 16 of 43

[83]In All Answers Ltd v W

2021 IRLR 612

, CA, the Court held that the EAT was wrong to decide that the tribunal’s failure to focus on the date of the alleged discriminatory act was not fatal to its conclusion that the claimants satisfied the definition of disability. The Court held that, following McDougall v Richmond Adult Community College

2008 ICR 431

, CA, the key question is whether, as at the time of the alleged discrimination, the effect of an impairment has lasted or is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at that date and so the tribunal is not entitled to have regard to events occurring subsequently.

[84]The impairments do not need to be related or interact with each other for their combined effect to be considered: Ginn v Tesco Stores Ltd EAT 0197/05. In Brown v Beth Johnson Foundation ET Case No.1304755/15 Findings of Fact on disability

[85]In the circumstances I have considered the evidence produced by the Claimant and decided to proceed to determine the issue of disability as against the remaining Respondents on the papers.

[86]The Claimant has produced medical records and an impact statement.

[87]I took into account the claimant’s impact statement which set out the effects of the conditions [B2 168- 171]. There was no cross examination of the Claimant and on balance I accept her account of her conditions and their impact which appear to be supported by and consistent with, the medical evidence provided. Anxiety and depression:

[88]The Claimant refers to having had anxiety and depression for many years albeit the severity fluctuates. She describes how when working for the Respondents she still had ‘racing thoughts’ most of the time which affected her sleep.

[89]The Claimant refers to a severe exacerbation of her mental health in 2018, the impact of which included uncontrollable thoughts, difficulty concentrating, difficult organising her thoughts, frequent nightmares , heart palpitations and sleepless nights and panic attacks. In March 2019 her GP prescribed her with Escitalopram however this caused side effects however, she tried it again in July 2019 when she was again struggling with her mental health. In September 2019 she was prescribed Citalopram.

[90]The Claimant’s evidence is supported the GP notes which refer to a diagnosis of depression on 16 July 2019 and: “Agreed to start Escitalopram again” (Tribunal stress). [B2 161] . They also record an overdose of Citalopram on 2 January 2020 [B2 160].

[91]The GP notes also record the Claimant’s feelings of anxiety and depression on 10 February 2021.

[92]The Claimant describes in her evidence, ongoing symptoms which can include difficulties with her concentration and reading due to racing thoughts and being distracted and taking longer to write because of worrying about what to write and needing breaks.

[93]She describes when suffering high levels of anxiety, to frequently making mistakes and difficulties retaining new information . She also reports becoming extremely Page 17 of 43 overwhelmed in social situations and avoiding communication and withdrawing socially and feeling nauseous [B2 169].

[94]The Claimant also complains of extreme tiredness, lack of energy, no motivation and impaired memory and concentration .

[95]On balance, I accept the account of her symptoms, which fluctuate, as set out in her impact statement. Osteoarthritis

[96]The Claimant her impact statement, states that she began experiencing pain in the pelvic region in around May 2022 and back pain in February 2022 and by September 2022 the pain began to worsen to the point where it made it increasingly difficult or impossible to travel work due to the severe pain. In July 2022 she refers to an XRay confirming the diagnosis of osteoarthritis in both sides of her hips .

[97]She describes in her impact statement, that the pain is debilitating most of the time and impairs her ability to walk and move around due to increased pain and even sitting in any upright position can cause significant pain [B2 171] .

[98]The evidence of the Claimant is that it takes longer for her to wash due to stiff hip joints, and her mental health problems and some days she does not wash at all. She rarely carries out household chores due to pain and fatigue which impacts on her sleep and mental health.

[99]There is a hospital report from dated 5 July 2021 confirming an emergency attendance for headache, dizziness, blurred vision and leg spasms.

[100]A hospital report on 10 June 2022 diagnoses pain in both hips and early degenerative OA in both hips with increased articular sclerosis [B2 165]. The reports are supportive of the evidence in the Claimant’s impact statement.

[101]There is a report from her GP [B2 164] dated 26 September 2022 which confirms a diagnosis of osteoarthritis of both hips.

[102]A hospital update on 6 October 20220 [B2 163] refers to the Claimant presenting as distressed and experiencing pain and numbness in her legs and reports of struggling with anxiety. . Conclusions

[103]The medical evidence produced, although limited, is supportive and consistent with the evidence set out in the impact statement and I accept as reliable, the Claimant’s account of the health conditions/impairments and their effects. The Impairment Condition

[104]I am satisfied therefore that the Claimant had impairment for the purposes of section 6 EqA, namely osteoarthritis, anxiety and depression. The Impairment Condition is therefore met. Adverse Effects Condition

[105]I accept that the impairments had an adverse effect on the Claimant’s ability to carry out normal day to day activities. Page 18 of 43

[106]In terms of anxiety and depression, albeit a fluctuating condition, I accept that the effects can include those as set out above which include impaired concentration, decision making, memory, withdrawal in social situations, impaired sleep resulting in fatigue and loss of motivation. The effects impacted on her normal day to day activities include reading, writing, socialising, personal hygiene, sleeping, carrying out household chores, all of which are all normal day to day activities which I accept are impaired to a significant extent and sometimes controlled or mitigated with the assistance of anti- depressant medication.

[107]In terms of the physical impairment alone, the impact on her mobility, the ability to care for her personal hygiene and carry out household chores would alone qualify as ‘significant’. The combined effect of the physical pain and restrictions with her mental health impairment are such that her ability to communicate and rest is severely impaired. Were the Substantial Effects Substantial and Long Term ?

[108]I accept the claimant’s account that she has suffered with these impairments of anxiety and depression and that the effects have lasted for many years, dating back to at least 2018. The Claimant attended her GP at various times in 2019, again in January 2020 and again as recorded in 2021.

[109]In terms of osteoarthritis, I conclude that the Claimant had experienced significant effects on her normal day to day activities as described, by around June 2022 and that given the nature of the condition it was likely, as at the stage of diagnosis in July 2022, that the condition and its effects as described, (without the mitigating effects of painkilling medication), were likely to be long term.

[110]I conclude that the Claimant met the definition of a disabled person because of the 3 pleaded conditions at the relevant time. Other issues

[111]I now turn to the other issues I need to determine: 1.6 Determine which if any complaints or any allegations or arguments in respect of them should be struck out if it is considered that they have no reasonable prospect of success within the meaning of rule 37 (1)(a) the employment rules of procedure 2013. 1.7 Alternatively, whether the Claimant should pay financial deposit as a condition of continuing with any or all of the complaint or any allegations or arguments in respect of them if it is considered that they have little reasonable prospect of success within the meaning of rule 39 and if so, the amount of the deposit 1.8 To determine which respondent if any should be displaced from the proceedings if it is considered that there is no reasonable prospect of success against them Rule 37/Rule 39

[112]It remained unclear from the claimant’s further and better particulars what the claims were however, I have endeavoured to identify what they are and address the submissions of the parties in respect of each. Page 19 of 43 Legal Principles.

[113]The power of the Employment Tribunal to strike out a claim is set out under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237 which provides that : Striking out(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the Claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

[114]The power to order a deposit is provided by rule 39 which states: (1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.

[115]A Tribunal may make a deposit order where a specific allegation or argument has little reasonable prospect of success however, this is not a mandatory requirement. Whether to make such an order, even where the Tribunal deem there to be little reasonable prospect of success, remains within the discretion of the Tribunal to determine. Discrimination claims

[116]The applicable time limit in respect of claims of discrimination is set out in section 123 Equality Act 2010. The relevant provisions provide as follows; 1) proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. … (3)For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. Page 20 of 43 (4)In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—

[117]The EAT in Hasan v Tesco Stores Ltd

UKEAT/0098/16

held that when considering whether to strike out a claim, a tribunal must(a) consider whether any of the grounds set out in rule 37(1)(a) to (e) have been established (first stage); and

(b) having identified any established ground(s), the Tribunal must then decide whether to exercise its discretion to strike out, given the permissive nature of the rule (second stage).

[118]As a general principle, discrimination cases should not be struck out except in the very clearest circumstances. In Anyanwu v South Bank Students' Union

[2001] IRLR 305

, a race discrimination case heard in the House of Lords, Lord Steyn stated at paragraph 24: “For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.”

[119]Lord Hope of Craighead stated at paragraph 37: “ … discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The Tribunal can then base its decision on its findings of fact rather than on assumptions as to what the Claimant may be able to establish if given an opportunity to lead evidence.”

[120]In Tayside Public Transport Co Ltd (trading as Travel Dundee) v Reilly

[2012] IRLR 755

, the following summary was given at paragraph 30: 4111111/2019 Page 4 “Counsel are agreed that the power conferred by rule 18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College

[2011] IRLR 217

, para 4 (EAT)).

[121]In Mechkarov v Citi Bank NA

[2016] ICR 1121

the EAT summarised the law as follows: “(a) only in the clearest case should a discrimination claim be struck out; (b) where there were core issues of fact that turned on oral evidence, they should not be decided without hearing oral evidence; (c) the claimant’s case must ordinarily be taken at its highest; (d) if the claimant’s case was ‘conclusively disproved by’ or was ‘totally and inexplicably inconsistent’ with undisputed contemporaneous documents, it could be struck out; (e) a Tribunal should not conduct an impromptu minitrial of oral evidence to resolve core disputed facts.” Statutory Provisions

[122]Section 26 of the Equality Act 2020 defines Harassment as; (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— Page 21 of 43 (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— Disability ;

[123]Direct discrimination under section 13 Equality Act (EqA) 2010 is defined: 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. 124. ‘Something arising from’ discrimination under section 15 EqA is defined as: (1)A person (A) discriminates against a disabled person (B) if— (a)A treats B unfavourably because of something arising in consequence of B's disability, and (b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2)Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[125]Victimisation under section 27 EqA is defined as: (1)A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act. (2)Each of the following is a protected act— (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (c)doing any other thing for the purposes of or in connection with this Act; (d)making an allegation (whether or not express) that A or another person has contravened this Act. (3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4)This section applies only where the person subjected to a detriment is an individual. (5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[126]Failure to make reasonable adjustments is set out under section 20/21 EqA Section 20: (1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)The duty comprises the following three requirements. (3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage… (5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. … Page 22 of 43 (11)A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service.

[127]Section 21 (1)A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3)A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.

[128]Indirect discrimination is set out in section 19 EqA: (1)A person(a) (A) discriminates against another

(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a)A applies, or would apply, it to persons with whom B does not share the characteristic, (b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c)it puts, or would put, B at that disadvantage, and (d)A cannot show it to be a proportionate means of achieving a legitimate aim. (3)The relevant protected characteristics are—disability; Employee status

[129]It appears from the notes of the preliminary hearing that what is being contended by the Claimant, is that she worked for R1.

[130]The Claimant provided her services to R1 via an umbrella company at various times, through Ross Outer Ltd and EM Butterworth Limited, but both those companies are dissolved and the Claimant has not applied for them to be reinstated to the register. Ross Outer Ltd and EM Butterworth Limited

[131]Given that the Claimant has not sought to reinstate those companies to the register, and has given no indication that this is her intention, despite this being pointed out to her back in April 2024 at the last preliminary hearing, I am now striking out all and any claims against those two companies on the grounds that there no reasonable prospects of success against companies which no longer legally exist.

[132]That does not apply however, to any claims against the individuals who were directors at the relevant time, to the extent there is a legal basis for pursuing them in an individual capacity.

[133]PA Rigby Ltd accepts in its defence [B1 127] that it was the employer between 6 – 9 December 2022 and remains an Active company. Potentially if the Claimant’s employment transferred to it under TUPE from Ross outer Ltd (who accepts she was Page 23 of 43 employed by them until 6 December 2020), then liability would have transferred to PA Rigby Ltd for any pre-transfer liabilities. 1ST Staff Limited (& Others)

[134]R1 are a recruitment agency and they found the Claimant an assignment to provide tuition to child (W) who lived at 7 Thorpe Lane.

[135]This school is owned and managed by Kisimul Group Ltd (R6).

[136]The Claimant has not identified what she alleges her status was, as between herself and R6. Her alleged employment status is not clarified at the preliminary hearing, set out in her claim, addressed in further and better particulars or set out in her witness statement.

[137]R6 today denies any relationship as between the Claimant and its organisation.

[138]R1 accepts that the Claimant was a worker and that it was a principal.

[139]The funding for the tuition was originally provided by Nottinghamshire County Council. Mrs Peckman believes the care package changed from being classed as education to care needs, because of W’s needs and then the funding passed to Lincolnshire NHS Trust.

[140]It appears on the evidence of R1 today, that the correct party who was funding the tuition was Nottinghamshire City Council ( Council) until May 2022 when the body then responsible for W’s funding/tuition provision, became Continuing Care Group NHS Lincolnshire (Trust), probably because the funding was not just for care but medical needs.

[141]Mrs Peckman confirmed that no one had raised with Employment Judge Ahmed that the funding had been provided by Nottingham City Council but following a review as to W’s needs, funding transferred to the Trust in May 2022.

[142]I have not made an order to add the Trust as a respondent today pending further clarification of the claims and confirmation from the Claimant that this is how she wants to proceed.

[143]The Claimant appears to accept in her further and better particulars [B2 41] that she was required to contact R1 if she was late or could not go into work. Unfair dismissal

[144]The Claimant did not have 2 years’ service as at the end of the tutoring assignment and she has stated that she wants to withdraw the claim of ordinary unfair dismissal.

[145]There was some discussion at the preliminary hearing about a claim under section 104 (4) ERA on the basis of the statutory right not to be discriminated against however that is not a statutory right as defined by section 104 (4) ERA and the Claimant has not identified any other statutory right which is being relied upon. That claim must therefore now be struck out on the basis that it has no reasonable prospect of success under Rule 37. TUPE Page 24 of 43

[146]The Claimant complains of a change of employer and not being informed or consulted under TUPE.

[147]In her further and better particulars she accepts that this claim has nothing to do with R6 and that claim as against R6 is this treated as dismissed on withdrawal.

[148]The Claimant alleges that she was notified of a change of employing umbrella company via Paylinks [B2 41]. From Ross Outer Limited in October 2022 [B2 41]. From Ross Outer Limited (transferor) to PA Rigby Limited on 6 December 2022 [B2 49].

[149]The duty to inform under TUPE is contained in Reg 13(2), which provides that ‘long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees, the employer shall inform those representatives’ of the following: the fact that the transfer is to take place, the date or proposed date of the transfer and the reasons for the transfer in Reg 13(2)(a),the ‘legal, economic and social implications’ of the transfer for any affected employees in Reg 13(2)(b),the ‘measures which he envisages he will, in connection with the transfer, take in relation to any affected employees or, if he envisages that no measures will be so taken, that fact’ in Reg 13(2)(c), and if the employer in question is the transferor, ‘the measures, in connection with the transfer, which he envisages the transferee will take in relation to any affected employees who will become employees of the transferee after the transfer by virtue of regulation 4 or, if he envisages that no measures will be so taken, that fact’ in Reg 13(2)(d).

[150]Failure to provide the information required under Reg 13 can attract a remedy of up to 13 weeks’ pay for each affected employee 151. where the transferee fails to inform or consult in accordance with Reg 13, it is the transferee, and not the transferor, that will be liable in respect of the default

[152]Unlike the duty to inform, the duty to consult under Reg 13(6) does not arise in every transfer situation. Rather, it does so only where a transferor or transferee ‘envisages that he will take measures’ in respect of one or more affected employees.

[153]Where a transferor envisages that the transferee will take measures in respect of the transferring employees, the transferor will not be obliged to consult in respect of such measures however, it will be required to inform the appropriate representatives of any measures it envisages that the transferee will take: Reg 13(2)(d).

[154]The Claimant does not allege in any of her documents, that any measures were taken which gave rise to a duty to consult.

[155]The only claims against PA Rigby Ltd appear to relate to a failure to inform under TUPE and/or WTR 1998 and such claims cannot be brought against individuals. Those types of claims can only be brought against the transferor or transferee which would be the companies. Those claims of TUPE or claims under the WTR as against Cassandra Cartin (R7) and Mary Meneses (R8) and Kim Padua (R9) have no reasonable prospect of success and are struck out under Rule 37. Holiday pay claim

[156]The Claimant complains that she is not sure whether her holiday pay was included in her hourly rate or should have been paid separately. The Claimant in her further and better particulars confirms that this claim is not brought against R6. On the same basis any claim for unlawful deduction of any wages has no reasonable Page 25 of 43 prospect of success against R6 on the grounds that the does not allege that they were involved in the payments to her and thus to the extent that the Claimant includes R6 in the claim for unlawful deduction, I consider there is no reasonable prospect of success and that the claim struck out. Failure to make reasonable adjustments: section 20/21

[157]The crux of the claim as far as it relates to discrimination is, as I understand it from the documents, to be about the Claimant’s need to give tuition to W online and the decision that this was not suitable for W’s needs

[158]It is not set out whether the claim relies upon as a PCP or an auxiliary aid, and it could be either. Mrs Peckman and Mr Roger accepted that the complaint about not being allowed to give tuition online tuition could be about a PCP or non-provision of an auxiliary aid (and if the latter this which would thus remove the requirement for the Claimant to establish the application of a PCP).

[159]The Claimant alleges that she had suggested 4 October 2022 doing 2 days online tutoring sessions and 2 days face to face because she was struggling with her sleep and traveling. This appears to relate to all 3 impairments .

[160]The Claimant complains that she was told by Janine Pearce, Health and Safety manager of R1 that she would make a recommendation to the Trust about setting up virtual sessions but Terri Grant, lead Tutor of R1 expressed his view that they were unlikely to agree to this because W. would need a staff member to support him during virtual sessions.

[161]The Claimant also expressed her willingness to tutor another student online. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

[162]The complaints, as I understand it to be, extracting information from the various documents the Claimant has produced, are as follows:1.1 Did the respondents know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

1.2 (A “PCP” is a provision, criterion or practice).

1.3 Did the respondent have the following PCPs:1.3.1 Require in person tuition for W (not online)

1.3.2 Contacting the Claimant by telephone or means other than her personal email address after 14 November 2022 when she had asked ‘to keep all correspondence’ to her personal email address

1.3.3 Requirements for set hours for tuition for W

1.3.4 Suspension

1.3.5 Not putting the Claimant on the redeployment list

1.3.6 Only giving Claimant limited time to respond to the offer of potential work

1.3.7 Not investigating complaints and/or grievance . Page 26 of 43

1.3.8 Not offering Chance to have a union representative, friend or family with her before ‘ formal phone calls’ and meetings ( the Claimant does not identify which phone calls she is referring to as ‘formal’ or which meetings)

1.3.9 Not offering support before calls or meetings (Claimant has not identified which calls or meetings)

1.3.10 Failure to offer risk assessment : Challenges this could have identified adjustments to keep her in employment and remove barriers as a disabled employee.

1.3.11 Not offering support for the Claimant to apply for Access to Work

1.3.12 Not providing management policies when request

1.3.13 Not allowed to contact work place

1.3.14 Suspending company email

1.3.15 R. Dawkins failed to respond communications and ignored the claimant.

1.4 Did the PCPs put the Claimant a substantial disadvantage compared to someone without the claimant’s disability, in that?1.4.1 Claimant had difficulties traveling to give in person tuition due to disabilities

1.4.2 Claimant had difficulty sticking to fixed tuition times due to disabilities ( lack of sleep/fatigue)

1.4.3 Difficulty communicating other than through personal email ( the substantial disadvantage is not clearly identified )

1.4.4 Resulted in loss of pay

1.4.5 Impact on health of not working/receiving

1.4.6 Claimant can become too anxious to talk properly or talk at all

1.4.7 Not supplying management policies caused stress and anxiety

1.4.8 Not allowing her to contact place of work caused stress and anxiety

1.4.9 Suspending email account caused stress and anxiety

1.4.10 R. Dawkins failure to respond communications and ignored the Claimant caused stress and anxiety.

1.5 Did any of the above put the Claimant a substantial disadvantage but for the provision of an auxiliary aid?

1.6 Did the respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage? Page 27 of 43

1.7 What steps could have been taken to avoid the disadvantages? The Claimant suggests:1.7.1 Arrange online tuition for W and allow her to work flexible hours i.e. different times according to how her condition affects her

1.7.2 Provide the Claimant with alternative work for someone other than W who could do online tutoring and flexibly i.e. at different times according to how her condition affects her

1.7.3 Use her personal email address from 14 November 2022 when she requested this

1.7.4 Putting Claimant on the redeployment list

1.7.5 Giving Claimant more time to respond to offer of potential work

1.7.6 Investigating complaints and/or grievance .

1.7.7 Paying her while not working or giving backpay

1.7.8 Investigating complaints and/or grievance .

1.7.9 Offering Chance to have a union representative , friend or family with her before ‘ formal phone calls’ and meetings

1.7.10 Offering support before calls or meetings

1.7.11 Offer risk assessment

1.7.12 Offering support for the Claimant to apply for Access to Work

1.7.13 Providing management policies when request

1.7.14 Allowed Claimant contact work place

1.7.15 Leave claimant’s access to company email

1.7.16 R. Dawkins responding communications and ignored the claimant.

1.8 Was it reasonable for the respondent to have to take those steps and when?

1.9 Did the respondent fail to take those steps?

[163]I now turn to the other heads of claim. Direct Discrimination

[164]The Claimant was ordered to provide details of each act, the date it took place, details of what happened, the person/s concerned and how it is said to be less favourable treatment. Direct disability discrimination (Equality Act 2010 section 13) 1.10 Did the respondent do the following things:1.10.1 Did Terri Grant of R1 laugh during a telephone call on 4 November 2022 at 8.26 when the Claimant mentioned being upset that R1 and Page 28 of 43 the Trust had not implemented the adjustments, Claimant alleges that her disability was not being taken seriously.

1.10.2 Suspension of tutoring by Claimant of W. on 5 December 2022 [B2 50]. 1.11 Was that less favourable treatment? The Claimant has not named anyone in particular who she says was treated better than she was. 1.12 If so, was it because of disability? 1.13 Did the respondent’s treatment amount to a detriment?

[165]The Client complains of being given sudden notice of suspension on 5 December 2022 in her further particulars [B2 36 – 59 ] however, she does not identify what type of complaint of discrimination this is. She complains that she was told on 5 December at 9.42 in an email from Yaron Woolf [B2 48] of R1 that they had been informed that the home/R6 had “suspended tuition as of immediate effect.”

[166]R1 and R6 deny that they suspended the Claimant but maintain that it was the Trust who decided to use another agency. Discrimination arising from disability (Equality Act 2010 section 15)

[167]I shall set what I understand to be each complaint, taken from the various documents including the further and better particulars and Claimant’s witness statements; 1.14 Did the Respondents treat the Claimant unfavourably by:1.14.1 Not allowing her to tutor W. on line and work flexible hours depending on how her conditions are affecting her

1.14.2 Not provide C with alternative tutoring work which she could do online or was located closer to reduce travel time and work flexible hours , i.e. tutoring at different times according to how her conditions affects her

1.14.3 Did Terri Grant of R1 laugh during a telephone call on 4 November 2022 at 8.26 when the Claimant mentioned being upset that R1 and the Trust had not implemented the adjustments

1.14.4 Suspension of tutoring by Claimant W. on 5 December 2022. 1.15 Did the following things arise in consequence of the claimant’s disability:

1.15.1 Difficulty travelling

1.15.2 Difficulty working set times due to fatigue and pain

1.15.3 Not able to move quickly in circumstances where a student was violent toward her

1.15.4 Absence from work due to ill health

1.15.5 Inability to answer calls from Yaron Woolf in December 2022 1.16 Was the unfavourable treatment because of any of those things? Page 29 of 43 Harassment complaints

[169]I set out below what I understand the complaints of harassment to be : Harassment related to disability (Equality Act 2010 section 26) 1.17 Did the respondent do the following things: 1.17.1 Repeated telephone calls while off work sick [B2.59]. The Claimant does not set out specifically which calls she objects to. 1.18 If so, was that unwanted conduct? 1.19 Did it relate to disability ? 1.20 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 1.21 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Victimisation complaints

[170]I set out below what I understand the complaints of victimisation to be : 1.22 Did the Claimant a protected act as follows ( as per the list at page 52 and 53 of B2 and referred to at page 47/48):1.22.1 Email 10 October 2022 to Terri Grant and Coren Murley.

1.22.2 Email 3 November 2022 email to Terri Grant

1.22.3 Telephone conversation on 4 November 2022 with Terri Grant

1.22.4 Letter of 11 November 2022 to Lincolnshire CC , R1., R. Dawkins (and ‘ limited companies that have been set up in the UK and then transferred to people in the Philippines’.)

1.22.5 Send a letter on 13 November 2022 [B2 45] at 20:43 to Emma Davies, Rob Dawkins, Coren Murley attaching letter about the reasonable adjustments which had been sent to R. Dawkins, R1, Ms Cartin, Ross OUTER Ltd, Ms Padua and EM Butterworth Ltd and Lincolnshire CC.

1.22.6 On 25 November 2022 at 14:48 and 17:59 sent an email to Emma Davies, Rob Dawkins and Coren Murley and mentioned having contacted Acas and asking for details for the Acas certificates and refers to being upset and disappointed that no reasonable adjustments had been made for her disabilities

1.22.7 Yaron Woolf had called the Claimant after 14 November 2022 rather than communicate via her personal email as she had requested when he called her on 2 December 2022 and 5 December 2022 [B2 47 and 48]

1.22.8 11 December 2022 email to E. Davies. R Dawkins, C. Murley and Y. Woolf. Page 30 of 43

1.22.9 Suspension of tutoring by Claimant W. on 5 December 2022.

1.22.10 Refusing (following her emails on 11 December and 16 December 2022) to provide: the information requested namely the names of those involved, progress her subject access request, communicate with the Claimant direct and allow her to have access to the ‘Company’ [R1] email account and their policies and subject access request. 1.23 Did the respondent believe that the Claimant had done or might do a protected act? 1.24 Did the respondent do the following things:

1.24.1 The Claimant complains that she sent a text on 5 December 2022 at 8.05 to Terri Grant and complains that he did not return her message and that this left her feeling ostracised and anxious [B2p.48] and that Terri Grant did not /was told not to communicate with her because due to her ‘formal communication’ and /or contacting Acas.

1.24.2 E. Davies email of 25 November 2022: “ As soon as we have had contact with ACAS we will respond to them in the time frame given”. Claimant complains that was ‘very unhelpful’ behaviour.

1.24.3 Harassed by Y. Woolf by multiple telephone calls while too unwell to work.

1.24.4 Y. Woolf’s ‘frosty and insensitive’ behaviour in emails regarding her suspension

1.24.5 being ostracised and/or ignored in that she did not receive replies to previous correspondence [ she does not identify which correspondence, which Respondents and what the behaviour was which left her feelings ignored and ostracised]

1.24.6 Keeping all communication to her personal email account [ it is not clear whether this is a typographical error, and she is complaining that her email account was not used]

1.24.7 Loss of redeployment

1.24.8 Failing to make reasonable adjustments/ offering alternatives adjustments.

1.24.9 Not giving her a formal chance to respond/rebut the suspension before or afterwards.

1.24.10 Suspension from work and suspension without pay.

1.24.11 Y. Woolf in email 7 December 2022: “ can I please remind you that you are not permitted to contact the home directory”.

1.24.12 Respondents failing to provide the information requested i.e. the company policies, subject access request and information for Acas re her ET complaint.

1.24.13 E. Davies email OF 16 December 2022; “ We have been contacted by ACAS so will be dealing with your claim via them. As you currently do Page 31 of 43 not have any students with 1st staff , we will be suspending your email account as per company policy”.

1.24.14 Respondent’s refusing to communicate with Claimant directly.

1.24.15 Being ostracised by R. Dawkins and other directors and /or employees and workers [Claimant does not identify which individuals, what was done and on what dates] 1.25 By doing so, did it subject the Claimant detriment? 1.26 If so, was it because the Claimant did a protected act? 1.27 Was it because the respondent believed the Claimant had done, or might do, a protected act? Holiday pay claims

[171]Holiday Pay – Working Time Regulations 1998 1.28 Did the Respondent fail to pay the Claimant for annual leave the Claimant had accrued but not taken when their employment ended? 1.29 What was the claimant’s leave year? 1.30 How many days remain unpaid? Unauthorised deductions

[172]Did the respondent make unauthorised deductions from the claimant’s wages and if so, how much was deducted?

[173]The Claimant [B2 51] alleges that during her ‘suspension’ she should have received her normal pay and calculates her losses to be (16 hours x £25 per hour) : £400.

[174]The suspension she is referring to appears to be the period of from 4 October 2022 [B2 38] when she alleges Janine Pearce and Terri Grant met with her and Ms Pearce suggested a ‘rest period’ until a health care plan was in place and the virtual sessions/reasonable adjustments were put in place. Respondent’s submissions Oral submissions on behalf of R1 to R5

[175]The submissions on behalf of R1 and R5 in summary are as follows:

[176]R1 asserts that the Claimant was not its employee but that that it was an agency, and she was an agency worker pursuant to The Agency Workers Regulations 2010.

[177]It is submitted that there are no claims set out against R1 to R5 with any degree of clarity although there is a reference to a complaint of unreasonable adjustments but even taking it at its highest, the Claimant has not provided the information EJ Ahmed ordered her to provide. Page 32 of 43

[178]The Claimant it is submitted has not shown just cause why the complaints against R2 to R5 should not be struck out in their entirety.

[179]R1 has been in business quite some time and there is, it is submitted, no basis for her concern that the company will dissolve and set back up as another company and such concerns are best reserved for the payroll companies, hence there is no reason to retain individuals as respondents where R1 accepts responsibility for any proven acts of discrimination carried out in their course of their employment.

[180]A draft list of issues was prepared [B2 16-23] and sent to the Claimant on 27 April 2023 but the Claimant did not respond to the list and the list was relied upon by EJ Ahmed when identifying what further information the Claimant was required to provide.

[181]Direct discrimination: it is submitted the Claimant has not set out the facts to show she was treated in any way less favourably because of disability. No actual comparator has been identified.

[182]Discrimination rising from: Claimant has not set out what the unfavourable treatment is and who is responsible for it.

[183]Indirect discrimination: it is submitted that the Claimant has not set out a valid PCP and, in any event, it is not pleaded as an indirect claim and EJ Ahmed included it in case it was the Claimant’s intention to do so.

[184]Mrs Peckham submits that it was Nottingham County Council (Council) who put in the place the requirement for face to face learning and then the Trust and that an adjustment could not be made without the approval of the Trust.

[185]Mrs Peckman understands that R1 had a contract with the Council and then the Trust from May 2022, but R1 had no direct contract with R6.

[186]Reasonable adjustment claims: it is accepted that the Claimant made a request for an adjustment, that is clear in the narrative in the emails [B2 38-44]. It is submitted that the making of any adjustments is out-with the control of R1 to R5. All they can do is make a request for an adjustment to the funder/Trust, which is what they did. The Claimant in her further particulars refers to communication between R1 and the Council/the EHCP coordinator for W about the adjustments [B2 41].

[187]R1 is not the employer or end user but an intermediary agency. Ms Terri Grant was the lead tutor and employee of R1 [B2 38].

[188]Mr Woolf was Head of Sales and dealt with recruitment but since left employment of R1. Emma Davies is compliance director (not a statutory director). Coren Murley is Head of Education. Robert Dawkins is the MD.

[189]It is accepted that the Claimant was told that R1 was trying to put adjustments in place with the Trust and it cannot be said no attempts were made by R1 to do that but whether adjustments could be made was ultimately a decision to be taken by the Council.

[190]It is submitted that R1 to R5 would in any event have a justification defence on the basis that given the complex needs of W, [B2 135] face to face tuition was required. Page 33 of 43

[191]Victimisation and harassment: the claims are not clearly set out. The protected acts have been identified as far as R1-5 are able to identify them and set out in their proposed list of issues [B2 20]. however, it is queried whether contacting ACAS could be treated as a protected act but it accepts that the email of 13 November 2022 was capable of being a protected act however, the Claimant has not identified the acts of victimisation as against each Respondent. It is submitted that the 13 November email was sent to R4,R2 and R5 but not R3 and therefore R3 cannot be a respondent to this claim if not aware of the communication.

[192]However, I pointed out that the further particulars appear to identify a number of potential protected acts [B2 52-53] namely emails of 10 October, 3 November, 4, 11 13 and 25 November 2022 and 11 and 16 December 2023.

[193]Mrs Peckman went through each:  10 Oct 2022 email : capable of being protected act (PA)but not addressed to any of the named Respondent just to R1.  3 Nov 2022: capable of being PA but it is addressed only to R1.  4 Nov 2022: PA but addressed only to R1.  11 Nov 2022 sent to R1 and R2 only  25 Nov 2022: not a PA – requesting information from Acas and Claimant states it was sent only to R1,R2 R5, R4 and not to R3 [B2 46]  11& 16 December 2022: can be PA and sent to R1 to R5. [B2 51].

[194]The Tribunal notes that the Claimant clearly states in her further particulars that she also asserts that the Respondents believed she may do a protected act.

[195]In terms of detriments as per the draft list of issues, Mrs Peckman submits as: 11.a : no detail of defined 11.b.not properly particularised 11.c.not particularised. 11.d not particularised. 11.e not clear which emails are complained about. 11.f: that is the nature of recruitment work - turnover of jobs is quick but emails do not show that further work was removed 11.g. this appears to relate to online training and fusing her personal email address 11.h R1 denies any suspension, the Trust engaged another provider, R1 lost the contract to provide Support to W, which went to another provider, who the provider is was not disclosed to R1. 11.J the request not to contact the R6 directly is because R6 was not the employer, it is only the setting and there was no longer a requirement for the Claimant be there. Page 34 of 43 11.k lack of clarity 11.i: no obligation to communicate after legal proceedings were commenced. But this can only be R1 and no other Respondents. 11.m It is submitted that the email from Ms Davies [B2 54] was not a detriment because the Claimant was no longer tutoring W. 11.not particularised.

[196]Harassment: It is submitted that the Claimant has not identified the unwanted conduct and was ordered to explain how it had the proscribed effect and she has not done so.

[197]Her further and betters deal with this in one short paragraph [59]. It is submitted that the vague reference to multiple missed calls while she was off sick from work was distressing and created intimidating and distressing ang hostile environment, but it is submitted that she was requesting contact and also it is not clear which calls she is referring to. If it is calls from R3 [B248], she raised those in her further and better particulars as relevant to the reasonable adjustment claim and it is not clear she relies on the same calls for her harassment claim. EJ Ahmed had set out clearly was information was needed in his orders [B212/13].

[198]Unlawful deduction of wages and Working Time regulations : No claim can be brought against R2 – R5 who are individuals. Further, R1 is not the employer and when not providing tuition the only right she had was to SSP as against the employer/umbrella company and she has not ser out what period or amount she is claiming, and it is for her to do that. The same applies to the claim for holiday put under WTR, R1 to R5 not the employer.

[199]Notice pay/ unlawful deductions: There was no termination it is submitted by R1, who was not her employer.

[200]TUPE- failure to inform and consult: The claim is against the umbrella companies; it cannot be brought against individuals and 2 of the companies are now dissolved.

[201]It is accepted by R1 that the Claimant was a contract worker for the purposes of section 41 EqA as against R1 and section 3 (1)(b)(ii) of the Agency Workers Regulations 2010.

[202]It appears from the pleadings and documents, that the Claimant was directly employed by the various payroll companies, and her employed transferred between them. There was no information or consultation however, the only change appeared to be the identity of the employer.

[203]W resided at R6. He was allocated funding by the Council and then from May 2022 by the Trust for his tuition. The Council/Trust had a contract with R1 for them to find a tutor. R1 paid the payroll companies. The Claimant provided her services to W and was paid via the payroll companies. It appears that the Trust/Council was the ‘end user’ or principal who dictated the tuition to be provided, the hours of work and the method of delivery. R1 had no presence on the site and R6 had its site rules that needed to be complied with for H & S reasons.

[204]Mrs Peckman invites the Tribunal to strike out claims because of the failure by the Claimant to provide all the information requested and the time spent clarifying the claims at this hearing, shows how difficult that still is given the Claimant’s default. Page 35 of 43

[205]As to deposit orders the Claimant has stated only in her witness statement ( para 5) that she has very little income but not details of her means has been provided. Submissions on behalf of R6

[206]Mr Rogers in brief relied on the written application of 10 July 2024 [B2 64]. It is submitted that the Claimant has failed to properly particularise her claim and that she has failed to identify any claims against R6, who was not her employer, and that the Claimant was essentially no more than a visitor to the premises.

[207]Ms Clay was the Supported Living Manager ( Home Manager ) of R6, she raised concerns about the Claimant’s tuition of W including the impact on the frequency of the Claimant’s absence add delivered their Input to R1. As far as R6 was concerned, the Claimant was engaged by R1. It is submitted in essence that there are no claims which can be brought against R6, in terms of victimisation claim, there is no pleaded case in the particulars of claim or further and better particulars against R6.

[208]The harassment claim appears to relate to multiple missed calls against R2, an employee of R1. There are no complaints that relate to R6 or any of its employees. Conclusions and Analysis

[209]The EqA contains specific provisions prohibiting discrimination against contract workers (such as agency workers) by the end user of their services (known in the Act as a ‘principal’).

[210]S.41 provides that a principal must not discriminate against or victimise a contract worker: as to the terms on which the principal allows the worker to do the work — S.41(1)(a) and (3)(a) by not allowing the worker to do, or to continue to do, the work — S.41(1)(b) and (3)(b) in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service — S.41(1)(c) and (3)(c), or by subjecting the worker to any other detriment — S.41(1)(d) and (3)(d).

[211]Section 41(2) further provides that a principal must not, in relation to contract work, harass a contract worker, while S.41(4) states that a duty to make reasonable adjustments applies to a principal (as well as to the employer of a contract worker).

[212]Contract workers enjoy separate protection from discrimination by their employer (typically, the agency for which they work and which places them with the principal) under S.39 EqA in the normal way.

[213]Furthermore, a contract worker is protected, under S.55, from discrimination at the hands of an ‘employment service-provider’.

[214]S.56(2) stipulates that employment services include ‘the provision of a service for finding employment for persons’ and ‘the provision of a service for supplying employers with persons to do work’. Thus, where an agency worker’s Page 36 of 43 relationship with the agency does not fall within S.39, it is likely to be covered by S.55.

[215]Section 41(5) defines a ‘principal’ as a person who makes work available for an individual who is:(a) employed by another person and

(b) supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that other person is a party to it).

[216]S.41(6) defines ‘contract work’ as work of the type mentioned in S.41(5), i.e. work made available by a principal. S.41(7) goes on to define a ‘contract worker’ as an individual supplied to a principal in furtherance of a contract to which the principal is a party.

[217]The EHRC Employment Code, which states: ‘There is usually a contract directly between the end-user and the supplier, but this is not always the case. Provided there is an unbroken chain of contracts between the individual and the end-user of their services, that end-user is a principal, and the individual is therefore a contract worker’ — para 11.8.

[218]MHC Consulting Services Ltd v Tansell and anor

2000 ICR 789

, CA, T was not an employee of the agency that supplied his services to the end user. T was a computer specialist who, in order to secure the benefits of limited liability, had chosen to provide his services through the establishment of his own company. He was employed by this company (in this case it would appear that the various payroll companies are the employer), which contracted with an employment agency (in this case that would potentially and arguably be R1) which in turn supplied T’s services to an insurance company (in this case potentially The Council and then the Trust).

[219]The Court of Appeal upheld the EAT’s decision that T could bring a complaint of disability discrimination against the insurance company (the end user, or, to use the language of the EqA, the principal).

[220]Lord Justice Mummery, delivering the judgment of the Court, thought it irrelevant that there was no direct contractual relationship between the limited company that employed the individual and the insurance company that made the work available. Taking into account the underlying purpose of the discrimination legislation, the Court considered it more probable than not that Parliament had intended to confer protection in these circumstances.

[221]What has not yet been disclosed are the contractual documents as between R1 and the putative employer or the putative end user/principal (i.e. The Trust). The latter is not currently a party to these proceedings.

[222]In Leeds City Council v Woodhouse

2010 IRLR 625

, CA , the Court of Appeal made obiter comments advising tribunals that the question whether a contract worker falls within the discrimination legislation should not be dealt with as a preliminary issue unless the case is very straightforward. The scope of evidence relevant to the applicability of S.41 might not be immediately obvious to a tribunal and, as the issue is largely one of fact, it should ideally be determined by a full tribunal rather than by an employment judge sitting alone. Page 37 of 43

[223]The issue for determination at this hearing, was not whether the Claimant is covered by the discrimination legislation, outside of a consideration of reasonable prospects.

[224]However, R1 concedes during this hearing, that the Claimant was a worker of R1 for the purposes of section 41 EqA and section 3 (1)(b)(ii) of the Agency Workers Regulations 2010.

[225]R10 accepts it was the Claimant’s employer from 6 to 9 December 2022. Reasonable adjustments

[226]It remains unclear from the documents submitted by the Claimant what her status was visa vie R6 and thus how the actions of R6 (or their employees) may be covered by the EqA.

[227]The Claimant only mentions in her further and betters that Ms Clay the Care Home Manager had expressed interest in possible revisions to her working arrangements, but these were adversely commented on by others [B2 37].

[228]The Claimant in her further and better particulars mentions the extent of the discussions as between R1 and the Lincoln County Council in her particulars, (however, it would seem that those conversations were in fact with the Trust), about adjustments [B2 37 -38] and her direct involvement of R1 staff in making suggestions and trying to accommodate those adjustments.

[229]There is reference to Ms Clay’s response to text messages on 2 November 2022 [ B2 42] but the Claimant does not appear to complain about those responses. She also refers to a message not answered on 3 November 2022 [B2 43] and mentions a conversation on 4 November 2022 but alleges Ms Clay was supportive of her reasonable adjustment request [B2 44/45].

[230]In terms of victimisation complaint, the Claimant does not allege any protected act (PA) was to R6 or any of its staff [B2 53/54] and does not name any of the staff of R6 or R6 in respect of any alleged detriments.

[231]The Claimant mentioned R6 in her statement [CB 3] but only in vague and general terms, that they could have had the trial period of a reasonable adjustment.

[232]The Claimant accepts expressly [B2 58] that the complaints of TUPE are not against R6 in her further particular and in her statement [CB 5] also confirms that the claims of holiday pay, and unlawful deductions of wages also do not involve R6.

[233]The Claimant has not identified ( as above) any claims of direct discrimination, or section 15 claims, or harassment, as against R6 or its staff and she has provided further particulars and now a statement.

[234]Even taking the Claimant’s case at its highest, on her pleaded case and taking into account her further and better particulars, witness statement and the documents produced, it is not possible to identify any claims specifically against R6 (or its staff) and that, R6 on the evidence, was nothing other than the business which runs the accommodation where W. lived and where the Claimant visited to tutor W.

[235]There are no reasonable grounds, taking the Claimant’s case at its highest to Page 38 of 43 find that R6 was an employer, a principal or otherwise was covered by the provisions of the EqA as far as the Claimant is concerned.

[236]The claim of a failure to make reasonable adjustments, is not a claim which can be brought against individuals, the obligation to make adjustments rest with the employer.

[237]In terms of the claims of a failure to make reasonable adjustments against R1 and R10, R10 has not responded to the complaints other than to say it had no control over the Claimant or the site as her employer however, there may be an issue over the extent to which it should have taken steps to try and put in the place the required auxiliary aid/adjustments with R1 and/or the funder/principal.

[238]While the status of the various companies as yet to be clarified and determined, the claim of a failure to make reasonable adjustments will not be struck out. Taking the Claimant’s case at its highest, certainly R1 was involved directly in discussions about the adjustments she had requested and the claims which will proceed at least at this stage, are set out above as adjustments and/or absence of auxiliary aids: para 1.3.1 to 1.15.

[239]The claims of discrimination, victimisation or harassment, pursuant to the EqA, as against R2, R3, R4, R5 and R6 have no reasonable prospect of success and are struck out under Rule 37. Discrimination complaints

[240]In terms of the complaints of discrimination, taking the Claimant’s case at its highest, in general terms it cannot be said and nor does R1 assert, that there is no legal basis for claims against it ( or its employees) pursuant to the EqA.

[241]The Claimant does not in her particulars of claim, further particulars or witness statement identify any complaints of discrimination, victimisation or harassment, as against the individuals R7,R8 and R9.

[242]The claims of discrimination, victimisation and harassment, brought under EqA as Respondents R7, R8 and R9 have no reasonable prospects of success and are struck out under Rule 37. Direct discrimination: section 13 EqA

[243]The claims of direct discrimination identified above as claims1.10.1 and

1.10.2 will proceed as against R1 only.

[244]The Claimant has not it appears pleaded that the claim of direct discrimination as against R10 or explained on what basis ( if it is her case) they have had responsibility for the actions of Terri Grant or the suspension of the tutoring and in any event has not set out any basis for alleging that R10 carried out any acts because of her disability.

[245]The claims of direct discrimination under section 13 will proceed against R1 only and are struck out as against any other respondent under Rule 27 on the grounds they have no reasonable prospect of success. Something arising from : section 15 EqA. Page 39 of 43

[246]The claims are sufficiently clear as set out in the draft list of issues however, the Claimant has not identified which individual Respondents she alleges committed what alleged acts of unfavourable treatment.

[247]These claims will proceed as against R1 only. There are, on the case as set out by the Claimant, no reasonable prospects of success against the individual Respondents under Rule 37 and the Claimant does not allege that R10 carried out the acts or any of its employees . Victimisation

[248]The complaint of victimisation appears to be from the Claimant’s pleaded case and provision of further information, complaints about the conduct of certain individuals; Terry Grant, Emma Davies, Yaron Woolf, and Robert Dawkins.

[249]The claims have been identified as set out above (para 1.21.2 to 1.21.13).

[250]The Claimant has not identified claims against any other named Respondents. R1 accepts a number of PA and whether or not any individuals who it is alleged subjected the Claimant to detriments, was aware of those PAs will need to be determined at a full hearing.

[251]While it is argued some alleged PAs do not qualify as PAs, the Claimant also complains that the Respondent believes she would do a PA.

[252]It cannot be said that the claims as against R1, R3 and R4 have no reasonable prospect of success.

[253]The claim however against R2 has still not been identified. A vague allegation without any further details of being ostracised and ignored does not have reasonable prospects of success and therefore the claims as against R2 is struck out under Rule 37. The Claimant was ordered to identify the detriment complained of. Harassment

[254]I consider that it is reasonable clear from the Claimant’s pleaded case that she is complaining about the calls from R3 [B2 48] and in terms of their effect, she describes how it was distressing and created a hostile environment. She was called while absent on sick leave because of her disability as I understand it from her claim.

[255]It cannot be said at this stage, taking her case at its highest, that the complaint has no reasonable prospect of success, and it will proceed as against R1 and R3. There are no reasonable prospects of this claim succeeding against any other respondents and not does the Claimant appear to pursue it against any to her Respondent. Indirect discrimination

[256]Employment Judge Ahmed requested the Claimant provide further particulars if she was pursuing an indirect discrimination complaint.

[257]In her original particulars of claim [B2 91] she identified the provisions of the EqA she was relying upon which included section 13, 15, 20/21, 27 and 123. She did not refer to section 19. Page 40 of 43

[258]Employment Judge Ahmed made it clear what details were required if she was alleging indirect discrimination [B2 12] however, the Claimant did not in her further particulars provide the information requested but also did not refer to indirect discrimination, she against listed the relevant sections of the EqA and this did not include section 19 and she makes no reference to indirect discrimination, despite the express refer to it in Employment Judge Ahmed’s orders.

[259]I conclude that the claim does not, as pleaded, include a claim under section 19 of indirect discrimination. Analysis on unauthorised deduction claims/WTR

[260]The Claimant does not identify who the claim is brought against and does not refer to any specific contractual terms which provides that she is entitled to payment ( rather than sick pay) in these circumstances and from which Respondent.

[261]I am not content however to strike out these claims given the lack of clarity over the various entities through which she worked.

[262]It appears that PA Rigby Limited was her employer and was responsible for paying her wages based on what R1 had confirmed were the hours of work she had worked . PA Rigby is in the Terms and Conditions document, stated as responsible for holiday pay, wages and sick pay but it refers to R1 as the ‘hirer’ who will pay the Claimant for the hours she had worked for them, via a third party. While it appears that R10 is the employer for these purposes, R1 accepts she was a worker engaged by it on assignments.

[263]Until the employment status and contractual relationship of the various entities is determined, and there has been limited disclosure so far, I do not consider at this stage it is possible to determine that there is little or no reasonable prospect of success in this claim as against R1 and R10. The same considerations apply in terms of her right to holiday pay under the WTR.

[264]The Tribunal find that this claim against the remaining respondents, has no reasonable prospect of success and it struck out under Rule 37 because it is not alleged that the Claimant was an employee or worker for these purposes, of any of the named individual Respondents. The claims of unlawful deductions of wages and WTR as against R2 through to R5 and R7,R8 and R9 are struck out. Other claims not sufficiently particularised Failure to follow a process.

[265]The Claimant [B2 p.51] complains about a failure to offer an absence management meetings or warn her that her attendance was causing a problem and failed to refer her to OH and/or failed to follow any fair procedure.

[266]The Claimant refers to this as acts by the ‘Respondent’ but does not allege which Respondent she is referring to .

[267]The Claimant does not identify what type of complaint this is i.e. direct discrimination, victimisation, something arising from, etc. This is a matter which will be addressed in a case management order. Deposit Order Page 41 of 43

[268]The tribunal retains a discretion to make a deposit order under Rule 39 even where there appears to be little merit in a claim. The power has to be exercised in accordance with the overriding objective to deal with cases fairly and justly having regard to all of the circumstances of the particular case: Hemdan v Ishmail and anor

2017 ICR 486

, EAT. This means that regard should be had, for example, to the need for active case management.

[269]In order to deal with this case fairly and justly, there will be a further telephone case management hearing, where the claims which are to proceed will be discussed further with the Claimant. We can now focus on the claims which have been identified from the various documents the Claimant has provided as part of this hearing, and identify clearly what further particulars of those specific claims are required. Further consideration may be given at that stage to whether it would be appropriate to make any deposit orders.