Mr W Donaghue v Steamin Billy (Oadby) Ltd: 2600693/2022

EMPLOYMENT TRIBUNALS

Case No 2600693/2022

Between

Mr W DonaghueClaimant

Steamin Billy (Oadby) LtdRespondent

Before

Employment Judge Fredericks

Mrs J Duane (instructed by Counsel) for respondent

Date 28 April 2024

JUDGMENT

[1]The claimant’s claims in respect of ‘detrimental treatment and bullying and harassment as a result of association with someone who is disabled’ are dismissed upon withdrawal.

[2]The claimant was not at any time an employee or worker of the respondent.

[3]Consequently, all of the claimant’s remaining claims are dismissed because the tribunal has no jurisdiction to hear them. Employment Judge Fredericks Date: 9 August 2022 1 of 2 Case Number: 2600693/2022 ……………………………. ……...…………………….. NOTE: Oral reasons for the decision were given at the hearing. Written reasons will not be provided unless requested in writing within 14 days of the sending of this judgment 2 of 2

[1]The claimant’s claims in respect of ‘detrimental treatment and bullying and harassment as a result of association with someone who is disabled’ are dismissed upon withdrawal.

[2]The claimant was not at any time an employee or worker of the respondent.

[3]Consequently, all of the claimant’s remaining claims are dismissed because the tribunal has no jurisdiction to hear them.

REASONS

[1]This preliminary hearing was listed following a telephone case management discussion heard by me on 1 June 2022. It was initially listed for one day but was extended to two days by agreement of the parties to allow all of the relevant evidence 1 of 22 to be heard. These reasons are produced at the claimant’s request following promulgation of my written judgment. I gave judgment with oral reasons on the second afternoon of the hearing.

[2]The claimant initially brought a variety of claims, but those remaining live at start of the hearing were: 2.1. Unfair dismissal; 2.2. Breach of contract (including notice pay); 2.3. Detrimental treatment and bullying and harassment as a result of association with someone who is disabled; and 2.4. Redundancy payment.

[3]To repeat the positions of the parties in respect of the claim from a previous case summary, the claimant claims that he was an employee of his former wife, Ms Lord, who was the licensee of a public house belonging to the respondent. He says that the respondent took control of the premises when it ended the agreement between it and Ms Lord, and that at this point he transferred into the respondent’s employment by way of a TUPE transfer. The claims for unfair dismissal and redundancy payment are made following the respondent’s treatment of him following his alleged transfer. During the course of the hearing, I note, the claimant’s position altered slightly in that he began to allege that his employment should have transferred to the new ‘Manchisee’ rather than the respondent.

[4]The respondent denies that the claimant was an employee and asserts that he was a self-employed contractor known internally as a ‘Manchisee’ operating a pub as a licensee. It says that the TUPE regulations did not apply. Additionally, the respondent avers that its relationship with the claimant was terminated in the manner provided by the agreement for services between the parties dated 26 October 2016. At the hearing, the respondent further argued that Ms Lord was not the ‘Manchisee’ and that the claimant was not employed by her.

[5]The hearing took place through a hybrid format. The claimant and his representative attended in person in Leicester, where I sat each day. All other parties and witnesses dialled in remotely on the Cloud Video Platform. Advocates and witnesses

[6]The claimant was represented by Mr Johnstone, who operates as an employment tribunal advocate. The respondent was represented by Mrs Duane, of Counsel. During the course of the hearing, I had access to a bundle of documents running to 344 pages. Reference to page numbers in these reasons refer to page numbers in that bundle.

[7]I heard evidence from the following witnesses for each of the parties: 7.1. For the claimant – 7.1.1. The claimant himself; 7.1.2. Ms Lord, the claimant’s former wife whom he says was his employer; 7.1.3. Mr Rocky Leanders, former finance controller at the respondent; and 7.1.4. Mr Leighton Turner, former operations manager at the respondent. 2 of 22 7.2. For the respondent – 7.2.1. Mr William Allingham, the managing director and founder of the respondent; 7.2.2. Mr Christian Roberts, the operations manager of the respondent; and 7.2.3. Ms Rebecca Davis, the financial controller of the respondent.

[8]I found the presentation of the witness evidence supporting the claimant’s case to be unusual. Upon joining the CVP, Mr Leanders did not know the name of the claimant whose case it was said he would be supporting. I am unclear how Mr Leanders could have prepared and authorised the witness statement and its contents put in on his behalf without knowing this information. Despite this reservation, I treated Mr Leanders’ evidence as I would any other witness.

[9]Mr Johnstone also presented me with several versions of witness statements, some of which were signed but not formatted and some of which were unsigned but were formatted. In respect of Mr Leanders’ statement, I was given signed and unsigned versions of the statement, which were different to each other. The signed version contained the sentence: “I am not an employment lawyer and would not presume to give inclination in any such capacity and can only state for the record that it is my understanding, via Christopher Sowman of Kenneth Law Sowman and Co, that Mr Donaghue was an employee of Mrs Lord”. The unsigned version did not have this sentence in it. The signed version contained a header in square brackets which read: “[standard mantra template to be inserted after final proof by CJ]”, and was clearly not initially intended to be a final form document.

[10]Mr Johnstone was not aware of the discrepancy and advised me to adopt the versions of the statements which were signed by the relevant witness. I was content to do this, although I should note that some of those versions did not contain paragraph numbers and so in cross examination Mrs Duane referred to the statements which did have paragraph numbers on.

[11]I was unsure that the final witness statement signed by Ms Lord was intended to be the filed version, either. The signed copy given to me, which was adopted, had paragraph 5 in a different font and a similar note for a “final declaration mantra to be inserted by CJ”. Clearing up these points took some time at the outset of the hearing.

[12]Ultimately, the written statements from Ms Lord, Mr Leanders and Mr Turner were incredibly short and lacking in any discernible detail. I do not consider that the respondent or Mrs Duane were prejudiced in any way by confusion about versions of the statements because, naturally, the evidence of those witnesses needed to be extracted in cross examination in order for the detail to be understood. I am grateful for the patience of those witnesses during my questions where I was seeking clarification on the points raised in their statements and what their evidence was on the salient points. Generally, I took the witness statements from the claimant’s witnesses as evidence in chief, although I am conscious that they contain many bald assertions in language particular to Mr Johnstone and so I treat those parts with some caution where the witnesses did not confirm those statements in cross examination. 3 of 22 Other preliminary and procedural points

[13]Mr Johnstone advised at the outset of the hearing that the claimant was withdrawing his claim in relation to detrimental treatment following association with a disabled person. Mrs Duane offered no objection to the withdrawal, although she did note that the respondent had been put to cost in preparing to deal with it. I confirmed that that head of claim would be dismissed upon withdrawal.

[14]It was clear from the file that the litigation between the parties has been heated. Most of the correspondence was not relevant to the matters before the hearing, save that there were several applications for strike out made by the claimant which had not been determined by the outset of the hearing. It is apparent from the responses by the judges receiving those applications that there was some uncertainty about the grounds upon which they were being advanced. Each of the applications had been opposed in writing by the respondent’s solicitors. Mr Johnstone confirmed that all outstanding applications to strike out the respondent’s case were to be withdrawn at the outset of the hearing. Mrs Duane reserved the respondent’s position on costs in relation to dealing with the strike out applications and other correspondence on the tribunal file.

[15]Mrs Duane then made an application to strike out the claim at the outset of the hearing on the basis that there could have been no TUPE transfer on the claimant’s own case because, even if the claimant was employed by Ms Lord, Ms Lord was a self employed subcontractor and therefore none of hers or the claimant’s employments (if any) could have been caught by the TUPE regulations and transferred to the respondent. I considered that there were relevant matters which were disputed between the parties and which should be tested in evidence. In my view, it would be premature to strike out the claim on the first morning without hearing the evidence. Given that the parties were present and prepared to deal with the case over two days, it was, in my judgment, more proportionate to use that time for the parties to put their respective cases to me. I refused the application.

[16]Mrs Duane’s application, though, did highlight the absence of detailed pleading around the claimant’s claimed TUPE transfer. On 21 July 2022, the tribunal ordered the claimant to provide the respondent with the dates that he says he was employed by his wife, and the date upon which his TUPE transfer to the respondent allegedly took place. The claimant did not comply with this order and so the matter remained outstanding at the outset of the hearing.

[17]The claimant’s pleadings state, in relation to TUPE: “He shall put to proof by way of Legal precedence that he is and employee weather implied and or absorbed through the migration of business pertaining to the T.U.P.E Act 2006”. It was then said, broadly, that the claimant understood that the public house would be closed down only to discover that it would in fact be passed to someone else to run. The pleading in relation to TUPE closed with “this left the claimant in no man’s land and it is presented in a Respectful manner to the Court that a series of events which followed on behalf of R1 R2 and R3 were both in contravention of statutory Law in addition to contravention of T.U.P.E Regulations 2006, and even extraordinarily stretched into contravention of Criminal Law under the Criminal Justice Act”. 4 of 22

[18]In the ensuing discussion, Mr Johnstone advised that the claimant’s case is that he was employed by his wife from August 2016 to the end of 19 December 2021 and that his transfer to the respondent took place from the start of 20 December 2021. He says he was dismissed from this employment almost immediately when being asked to vacate the premises.

[19]Finally, I should record that the claimant’s witnesses appeared not to have been furnished with a copy of the hearing bundle prior to the start of the hearing. There was, therefore, an adjournment of around an hour on the first morning of the hearing to allow bundles to be provided to those witnesses in order that they could answer questions about the evidence they had given in their witness statements. Issue to be determined

[20]The open preliminary hearing was listed to determine the following issues: 20.1. Was the claimant(1) an employee of his wife,

(2) a worker for his wife, or

(3) neither an employee or a worker, but a self-employed contractor? 20.2. If the claimant was an employee of his wife, did his employment transfer to the respondent by way of a TUPE transfer? 20.3. Was the claimant ever employed by the respondent? 20.4. Do any of the claimant’s claims against the respondent survive the determination of issues (a), (b) and (c) above? 20.5. What, if any, case management orders should be made to prepare for a final hearing?

[21]These issues had been modified slightly by the start of the hearing. The claimant did not seek at any point to argue that he was a worker of the respondent, although I have considered the point in reaching my decision because of the requirement upon me to make a factual finding about the claimant’s employment status.

Findings of fact

[22]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. These facts are found on the balance of probabilities which means, after consideration of the evidence provided in the bundle and the hearing, they are found on the basis that they are more likely than not to have occurred in the way I set out below.

[23]On 27 January 2016, the claimant e-mailed Mr Allingham of the respondent asking him to sponsor an event that the claimant was organising. After making his pitch, he signed off this e-mail with “PS. I still live in hope that I can run a Billy pub” (pages 52-53). This led to a conversation about the claimant working in or running a pub. On 24 May 2016, Mr Turner (who was at that point the operations manager at the respondent) e-mailed the claimant (page 54) to ask him if he could(1) do a couple of shifts at the Dog & Gun to get a feel for the pub, and

(2) compile a business proposal about how the claimant could increase trade at the Dog & Gun. Mr Turner 5 of 22 also advised the claimant that the position of Manchisee was a ‘live in’ position and that a personal licence was required together with registration as a business and employer. The claimant is also informed that he would be presented with a contract when he came to do a shift at the Dog & Gun. Set up of the disputed franchise at the Dog & Gun

[24]On 1 August 2016, an internal e-mail at the respondent about marketing material discussed the landlord of the Dog & Gun (page 55). In that e-mail, the claimant is described as “the new landlord”. Mr Allingham was copied into that e-mail. A personal licence to sell alcohol was granted to the claimant by Blaby District Council from 5 August 2016 (page 35). The claimant was named the ‘designated premises supervisor’ at the Dog & Gun on the premises licence issued by Charnwood Borough Council on 31 August 2016 (pages 36-38).

[25]There is a conflict in the evidence from the parties about the initial engagement in relation to running the Dog & Gun. The claimant says that Ms Lord assumed the role of the Manchisee in practice. This view is supported by:(1) Mr Leanders, who was at the time the financial controller of the respondent,

(2) Ms Lord herself,

(3) Mr Turner, who was at the time the operations manager at the respondent, and

(4) correspondence from Ms Lord’s accountant Mr Sowman. The respondent says that the claimant was always the Manchisee. This view is supported by (1) Mr Allingham, (2) Mr Roberts, who took over from Mr Turner, and (3) Ms Davies, although she was not working at the respondent during this initial period.

[26]During the setting up of arrangements between the parties, Ms Lord was nominated to be the contact on the respondent’s system for the purposes of payment of monies due to the Manchisee at the Dog & Gun. In his witness statement, Mr Leanders said that he, as the financial controller, “instructed Ms Lord to migrate the title and position of Manchisee to herself in both title and responsibility”. On 2 August 2016, he emailed Ms Lord (page 248) to advise that she had completed the paperwork well. He then said: “Just a quick one on the Manchisee page – please change the name to you (from Richard) and select VAT Registered “No””. The claimant explained that, on his case, he was intended to be the Manchisee but that this got altered very quickly. He considered that he became employed by Ms Lord in around July 2016 and began to receive PAYE payments with other Dog & Gun staff from Ms Lord in August 2016. Mr Turner agreed with this view, and added that he was informed by ‘the officers’ that Ms Lord would be the Manchisee. He said he then confirmed this with the ‘company accountant’. I pause here to note that, of the cast list in this case, only Mr Allingham has been (and still is) listed as a director of the respondent.

[27]Ms Lord’s accountant, Mr Sowman, did not give evidence in the hearing for fear of a conflict of interest with the respondent, whom he also acted for. However, in an email dated 23 February 2022, he expressed the view that Ms Lord must have been the Manchisee as this accorded with his understanding and explained why the monies due under the contract were paid to his firm and then into Ms Lord’s bank account (pages 188-189). Plainly, the weight I am able to give his evidence in terms of why he thought this to be the case is limited by his lack of attendance. However, the point he makes about the mechanism of payment, together with the e-mails where he is discussing tax matters and chasing the respondent for matters pertaining to Ms Lord during the operation of the franchise (pages 56, 80, 94, 96, 113, 147-148, 6 of 22 155-156) does support the contention that(1) he understood Ms Lord to be the Manchisee, and more importantly

(2) that Ms Lord was registered with the respondent as the person receiving payments in respect of the Dog & Gun and who did receive payments in respect of the Dog & Gun. In the absence of sworn witness evidence from Mr Sowman, I do not consider that I can draw any other factual findings on the basis of the contents of e-mails he wrote when prompted some years after the relevant time for this issue. I could not, for example, test whether his understanding was well founded or reasonable.

[28]The respondent says that any payment of monies to Ms Lord does not mean that she was the Manchisee and relies on there being no written confirmation of that appointment as well as correspondence between the parties at the relevant period. It says, and I accept, that the claimant provided Ms Lord’s bank details when giving details for the account to which payments under the agreement were to be made. All of the respondent’s witnesses explained that the decision about appointing a Manchisee would be authorised by Mr Allingham and that any change to the Manchisee would also need to be authorised by Mr Allingham. Mr Leanders confired this, too, and his live evidence did not cover any occasion upon which Mr Allingham appointed Ms Lord as the Manchisee. Mr Allingham says he considered the claimant to be the Manchisee.

[29]Under cross examination, Mr Allingham accepted it was possible that others in the organisation might be mistaken, but he was clear that he and everyone in post from late 2016 considered the claimant to be the Manchisee and treated him that way. Nothing put to the respondent witnesses in cross examination dislodged this point of view, despite Mr Johnstone’s persistent questioning and occasional inflammatory response to the answers given. I am satisfied that, as a matter of fact, Mr Allingham was the person at the respondent who decided or authorised the appointment of manchisees. Mr Allingham is sure that he never authorised Ms Lord to be the manchisee. He says that he authorised the claimant becoming the manchisee. I can discern no reason, on the balance of probabilities, not to take this point at face value, but, before drawing a firm conclusion on the point, I should consider the other relevant facts.

[30]By October 2016, the respondent had recognised that it needed to formalise the granting of the Dog & Gun franchise to support, I was told, the naming of the claimant on the alcohol licence and as the designated premises supervisor. On 18 October 2016, the claimant e-mailed Mr Allingham with the title “progression” to advise that he was available for a meeting (page 57). A day later, the claimant accepted an invitation to a meeting bearing the title “Meeting – Bill Donaghue” and which had the note “Need signed agreement, check with sowman all hmrc up to date, QPP results from Cindy” (page 58). The meeting was to take place on 20 October 2016.

[31]On 26 October 2016, the claimant signed an agreement described as “Agreement for services (agreement) for self-employed licensee/Manchisee”. The agreement was said to be between the claimant and the respondent (defined as the hirer). The claimant was named as the licensee/Manchisee. There is no version presented signed by the respondent. A copy of the agreement is at pages 39-44. For the purposes of this dispute, the most relevant terms of the agreement are:- 7 of 22 31.1. Clause 2.1 – “The effective date of this agreement is the …. day of….. 2016” (with no date inserted); 31.2. Clause 3.1 – “The licensee/Manchisee is placed by the hirer as the selfemployed licensee/Manchisee at ……. On the terms and conditions set out in this agreement” (with no premises address inserted); 31.3. Clause 3.4 – “The hirer is not obliged to supply the licensee/Manchisee with work” 31.4. Clause 3.5 – “Equally, the licensee/Manchisee is not obliged to accept an assignment and is free to agreement to other organisations. A refusal of work will not preclude the licensee being offered further assignments”; 31.5. Clause 4 generally sets out the payment terms for payments due to the licensee/Manchisee. The wording used is that “the hirer shall pay to the licensee/Manchisee…”; 31.6. Clause 4.3 – “The gross pay percentage indicated above is inclusive of all staff wages; 31.7. Clause 4.4 – “The amount is paid in gross terms as the licensee/Manchisee, being self-employed, is responsible for declaring to the appropriate authorities the fees paid in order that the required tax and national insurance contributions can be calculated and applied” 31.8. Clause 5 – “The licensee/Manchisee is free to employ and pay his own staff as he sees fit..” 31.9. Clause8.1 – “The licensee/Manchisee is required to work as many hours necessary in order to ensure the efficient operation of the business”; 31.10. Clause

8.2 – “As this engagement is self-employed status, the Working Ties Regulations 1998 do not apply”; 31.11. Clause 9.1 – “The notice period is four weeks, served in writing by either the hirer or the licensee/Manchisee; 31.12. Clause 13.1 – “The licensee/Manchisee shall unless notified to the contrary by the company occupy the living accommodation (where available) free of charge….”; 31.13. Clause 13.1.1 – “The licensee/Manchisee only has temporary license to occupy the living accommodation whilst engaged under this agreement for services; 31.14. Clause 16.1 – “I have read and thoroughly understand my rights and obligations as expressed in this agreement for services and accept the expressed terms and conditions referred to and acknowledge receipt of a copy of this agreement”. Correspondence with the claimant after the signing of the agreement 8 of 22

[32]On 27 February 2017, the claimant e-mailed the respondent to advise that he would be on holiday for a week and that his daughter Shelby would be moving into the flat to take responsibility for the business. He said she would need help with some areas and advised that he would not be able to do the stock take on the Monday. The email is from the Dog & Gun’s e-mail account but is signed from “Bill D” (page 59).

[33]On 30 March 2017, Mr Roberts e-mails the Dog & Gun’s e-mail account to outline a discussion held earlier in the day. The e-mail is addressed to “Bill” and contains advice about initiatives to grow the business. It includes the line “remember we are here to support you to help and support you and make sure Business grow” (page 60).

[34]On 23 April 2017, in a conversation about how to care for table tops in the premises, an e-mail was sent from the Dog & Gun account to the respondent which was signed off “Anita and Bill” (page 61). On 19 May 2017, Mr Roberts e-mailed the Dog & Gun account to report that a complaint had been received about noise. The e-mail was addressed to “Bill”. Ms Lord replied on 21 May 2017 and referred to the living area at the premises as ‘our’ as if it belonged to both her and the claimant. It is clear to me that Ms Lord was living at the premises at this time.

[35]On 3 August 2017, the claimant e-mailed the respondent to discuss an application for holiday cover (page 66). It is clear from the e-mail, signed from “Bill D” that the cover was for the claimant’s absence and that he had made the application. A similar e-mail, signed “Bill” appears from 24 September 2017 (page 68).

[36]On 22 November 2017, Mr Roberts e-mailed the Dog & Gun e-mail address with the September accounts (page 69). The e-mail begins with “Hi Bill”. There are similar emails, beginning the same way, from 17 January 2018 at page 76, 27 February 2018 at page 81, 12 November 2018 at page 97, 28 January 2019 at page 99, 6 March 2019 at page 107, 16 July 2019 at page 116 (to which the claimant replied), 9 September 2019 (page 123). I am satisfied from all of the evidence that the respondent addressed all initial e-mails relating to Manchisee matters to the claimant at that address, and not to Ms Lord. It is also clear that Mr Roberts’ confidence in the claimant to open and read, or to understand, the documents was waning as time went by. On 16 July 2019, Mr Roberts said “I’m sure you will not even open this but here goes”. On 9 September 2019, Mr Roberts said “if you would like to go through this so you have a better understanding of it then please let me know”.

[37]On 23 January 2018, the claimant sent an e-mail to Mr Roberts which reads (page 79): – “Morning Just a reminder I asked in Dec for a meeting regarding manchisee payment and also I’d like some better tables from Oakham if possible pref the long thin ones. Thanks Bill Mr Donaghue” 9 of 22

[38]Under cross examination, the claimant alleged that this e-mail was sent under the instruction of Ms Lord who was the person with the query. He could not explain what the matter was about or why there is no record of Ms Lord asking questions about this manchisee payment. It is possible, in my view, that the query was relating to a tax query. I am satisfied from the parties’ evidence that Ms Lord was responsible for ensuring financial affairs were dealt with at the Dog & Gun. Page 80 shows an email exchange between Ms Lord and Mr Sowman about how she should structure her tax payments to avoid penalties.

[39]On 12 March 2018, the claimant emailed Mr Roberts to ask for(1) an electrician to attend the site,

(2) a budget to decorate the premises, and

(3) clarification about whether staffing costs can be covered for his planned holiday. The e-mail is signed “Bill” (pages 86-87). Mr Roberts replied on the same day (page 86), and in the e-mail also adds “I am still awaiting some fates from you to go out and see some pubs to get some ideas together”. On 17 March 2018, Mr Roberts e-mailed (page 88): “Hi Bill I can confirm that we will pay £300 towards your holiday cover for your holiday in April. Enjoy your holiday”.

[40]At around the same time, the respondent was organising a trip to Spain between 22 and 24 May 2018. The proposed attendee list is at page 90 and contains the claimant’s name. The respondent witnesses say that this was a trip for manchisees and that the claimant was on the list because he was a manchisee. In the latest email in the attaching chain, on 20 March 2018 (page 89), Ms Anderson of the respondent commented that “we have one manchisee not attending” and “Please let me know as soon as possible so we can advise the manchisees of timings etc”. I am satisfied that this trip was intended to be a trip for manchisees. The claimant notes that one name on the list was not a manchisee. As an explanation, Ms Davis explained that that person was treated as a joint manchisee with their partner, who held the franchise agreement and who was subject to the notice provisions in that agreement. Ms Davies denied that Ms Lord could be a joint manchisee.

[41]On 1 April 2018, the claimant was struggling to complete a stock take at the Dog & Gun and sought advice about how to deal with it, signing his e-mail “Bill” (pages 91 to 93).

[42]After this, in an undated letter produced at page 95, Ms Davis wrote a letter to the claimant (beginning “Dear Bill”) to thank him for the work in making the respondent successful in the 2017/2018 financial year, and that the respondent was in a position to pay bonuses. The claimant is told :- “Your unit’s profit was £52,519 and the bonus amount will be £5,251.94. Please can you arrange an invoice to us for this amount…”

[43]There is no response from the claimant to the above pointing out any mistake with the person described as owning or managing the business unit. The claimant did not dispute that this letter was sent to him or that that was the amount paid as a bonus 10 of 22 through Mr Sowman into Ms Lord’s bank account. The same pattern is shown in the following financial year when the claimant is told he would be paid £5,728.27 as a bonus for the unit he was responsible for (page 115).

[44]On 2 August 2019, a member of the public made a complaint to the respondent about the ‘current landlord’ of the Dog & Gun (page 118). The landlord is referred to as a ‘he’ and raises an issue that the Dog & Gun is using public land for benches for patrons to use whilst at the premises. Mr Allingham forwarded this to the Dog & Gun e-mail address and the claimant replies (signed “Bill”) saying that he had challenged the member of the public about it. He also described the member of public as a ‘melt’ who “chases poko mon, and likes being in the presence of young children”. From this response, I am satisfied that the claimant engaged with the member of the public and did not at any point note that he was not the landlord or franchise owner of the Dog & Gun.

[45]On 10 August 2019, Ms Davis was on site at the Dog & Gun when the claimant met with a member of staff called Andy, who Ms Davis notes his the claimant’s cleaner in her note of the meeting (page 120). One of the notes Ms Davis makes is that “Bill as employer not at fault”. In cross examination, the claimant noted that these were not his notes and that he may not have held himself out as the employer as he was, on his case, Ms Lord’s employee. For the purposes of fact finding, I am satisfied from this evidence that Ms Davis understood on that day and in that meeting that the claimant was the employer of the cleaning staff he was speaking to.

[46]On 14 October 2019, Mr Roberts e-mailed the claimant another set of P&L accounts (page 127), beginning “Hi Bill”. There was a reply from the Dog & Gun e-mail account asking for clarification. I am satisfied from the tone of the e-mail and the way in which it is written that the claimant wrote that e-mail even though it is not signed. Mr Roberts responds with a long explanation of the documents (pages 126-127), to which the claimant responds simply “3 years”. From this exchange, I consider that the claimant had been sent these documents for three years but had finally been given some written explanation of them. Consequently, I find that the claimant had been sent the manchisee P&L information since he had signed the agreement for services and that he had known that he should consider and understand them.

[47]On 12 February 2020, the claimant sent Ms Davis and Mr Roberts an e-mail bearing the title ‘Manchisee payment’. The e-mail reads (my underline emphasis):- “Good afternoon Rebecca Following on from our conversation earlier regarding the agreement from Christian to increase my manchisee from 17% to 18% upon the Gin Bar opening, could you please look into this for me. I have copied Christian into this email as advised. Kind regards Bill” 11 of 22

[48]In cross examination, the claimant attempted to explain this e-mail away as being done on the instructions of Ms Lord in respect of the Manchisee payment which belonged to her. Respectfully, the claimant did not persuade me in the slightest that that was the case. He could offer no explanation about why the e-mail was phrased in this way, nor could he explain why there was no record of being told by Ms Lord to do this request even though his original response essentially asserted that Ms Lord had advised him remotely to send the e-mail. In my view, the claimant sent this e-mail on his own account, following his own conversation with Ms Davis, about a Manchisee payment that he considered was his own. It is also apparent that the earlier conversation had involved the respondent dealing with the claimant as though he were the Manchisee. I am more confident to draw this finding of fact given the number of correspondences that the claimant had received by this point which indicate that the respondent understood him to be the Manchisee – none of which prompted him to assert that he was not the Manchisee, but that Ms Lord was.

[49]It appears that the respondent agreed to pay the additional 1% requested. On 31 March 2020, Ms Davis e-mailed the Dog & Gun e-mail account to advise that a payment to reflect the 1% had been made. That e-mail (page 143) was addressed to “Hi Bill/Anita”. Correspondence with Ms Lord after the signing of the contract

[50]On 24 April 2018, Mr Sowman e-mailed Ms Davis (page 94) to ask for the purchase ledger accounts for a list of individuals including Ms Lord. There is another similar email from Mr Sowman to Ms Davis from 24 April 2019 (page 113). It is clear that Mr Sowman was at this acting for a number of individuals who were running pubs owned by the respondent. Mr Sowman sent a similar e-mail on 9 October 2018 chasing for copies of Aquila accounts for a similar list of individuals as previously, including for Ms Lord (page 96).

[51]It is clear that payments due to the Manchisee under the disputed agreement were made to Mr Sowman’s firm and then paid to Ms Lord. Pages 193 to 212 show payments made through that channel in respect of the Dog & Gun, with the first payment made on or around 8 July 2016 and the final payment made on or around 12 December 2021. The respondent also communicated with Ms Lord about those payments (page 249) and about administrative tasks such as stocktakes (page 252).

[52]As outlined above, I am also satisfied that Ms Lord completed the relevant paperwork for the Dog & Gun. There was a general acceptance in the hearing that paperwork and accounts were not the claimant’s forte, and so I consider that e-mails such as that between Mr Leanders and Ms Lord dated 2 August 2016 (page 248) to be good evidence that Ms Lord stepped into that gap where appropriate.

[53]On 27 March 2020, Ms Lord acknowledges that the manchisee payments are not due to her under the agreement, when she refers to them as belonging to “us” (ie. her and the claimant) (page 253). This is in response to an e-mail from the respondent to manchisees discussing support to be offered during Covid restrictions. It is clear from the correspondence that Ms Lord dealt with the paperwork side of the business, including investigating various support available during the pandemic (page 255 to 257; page 260 to 262). 12 of 22

[54]From the summer of 2021, the claimant’s daughter Tyra begins to correspond with the respondent by e-mail at around the point that e-mails from Ms Lord are no longer shown in the bundle (pages 266 to 276). I find as a fact that Tyra began to assist the claimant at the premises by performing the functions previously completed by Ms Lord after her relationship with the claimant broke down and she left the premises. Termination of the agreement and actions of the parties

[55]Mr Allingham describes issues emerging in 2021 in relation to the claimant’s conduct and attitude towards Covid-19 measures. On 26 October 2021, the claimant and Mr Allingham met to discuss the franchise at the Dog & Gun. On 15 November 2021, Mr Johnstone for the claimant wrote to the respondent and asserted that the claimant was an employee of the respondent. Written notice to terminate the agreement was served on the claimant on 17 November 2021 with the agreement coming to an end on 19 December 2021.

[56]The claimant did not vacate the premises upon termination. Ms Lord was adamant in her evidence that she dismissed the claimant and the other employees prior to the expiry of the agreement, saying in her evidence that she was unable to employ anyone without the income from the Dog & Gun. She was asked for clarity about this, and whether she considered the claimant’s employment had come to an end. She said twice that she had dismissed the claimant and processed his P45. Given the potential significance of this, I asked for clarification. Ms Lord was very articulate that she had dismissed the claimant and prepared his P45. In closing submissions, Mr Johnstone urged me to ignore that evidence, suggesting that Ms Lord was mistaken. I do not consider that I can do that given Ms Lord’s clarity. I therefore find that Ms Lord ended the claimant’s PAYE arrangement prior to 19 December 2021 and submitted the claimant’s P45 thereafter.

[57]On 30 December 2021, the respondent removed the claimant as the DPS in an effort to regain control of the Dog & Gun. On 10 January 2022, Ms Lord wrote to the respondent to ask why she had not received payment in respect of the franchise as expected for the two weeks over Christmas and New Year. She asserted that she was the Manchisee and had received no notification that the contract had been terminated or that money would not be paid (page 264 to 265). Ms Davis responded on 11 January 2022 to say that Ms Lord was mistaken and that the claimant was the Manchisee (page 264).

[58]The respondent issued County Court proceedings against the claimant to remove him from the premises. At a court hearing on 7 April 2022, District Judge Asjad ordered the claimant to vacate the premises and to pay the respondent’s costs. The note of the hearing provided by respondent’s counsel (pages 325 to 326) was not contested by the claimant. It is apparent from that note that the claimant asserted that he was not a party to the franchise agreement because he had not received a signed copy. He also asserted that Ms Lord was the correct Manchisee. The District Judge found against the claimant on these points and held that the claimant was a party to the franchise agreement.

[59]On 20 April 2022, the claimant left the Dog & Gun and the respondent was able to regain possession of it. I accept Mr Alllingham’s account that no trading was done at 13 of 22 the premises from January 2022 until 17 May 2022 (supported by the documents at pages 214 to 216). This is supported by the claimant’s witness evidence, where he says “I was instructed to cease trading and I did”.

[60]Given that(1) the licence was terminated in December 2021,

(2) the arrangement between the claimant and Ms Lord was terminated around the same time,

(3) the respondent had no sales recorded from January 2022 to 17 May 2022, and

(4) the claimant says he ceased trading, I find as a fact that there was no business activity at the premises in 2022 until the new franchise owner took over the Dog & Gun. The contract between the new franchise owner and the respondent is said to have the effective date 16 May 2022. This means that there was an almost six month period where there was no business activity at the Dog & Gun. Relevant law Unfair dismissal claim

Relevant law

[61]Section 98 Employment Rights Act 1996 requires that a person bringing a claim for unfair dismissal is employed by the respondent to the litigation. There are very limited exceptions relating to rights to accompaniment at certain hearings and meetings, but they do not apply here. To succeed in an unfair dismissal claim, the claimant must show that he was an employee of the respondent. Worker status

[62]The starting point in relation to considering the employment status of an individual is to consider the wording of the relevant statute. Section 230(1) to Section 230(3) Employment Rights Act 1996 provides: “230 - Employees, workers etc. (1)In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2)In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. (3)In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a)a contract of employment, or (b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue 14 of 22 of the contract that of a client or customer of any profession or business undertaking carried on by the individual;”

[63]There is no single test concerning how to determine a person’s employment status. Each case falls to be determined on its own particular facts and often there are factors pointing in each direction which complicate the determination. The usual approach requires all aspects of the relationship to be considered and then I should ask the question whether the claimant was carrying on a business on their own account (O’Kelly v Trusthouse Forte plc

[1983] IRLR 369

CA).

[64]Naturally, this means that the wording in any document and the assumptions made by the parties will only be part of the matters to be considered when making a determination. The test is not ‘what was the claimant called’ or ‘what do the documents label the parties’ or ‘what did the claimant think they were’. I may be required to look behind the contractual documentation to consider how the relationship operated in reality to determine the employment status of the claimant (Autoclenz Ltd v Belcher

[2011] UKSC 41

; Uber BV v Aslam & others

[2019] UKSC 29

[65]In relation to whether someone is an ‘employee’ for the purposes of s230(1)(a), case law has found that a person will not be an employee without the mutual contractual obligation for the employer to provide work and the employee to do that work which is provided (Carmichael v National Power Plc

[1999] IRLR 43

, HL). This is often referred to in cases as the ‘irreducible minimum of obligation’. Employees who have a contract of employment containing the irreducible minimum of obligation will also be ‘workers’ by operation of s230(3)(a). Such workers are often referred to in cases as ‘limb (a) workers’.

[66]A person might however be a ‘worker’ even in the absence of such an irreducible minimum of obligation – the obligations on each party is just part of the discussion about whether someone might be a ‘worker’ (National Midwifery Council v Somerville

[2022] EWCA Civ 229

). These workers may be caught by the definition outlined in s230(3)(b), and are often known in cases as ‘limb (b) workers’. Where I find that a person is not an employee, it is possible that they could be a ‘limb (b) worker’ if they meet the relevant requirements.

[67]Those requirements are set out in the legislation itself:(1) there is a contract between the individual and the employer;

(2) the individual must be required to work personally for the employer; and

(3) the individual must not be working for someone who is in reality their customer or client. This last part is important because it is common for people to provide services under a contract to customers or clients without them benefitting from the protections offered by a ‘worker’ status. If all three elements are present, then it does not matter if the person is operating their own business (Hospital Medical Group Ltd v Westwood

[2012] IRLR 834

CA).

[68]Part(1) of the legislation is self-explanatory. In the usual way, the contract may be written or may be found to have been agreed orally with terms found through the conduct of the parties. Part

(2) requires the contract to not allow the person claiming to be a worker the ability to substitute with someone else who would complete the work. An employer-worker relationship is a personal one. If there is a right of substitution, then it tends towards the person not being a limb (b) worker. If that right 15 of 22 of substitution is in reality forbidden or excessively curtailed in some way, then it is possible that the person might still be found to be a worker (Pimlico Plumbers and another v Smith

[2018] UKSC 29

). Transfers under TUPE

[69]The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE Regs”) sets out protections afforded to employees upon a relevant transfer. Regulation 3 sets out two relevant transfers:(1) business sale or transfer; and

(2) service provision change. The legal ownership of the premises itself need not transfer, but the act of operation of a business under a lease or contract can be transferred and fall under TUPE (Landsorganisationen i Danmark v Ny Molle Kro

1989 ICR 330

, ECJ). In such circumstances, it is also possible for employees to transfer in two stages: first to the premises owner; and then to the new licensee (Foreningen af Arbejdsledere i Danmark v Daddy’s Dance Hall A/S

1988 IRLR 315

, ECJ; P Bork International A/S (in liquidation) v Foreningen af Arbejdsledere i Danmark and ors

1989 IRLR 41

, ECJ).

[70]Fundamentally, though, the TUPE Regs act to protect employees (or in some cases workers) who were engaged under a contract at the point of the transfer. Regulation 4(3) states that employees employed immediately before the transfer would have employments caught by the TUPE Regs, unless they were dismissed unfairly before this in circumstances described by Regulation 7. That regulation describes circumstances where the transferor (on the claimant’s case Ms Lord) is instructed by the transferee (the respondent) to dismiss the employee (the claimant). Discussion and conclusions Was the claimant the Manchisee?

Discussion and conclusions

[71]The use of the term ‘Manchisee’ seems to be a source of some confusion and ire between the parties. For the purposes of this judgment, I accept Mr Allingham’s explanation of what the Manchisee was intended to be – a franchisee who also had accountability for the direct management of the business as well as being the holder of the franchise. In short, it is intended to cover the role outlined by the commercial agreements such as the one the claimant signed at page 39. Plainly, this intended purpose may well not have been achieved in practice and it is possible that a ‘Manchisee’ may also be an employee or worker of the respondent or another.

[72]I am aware that there has been a determination about this issue in the County Court during possession proceedings. I have seen the Court Order and respondent counsel’s note, which was not contested and which the claimant agreed to have present in the bundle. I am not bound by that determination, and have approached the evidence before me afresh. I, and not the District Judge, have heard full argument about this point over two days. Consequently, I consider that I should put the County Court findings from my mind for the purposes of drawing conclusions from the evidence on this issue.

[73]In this case, the claimant signed the only contractual documentation setting out those ‘Manchisee’ roles and the obligations as between the parties. Prior to this, he was described as the new landlord, not as the manager under Ms Lord as an alternative 16 of 22 landlord. E-mails relating to the management of the business were sent predominantly to and from the claimant. The claimant attended events designed for manchisees. He was on site full time and was, in his own words, known as the face of the establishment. The notification in relation to the vacation of the premises and the end of the agreement were sent to the claimant and it is clear that the claimant and Ms Lord responded to those.

[74]I have, of course, considered the arguments and the evidence supporting the contention that Ms Lord was the Manchisee. It is apparent, as I have accepted, that the money due to the claimant under the agreement was paid into Ms Lord’s bank account. I have found that this was done on the advice of the claimant. Ms Lord then paid a small portion of that money to the claimant through PAYE. I accept that Ms Lord was entered on to some of the respondent’s systems as the licence holder or Manchisee, but I have accepted the evidence offered that this was on the understanding that it was required for the system to allow the monies to be paid in the way that the claimant had directed. Similarly, I do not consider that the contention that Ms Lord might be a joint Manchisee to be persuasive – there is no evidence indicating that the respondent considered that Ms Lord was involved with managing the business unit. It is clear that Mr Sowman understood Ms Lord to be the Manchisee. However, there is no evidence from Mr Sowman to the effect that he was present at the time that the arrangements were entered into. It seems to me that Mr Sowman understood or assumed Ms Lord to be the Manchisee based on her instructions and the fact that payments were made to her. This is not necessarily the same factors to be taken into account when determining what the legal position is; Mr Sowman has, in my view, only part of the picture.

[75]I consider the evidence from Mr Leanders to be of a similar nature. In cross examination, Mr Leanders explained that he understood that Ms Lord was the Manchisee. He could not, though, recount any discussion within the respondent which led him to form this view other than the fact that Ms Lord’s name was on the bank account given to the respondent for payments to be made. It was suggested by the respondent that Mr Leanders’ evidence was motivated by some desire for revenge against the respondent for reasons surrounding his departure. Mr Leanders maintained that he left the respondent with a good relationship and the respondent did not expand on this position despite the suggestion otherwise.

[76]Mr Leanders did accept that Mr Allingham was the person ultimately responsible for appointing the Manchisees. He also accepted that only the claimant had signed an agreement with the respondent. Mr Leanders’ witness statement asserted that he held authority to commit the respondent on the question of who the manchisee is, but he did not carry this argument through with force in his evidence and it is plain to me that he did not directly write his witness statement because the idiosyncratic language on its face is consistent with the other witness statements from the claimants’ witnesses, and the written correspondence produced by Mr Johnstone.

[77]None of these points displace, in my view, the very clear evidence from the respondent witnesses to the effect that(1) the claimant was always considered to be and treated as the Manchisee,

(2) decisions about Manchisees would be made by Mr Allingham, and

(3) Mr Allingham had never decided to appoint Ms Lord as the Manchisee. This is supported in the correspondence, where the claimant accepts 17 of 22 over a period of years that he is running the business unit at the Dog & Gun, does not query being treated as the Manchisee, and where Ms Lord does not assert herself to be the Manchisee at any time. It is also relevant that Ms Lord left the premises upon the breakdown of the marriage and that the claimant then operated the premises alone. The claimant was unhappy about he and Ms Lord being questioned about their personal relationship, but it is relevant to understand when Mrs Lord left and why Mrs Lord left if she was the Manchisee. I also consider it relevant that the respondent did not consider that it could ask the claimant to leave prior to terminating the franchise agreement.

[78]I conclude, having considered the oral and written evidence, and the facts as found above, that the Dog and Gun franchise was operated between(1) the respondent as the landlord and licensor, and

(2) the claimant as the franchisee ad licensee (and referred to as a Manchisee). This accords with the principles of the ‘Manchisee’ model as described by Mr Allingham. The claimant, in the course of carrying on business, signed the franchise agreement to this effect and agreed to the clause expressing him to be bound to those terms. Ms Lord was involved with the finance and administration at the Dog & Gun, and managed the payment of money and staff. She was not, though, the owner of the franchise and she did not manage the business. In my judgment, her role, having considered the documents, was more akin to that of a financial controller or finance manager. Was the claimant an employee or a worker of Ms Lord?

[79]Having found that the claimant was the Manchisee, it becomes difficult to conclude that he was an employee or worker of Ms Lord at the Dog & Gun because he, and not she, was the individual holding both the premises license and the ultimate responsibility for the performance of the franchised business. Even if Ms Lord was a joint Manchisee, this would only support a possible claim that the couple operated in partnership and would, in my view, add further weight to the arguments that the claimant was not an employee or worker of Ms Lord. The claimant relies on himself and the witnesses supporting him labelling an employer-employee relationship between Ms Lord and himself as proof of that aspect of his claim. He also relies on the fact that he was paid through PAYE as supporting those statements. However, the witnesses on the claimant’s side of the case offered no real detail about that employment relationship.

[80]Given the guidance provided by the Supreme Court in Uber and Autoclenz, it was surprising that the claimant’s five page witness statement did not set out any description of elements of control or obligations in place between Ms Lord or himself. There was no account of day to day interaction or supervision in that document, only a reference to being labelled as an employee on pay slips. Similarly, Ms Lord’s statement was extremely brief on the nature of the claimed employment relationship. Her five sentence long witness statement said simply: “I employed WD and was completely circumnavigated in all dealings up-to and after the fact that were set in motion to bring cessation to my dealings with the SB organisation”. Nowhere did the claimant or Mr Johnstone engage with the thorny issue about whether the claimant or Ms Lord could show an intention to create legally binding relations between themselves in this way, given that they were for a large part of the relevant time married and living together domestically. This is an important consideration, and it was right that Mrs Duane should ask about that domestic relationship in cross 18 of 22 examination – even though I accept it could have caused some distress to the now separated couple.

[81]Under cross examination, neither the claimant nor Ms Lord could articulate any terms which would form the basis of a contract between them. Neither of them offered a number in terms of the expected hours of work per week. The claimant said a number was agreed and he worked more than those, but he did not explain what that number was. He knew he was getting paid a fixed monthly amount but he did not know what his salary was or how his pay was calculated. He said that he was, variously, the ‘general manager’, ‘bar manager’ and ‘assistant’. He acknowledged that Ms Lord had a full time job elsewhere meaning that he would need to report to her periodically, but he could not describe a typical interaction where he was subject to Ms Lord’s supervision. He acknowledged that he may have held himself out as an employer of others with his words, but did not accept this meant he was the Manchisee in charge of the whole establishment. Ms Lord could not answer these points either.

[82]Ms Lord said that she was not always on site and did have a full time job elsewhere, but that she was in the pub most evenings and would direct the claimant in his duties during those evenings. She could not, though, describe any particular encounter. She said that she had no formal means of managing the claimant’s performance. She had no cogent explanation for why, despite the claimant’s case that she was his employer and the Manchisee, there was no written evidence in the form of emails or messages between her and the claimant discussing issues with the business when she was away from the premises. In the circumstances where neither the claimant nor Ms Lord could articulate any terms of a contract between them, and when they were engaged for most of the time period in a domestic relationship, I conclude that there was no contract for services in place between them. This means that the claimant has not established that he is a worker under a contract for services either.

[83]Both the claimant in his evidence and Mr Johnstone in his submissions placed a great deal of reliance on the fact that Ms Lord made payments to the claimant through PAYE and did not consider that this is but one factor that I should take into account. It was submitted that there was no other reason for the claimant to be paid through PAYE unless he was employed by Ms Lord. The claimant appeared offended when it was noted that someone might be paid through PAYE for any number of reasons, including that it could be more tax efficient or could save on administration in terms of completing tax returns. There is nothing nefarious or improper about such an arrangement, in my view, but it is because of those other possible reasons that being paid by PAYE is not taken as conclusive proof that someone is employed.

[84]Case law from the Supreme Court of the United Kingdom makes clear that I must look beyond the paperwork in place to determine how the purported employer and employee operated in practice. This seemed to be a surprise to Mr Johnstone, who told me in submissions that he had never been required to provide more than pay slips to show an employment relationship. This may be so, but I must apply the law as it stands now in respect of determining these issues, and I do not consider that the claimant has discharged his burden of establishing that he was employed by or that he worked for Ms Lord. In the situation where the claimant was the Manchisee, Ms Lord did not have the authority over him required to act as his employer. 19 of 22

[85]Considering all of the relevant tests in the law outlined above, I do not consider that the claimant has provided sufficiently cogent or detailed evidence to make out his assertion that Ms Lord employed him. The facts I have found do not support that. The claimant was unable, in my judgment, to overcome the presumption that he was a self-employed contractor which arose through the factual findings above and through my finding that he was the Manchisee with overall control of the business unit at the Dog & Gun. Was the claimant employed by the respondent?

[86]In the letter at page 286, Mr Johnstone asserts to the respondent that the claimant was their employee, and not an employee of Ms Lord. If this was indeed the claimant’s view, as it seems to have been, then it further casts doubt on any claim that the claimant was an employee of Ms Lord in any event. No case was advanced that the claimant was ever under the control of the respondent. I can discern no argument or evidence indicating that there was any mutuality of obligation between the parties to these proceedings, other than very bald and unsubstantiated statements in the witness statements prepared for the claimant’s witnesses to the effect that his employment transferred to the respondent when it took control of the premises. The opposite is so; the claimant was free to run the establishment as he wished in line with the broad commercial aims about profitability and viability that would be expected in a commercial arrangement.

[87]I have concluded that the claimant was a self-employed franchisee. He was not the respondent’s employee. If the claimant was an employee of Ms Lord, did his employment transfer through the provisions contained within the TUPE Regs?

[88]Even if I had found that Ms Lord was the Manchisee, was in a position to employ the claimant in his role, did so, and then the business transferred to the respondent, then I do not consider that this assists the claimant with his claims. I take into account the potentially wider definition of what an ‘employee’ is under the TUPE Regs, although the point was not pleaded or advanced by the claimant in the hearing. Nevertheless, I still consider that this claim has an obvious and fatal flaw even when considered in this hypothetical context.

[89]Ms Lord was very clear in her live evidence that she considered that she had dismissed the claimant prior to the transfer. She said that she would not be able to employ him any longer. Ms Lord stuck to what she said in her witness statement on the point: “As far as I am concerned having vacated the organisation and brought WD’s employment to an end..”. In my view, this was the only point about which Ms Lord demonstrated any clarity about exerting any sort of control over the claimant. She says she ended his employment. It did not continue in existence in a form which would transfer to another entity. There was no evidence that there was any instruction from the respondent to dismiss the claimant and no pleaded case that the dismissal was done as a result of a business transfer and so I do not consider that Regulation 7 would have applied. Ms Lord has not even said in evidence that she considered the claimant and employees at the Dog & Gun to have had their employments transferred. 20 of 22

[90]Really, in my judgment, all Ms Lord was describing here was the end to the mechanism by which the claimant received money on the PAYE system. I accept that Ms Lord operated a payroll system for the claimant and others which made payments to staff, although I do not accept that this proves an employer/employee relationship. What this means, though, is that Ms Lord was required to act to cease those payments being made for PAYE purposes. Her clear evidence, repeated when I asked for clarification, was that she completed the claimant’s P45 prior to the franchise ending. The TUPE provisions apply to those employed immediately at the point of the business transfer. Even if I considered that the claimant had been employed by Ms Lord initially, I would have to consider that his employment had ended some time prior to the transfer such that he would not have been caught by a TUPE transfer. There would be no employment to transfer because Ms Lord ended it.

[91]This would also be the case in the un-pleaded alternative proposition, advanced by the claimant during his evidence, that the claimant’s employment should have transferred to the new Manchisee. There would be no extant employment to transfer, even if the claimant could explain the significant period where there was no business unit activity at the premises in early 2022. In my view, there was no business unit carrying out trading between January 2022 and May 2022. Consequently, there was no business transfer at all between the claimant or Ms Lord, or the respondent, or the incoming Manchisee. The claimant’s actions, in refusing to vacate the premises and then stopping the premises from trading for six months, has interrupted the business activity at the Dog & Gun.

[92]If the claimant’s view really is that he should have had his employment transferred seamlessly from Ms Lord to the new Manchisee, then I am not clear why he opted to sue this respondent with these claims. In any case, the claimant was not employed by Ms Lord or the respondent. He was self-employed, and so there was no employment to transfer.

Disposal

[93]I have concluded that the claimant was what the respondent refers to as the ‘Manchisee’ at the Dog and Gun public house. He was the self-employed contractor who held a premises licence for the establishment, and lived in that establishment under the commercial contract outlined above. Consequently, he was not employed by the respondent and was not employed in his position by Ms Lord either. She did not run the business. His claim for unfair dismissal, in my judgment, must therefore be dismissed because the tribunal has no jurisdiction to hear it.

[94]Further, even if I had found otherwise above and held that the claimant was Ms Lord’s employee, then it is clear to me that Ms Lord’s view is that she would have dismissed him prior to the transfer of the business taking place. This meant that, even on that alternative (and in my judgment untenable) view, the claimant would not have come to be in the respondent’s employment. This would mean that his claim would come to be dismissed at this stage instead.

[95]Indeed, if, as seemed to be the case in evidence, the claimant is in fact saying that he should have had his purported employment transferred to the new Manchisee, 21 of 22 then it is apparent that he has sued the wrong entity. He should instead have sued Ms Lord and/or the new Manchisee, whom had and whom he now seems to say should have employed him. Any claim against this respondent would have to be dismissed if that is the case as it has evolved to be put.

[96]In those circumstances, it follows that there can be no breach of an employment contract which I have not found to exist. On the facts I have found, the claimant was arguably made redundant by Ms Lord. He was not made redundant by the respondent, and so his claim for a redundancy payment against this respondent must be dismissed.

[97]In summary, having heard all of the evidence and tested the arguments, I consider that the claimant has brought no well-founded claim in these proceedings and they are all dismissed.

[98]The respondent made an application for the claimant to pay its legal costs at the end of the hearing, based on (1 my oral remarks that none of the claimant’s points of claim were close to being made out and that he appeared to me to have sued the wrong person for at least one of them, and (2) the conduct of Mr Johnstone during the course of the litigation. This is a matter to be dealt with separately and was not considered on 9 August 2022.

Disposal

[1]The claimant’s claims were dismissed following a two day preliminary hearing where I found that he was not employed by the respondent because(1) he had not been employed by his wife; and

(2) even if he had, his employment would not have transferred to the respondent under TUPE in any case. Applicable Rules

[2]Rule 71 of the Rules requires that an application for reconsideration is made within 14 days of the written record being sent to the parties. Unusually, I exercised discretion to extend this deadline on two occasions, with the final extension being until 4pm on 14 December 2022. The claimant’s application was received at 1pm on the day of the deadline, and so it is in time.

[3]Rule 72 (1) of the Rules provides: “An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. …” 1 of 3

[4]Where an Employment Judge refuses an application following the application of Rule 72(1), then it is not necessary to hear the application at a hearing. Rule 72(3) provides that the application for reconsideration should be considered in the first instance, where practicable, by the same Employment Judge who made the original decision. I am the judge who made the decision in respect of which the claimant makes his application for reconsideration. Grounds and reasons of reconsideration application

[5]The claimant has provided a paragraph by paragraph summary outlining why he disagrees with the comments made and conclusions drawn by my judgment. The claimant’s overarching complaint seems to be a perception of bias towards the respondent in the way that the hearing was handled and how the evidence was considered when reaching a decision. Within that complaint, he disagrees with all points that are perceived as running against his case and asserts the arguments which his representative made on his behalf at the hearing on 8 and 9 August 2022. The claimant reaffirms the argument, made at the hearing, that HMRC considered that he was an employee of his wife and the argument is presented in a way that suggests this should trump other considerations. The claimant also makes comments about how I dealt with the case at a telephone preliminary hearing in June 2022, including that I found the case interesting and reserved the matter to myself going forward. Decision on the reconsideration application

[6]The hearing was the claimant’s opportunity to give information, ask questions and raise issues, which he did, through his representative. Through his representation, the claimant had the opportunity to ask questions of all witnesses and advance all relevant arguments. I consider that his representative was not fettered from running his arguments and presenting his case. Unfortunately, for the reasons outlined in my judgment, that case was not evidentially strong enough to make out the claimant’s position that any liability could rest with the respondent. Crucial evidence was not presented which, if it exists, may have assisted in that regard. In the absence of such evidence or arguments, the conclusions I have drawn were an inevitable result.

[7]I conducted a closed telephone case management discussion on 1 June 2022. It is not the function of such a hearing to make a decision or make comments about the strength or weakness of one side’s case, or the other. That is done at an open preliminary hearing, which was listed subsequently. The employment tribunal cannot end a claim at a closed preliminary hearing and so the fact that I listed another hearing is not an indication that I thought the claimant had a good case. I said that I would sit on that hearing because it was clear to me that there was a heated on-going dispute between the parties about disclosure, which might require close attention, and it made sense for the judge who had heard from the parties and gained that background understanding to deal with any such issues going forward.

[8]The Tribunal gave all the issues full consideration and prepared its decision and reasons in detail. The claimant seeks to challenge findings of fact that were made 2 of 3 or the conclusions that the Tribunal reached from those findings. The application is an attempt to re-litigate what was explored in detail at the hearing. A reconsideration is potentially a route for a party to raise new matters, but only where these have subsequently come to light after the hearing and where that party can adequately explain why the matter was not raised before. The claimant’s application does not identify any new matters.

[9]It is not the purpose of reconsideration to allow a party to dispute a determination that a party disagrees with and it is a fundamental requirement of litigation that there is certainty and finality. If conclusions made are disputed with regard to whether a correct interpretation of the law was made, they are matters for an appeal which the claimant is able to make to the Employment Appeal Tribunal. These are not matters for a reconsideration request.

[10]I do not doubt that the claimant is unhappy with the judgment but, for all of the reasons outlined here, the claimant’s application for reconsideration of the judgment in his case is refused.

[1]This hearing was listed for the purpose of determining an application for costs which had been made on behalf of the Respondent at the conclusion of a public Preliminary hearing that took place before Employment Judge Fredericks-Bowyer on 8th and 9th August 2022.

[2]At that hearing the Claimant’s then representative, Mr. Christopher Johnstone, withdrew complaints of associative disability discrimination that the Claimant had up until that time been advancing. Employment Judge Fredericks-Bowyer dismissed the remainder of the claim on the basis that the Claimant had at no time been either an employee or a worker of the Respondent within the meaning of Section 230 Employment Rights Act 1996. Accordingly, he had no standing to bring the remaining complaints that were therefore dismissed.

[3]That Preliminary hearing had followed on from an earlier one for the purposes of case management which also took place before Employment Judge FredericksBowyer on 1st June 2022. At that stage Employment Judge Fredericks-Bowyer listed the case for a public Preliminary hearing to determine the worker/employment status issue. That was on the basis that that particular matter was potentially determinative – and in the end was determinative - of all of the claims that the Claimant was advancing.

[4]It is common ground that Employment Judge Fredericks-Bowyer reserved the substantive Preliminary hearing to himself. The parties are, however, at odds on why that was the case. The Claimant’s position is that this was because Employment Judge Fredericks-Bowyer had expressed an interest in the case which he says suggests that he considered it to have reasonable prospects of success. The Respondent’s position is that it was normal for him to have done so on the basis that he had read into the papers. I do not need to resolve which of those positions is correct for the purposes of dealing with this application nor in any events could I do so because I was not present at that hearing and am not privy to the Judge’s reasoning.

[5]Following dismissal of the remaining parts of the claim by way of an oral Judgment the Respondent then made its application for costs. As noted at paragraph 98 of Employment Judge Fredericks-Bowyer’s written reasons (those reasons being supplied later on the application of the Claimant) the application was advanced on two fronts. The first of those was in relation to the claim being said to have had no reasonable prospects of success based upon the oral reasons given at the time and secondly, what was said to be the conduct of the Claimant’s then representative, Mr. Christopher Johnstone, during the course of proceedings. The application was not determined at the Preliminary hearing.

[6]Since the point of the Preliminary Hearing the Claimant applied for a Reconsideration of Employment Judge Fredericks-Bowyer’s decision. I do not need to say anything about the grounds of that application other than to say that it was refused. The Claimant appealed to the Employment Appeal Tribunal. That appeal was dismissed at the sift stage by a Deputy High Court Judge on the basis that it showed no discernible error of law.

[7]In accordance with the practice of the Regional Employment Judge in this particular region he held a further Preliminary hearing following the dismissal of the appeal by the Employment Appeal Tribunal. During that Preliminary Hearing it was agreed that the costs application would be referred to a Judge other than Employment Judge Fredericks-Bowyer which explains why I am dealing with the application despite not having made the decision in question from which it flows.

THE HEARING

[8]The hearing was listed for 3 hours of Tribunal time. There was a considerable amount of documentation to consider but fortunately I had been able to review the vast majority of that the day prior to the hearing. There was one document which I had not seen previously which was the Respondent’s skeleton argument which I only received on the morning of the hearing but which was able to be considered as a result of a slightly adjusted start time to the commencement of the hearing.

[9]By the time that this hearing came around the Claimant was no longer represented by Mr. Johnstone as a result of what I understand to be the latter’s ill health. Since the conclusion of the hearing before Employment Judge Fredericks-Bowyer he has been essentially representing himself. He was assisted today by his partner, Miss. Hales. Although I heard mainly from the Claimant I also allowed Miss. Hales, who had been taking detailed notes, to make some additional submissions on his behalf. The Respondent was represented by Ms. Duane of Counsel who had also represented the Respondent at the Preliminary Hearing before Employment Judge Fredericks-Bowyer at which the remaining claims were dismissed.

[10]I am grateful to both parties for the helpful submissions that they have made during the course of this hearing and they can be assured that whether it is expressly referenced or not within this Judgment that I have taken into account all that they have told me and all the documentation that I have seen.

[11]At the outset of the hearing the Claimant told me that he had only received the bundle which was to be used on Monday morning. The parties were at odds with each other about that position and I understand from Ms. Duane that the bundle was originally sent to the Claimant electronically on 29th January 2024 and the revised copy received on 5th February 2024 was as a result of the Claimant’s supplying some further documentation which then required there to be an amended hearing bundle. The Respondent’s position was therefore the Claimant had had the bundle since 29th January, albeit not in hard copy form, and that he had the other documents which were later added to it because those were his own documents.

[12]However, who is right and who is wrong about that is not a matter that I ultimately need to resolve for the purpose of dealing with this hearing. That is on the basis that I asked the Claimant if he was making any application for the Tribunal to do something about the matter and he confirmed that he was not and particularly no application for a postponement or adjournment was made. I offered the Claimant additional time if he wished to consider the documents or any part of them but he indicated that that was not required. He did not have with him a hard copy of the bundle at the hearing, but one was helpfully supplied to him by Ms. Duane so that he was able to refer to the relevant pages had he had wished to do so.

[13]As touched upon above, Ms. Duane had produced a helpful skeleton argument setting out in detail the basis of the application which was being made on behalf of the Respondent. The Claimant confirmed that he had received that and that had scanned it albeit he had not read it in detail. He was asked but said that he did not require additional time to do so. Ms. Duane spoke to that document and I gave the Claimant a right of reply. Where the Claimant’s response did not deal with certain aspects of the application made, I raised those with him of my own volition.

[14]We made adjustments during the course of the hearing to allow the Claimant to eat when his blood sugar became low as a result of him being diabetic and also undertook a break to accommodate the same issue. The Claimant confirmed that he was well enough to continue and I am satisfied that we were able to have a fair and effective hearing.

[15]I extend my apologies to the parties for the delay in this Judgment being sent to them which was caused by a variety of factors including other Judicial work, absence from the Tribunal and latterly unexpected and difficult personal circumstances. Their patience in awaiting the Judgment has been much appreciated. THE BASIS OF THE RESPONDENT’S APPLICATION

[16]As touched upon above the Respondent pursues the application for costs on two fronts. The first of them is that it is said that the claim, as is evident from the decision of Employment Judge Fredericks-Bowyer, had no reasonable prospects of success and that position should have been evident to the Claimant and his then representative from at least the receipt of the Grounds of Resistance and also in relation to certain issues raised in County Court proceedings with which I am not concerned for the purpose of this application.

[17]In the alternative it is said that the Claimant and/or his representative had pursued and conducted the litigation unreasonably, vexatiously or scandalously. That alleged conduct can be distilled into the following categories: 17.1. That communications were sent by or on behalf of the Claimant on no less than six occasions within a short period of time seeking to strike out the Response with no basis in law to do so; 17.2. That at the same time and/or separately communications were sent to the Solicitors Regulation Authority (“SRA”) making unjustified and baseless allegations against the Respondent’s representative; 17.3. That there had been a failure to engage with an Order that had been made for Further & Better Particulars which remained outstanding as at the first day of the Preliminary hearing before Employment Judge Fredericks-Bowyer and which, if it had been complied with, may well have highlighted the deficiencies in the Claimant’s argument to have been an employee of the Respondent; 17.4. That there had been a withdrawal of a complaint of associative disability discrimination on the first day of the Preliminary hearing which had put the Respondent to unnecessary costs in previously defending that part of the claim; 17.5. The way in which Mr. Johnstone conducted preparation for and representation at the Preliminary hearing, including failing to have furnished the Claimant’s witnesses with a copy of the hearing bundle when they were giving evidence remotely; 17.6. That one of the witnesses, a Mr. Leander, had appeared to give evidence not even knowing the name of the Claimant whose case he was giving evidence in; 17.7. The paucity of the witness statements from the Claimant’s three witnesses which Employment Judge Fredericks-Bowyer treated with some caution given that all assertions made within them were in what he described as “language particular to Mr. Johnstone”. 17.8. That there was a concession made by Mr. Johnstone that he was unable to articulate or expand upon an alleged contractual relationship with Anita Lord, who the Claimant contended had been his employer, and which was therefore a corner stone of his claim; and 17.9. That the Claimant had been seeking by adding additional documents to the bundle for this costs hearing to further relitigate the matters which were before Employment Judge Fredericks-Bowyer.

[18]Although the Claimant made plain today that he does not seek by way of his submissions to argue against the decision of Employment Fredericks-Bowyer in his attempts to articulate why he felt he was justified in bringing the proceedings, we have on occasion nevertheless crossed over into that particular territory. I make it plain as I did at the commencement of the hearing that this decision is only concerned with the question of whether the threshold for costs is in engaged and, if so, whether such an order should be made and that I am not revisiting any other findings and conclusions reached by Employment Judge Fredericks-Bowyer because quite simply it is not open to me to do so.

THE LAW

[19]Rules 74 to 84 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“The Regulations”) deal with the question of whether an Employment Tribunal should make an Order for costs.

[20]Rule 76 sets out the relevant circumstances in which an Employment Judge or Tribunal can exercise their discretion to make an Order for costs and the relevant parts of that Rule provide as follows: “When a costs order or a preparation time order may or shall be made 76.— (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success.”

[21]In short, therefore, there is discretion to make an Order for costs where a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing or conducting of the proceedings. Equally, the discretion is engaged where a party pursues either a claim or defence which has no reasonable prospect of succeeding or, to put it as it was termed previously, where a claim or defence is being pursued which is “misconceived”.

[22]It should be noted that merely because a party has been found to have acted vexatiously, abusively, disruptively or unreasonably or where a claim or response had no reasonable prospect of succeeding, it does not automatically follow that an Order for costs should be made. Once such conduct or issue has been found, a Tribunal must then go on to consider whether an Order should be made and, particularly, whether it is appropriate to make one. When deciding whether an Order should be made at all and, if so, in what terms, a Tribunal is required to take all relevant mitigating factors into account.

[23]For something to have been pursued in a vexatious manner it must be that it is pursued not with the expectation of success but to harass the other side or out of some improper motive (ET Marler Ltd v Robertson

1974 ICR 72

) or, more widely, as something that is an abuse of process.

[24]With regard to unreasonable conduct it is necessary for the Tribunal to consider “the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had." (Barnsley Metropolitan Borough Council v Yerrakalva

[2012] IRLR 78

[25]In accordance with Rule 84 of the Regulations, a Tribunal is entitled to have regard to the ability to pay any award of costs both in relation to the making of an Order at all, or the amount of any such Order. However, it is not a mandatory requirement that such consideration must automatically be given.

CONCLUSIONS

[26]I begin by considering whether the claim had no reasonable prospects of success which is the first strand of the Respondent’s application.

[27]The Claimant’s submissions did not focus upon whether the claim had no reasonable prospects of succeeding and focused on the fact that he had not acted unreasonably in pursuing it. However, I have nevertheless to ensure fairness to him considered the decision myself to determine whether or not it could be said that the claim had no reasonable prospect of succeeding.

[28]The start and end point for that consideration is the decision of Employment Judge Fredericks-Bowyer at the last Preliminary hearing. Indeed, as that Judge had highlighted at the first Preliminary Hearing on 1st June 2022 the key consideration was the issue of employment/workers status and if the Claimant failed on that point all complaints fell away.

[29]The Claimant’s primary claim was that he was employed by his then wife, Anita Lord, and that she operated as the Manchisee (a form of franchise arrangement) of the Dog & Gun public house in which he worked and that his employment had been transferred to the Respondent under the Transfer of Undertakings (Protection of Employment) Regulations (“TUPE”). In the alternative, he said that he was employed directly by the Respondent.

[30]In relation to employment by Ms. Lord and the TUPE point, Employment Judge Fredericks-Bowyer concluded that there was no employment relationship. He found that under cross examination neither the Claimant nor Ms. Lord could articulate any terms which would form the basis of contract between them.

[31]He pointed out that neither of them offered a number in terms of the expected hours of work per week. The Claimant had said that a number was agreed and that he worked more than those, but the Judge set out that he did not explain what that number was.

The Judge also set out the following:

[32]“He knew he was getting paid a fixed monthly amount that he did not know what his salary was or how his pay was calculated. He said that he was, variously, the ‘general manager’, ‘bar manager’ and ‘assistant’. He acknowledged that Ms Lord had a full time job elsewhere meaning that he would need to report to her periodically, but he could not describe a typical interaction where he was subject to Ms Lord’s supervision. He acknowledged that he may have held himself out as an employer of others with his words, but did not accept this meant that he was the Manchisee in charge of the whole establishment. Ms Lord could not answer these points either.” (See paragraph 81 of the Judgment of Employment Judge Fredericks-Bowyer).

[33]The conclusion reached by the Judge when considering the question of employment by Ms. Lord and the TUPE point was as follows: “Considering all the relevant tests in the law outlined above, I do not consider that the Claimant has provided sufficiently cogent or detailed evidence to make out his assertion that Ms Lord employed him. The facts I have found do not support that. The Claimant was unable, in my judgment, to overcome the presumption that he was a self-employed contractor which arose through the factual findings above and through my findings that he was the Manchisee with overall control of the business unit at the Dog & Gun” (see paragraph 85 of the Judgment of Employment Judge Fredericks-Bowyer).

[34]As to the TUPE argument had his conclusion been that the Claimant had been an employee of Ms. Lord, Employment Judge Fredericks-Bowyer concluded this: “Even if I had found that Ms Lord was the Manchisee, was in a position to employ the claimant in his role, did so, and then the business transferred to the respondent, then I do not consider this assists the claimant with his claims. I take into account the potentially wider definition of what an ‘employee’ is under the TUPE Regs, although the point was not pleaded or advanced by the Claimant in the hearing. Nevertheless, I still consider that this claim has an obvious and fatal flaw when considered in this hypothetical context. Ms Lord was very clear in her live evidence that she considered that she had dismissed the claimant prior to the transfer. She said that she would not be able to employ him any longer. Ms Lord stuck to what she said in her witness statement on the point: “As far as I am concerned having vacated the organisation and brought WD’s employment to an end…”. In my view, this was the only point about which Ms Lord demonstrated any clarity about exerting any sort of control over the claimant. She says she ended his employment. It did not continue in existence in a form that would transfer to another entity. There was no evidence that there was any instruction from the respondent to dismiss the claimant and no pleaded case that dismissal was done as a result of the business transfer and so I do not consider that Regulation 7 would have applied. Ms Lord has not even said in evidence that she considered the Claimant and employees at the Dog & Gun to have had their employment transferred. Really, in my judgment, all Ms Lord was describing here was the end to the mechanism by which the claimant received money under PAYE system. I accept that Ms Lord operated a payroll system for the claimant and others which made payments to staff, although I do not accept that this proves an employer/employee relationship. What this means, though, is that Ms Lord was required to cease those payments being made for PAYE purposes. Her clear evidence, repeated when I asked for clarification, was that she had completed the claimant’s P45 prior to the franchise ending. The TUPE provisions apply to those employed immediately at the point of the business transfer. Even if I considered the claimant had been employed by Ms Lord initially, I would have to consider that his employment had ended sometime prior to the transfer such that he would not have been caught a TUPE transfer. There would be no employment to transfer because Ms Lord ended it. This would also have been the case in the un-pleaded alternative proposition, advanced by the claimant during his evidence, that the claimant’s employment should have transferred to the new Manchisee. There would be no extant employment to transfer, even if the Claimant could explain the significant period where there was no business unit activity at the premises in early 2022. In my view, there was no business unit carrying out trading between January 2022 and May 2022. Consequently, there was no business transfer at all between the claimant or Ms Lord, or the respondent, or the incoming Manchisee. The claimant’s actions, in refusing to vacate the premises and then stopping the premises from trading for six months, has interrupted the business activity at the Dog and Gun. If the claimant’s view really is that he should have had his employment transferred seamlessly from Ms Lord to the Manchisee, then I am not clear why he opted to sue this respondent with these claims. In any case, the claimant was not employed by Ms Lord or the respondent. He was self-employed, and so there was no employment to transfer.”

[35]In respect of the alternative contention that the Claimant had been a direct employee of the Respondent Employment Judge Fredericks -Bowyer concluded this: “In the letter at page 286. Mr Johnstone asserts to the respondent that the claimant was their employee, and not an employee of Ms Lord. If this was indeed the claimant’s view, as it seems to have been, then it further casts doubt on any claim that the claimant was an employee of Ms Lord in any event. No case was advanced that the claimant was ever under the control of the respondent. I can discern no argument or evidence indicating that there was any mutuality of obligation between the parties to these proceedings other than very bald and unsubstantiated statements in the witness statements prepared for the claimant’s witnesses to the effect that his employment transferred to the respondent when it took control of the premises. The opposite is so; the claimant was free to run the establishment as he wished in line with the broad commercial aims and profitability and viability that would be expected in a commercial arrangement. I have concluded that the Claimant was a self-employed franchisee, he was not the Respondent’s employee”.

[36]It is also worthy of note setting out the conclusions which finally disposed of the claim and these were as follows: “I have concluded that the claimant was what the respondent refers to as the ‘Manchisee’ at the Dog and Gun public house. He was a self-employed contractor who held a premises licence fee establishment, and lived in that establishment under the commercial contract outlined above. Consequently, he was not employed by the respondent and was not employed in his position by Ms Lord either. She did not run business. His claim for unfair dismissal, in my judgment, must therefore be dismissed because the tribunal has no jurisdiction to hear it. Further, even if I had otherwise above and held that the claimant was Ms Lord’s employee, then it is clear to me that Ms Lord’s view is that she would have dismissed him prior to the transfer of the business taking place. This meant that, even on that alternative (and in my judgment untenable) view, the claimant would not have come to be in the respondent’s employment. This would mean that his claim would come to be dismissed at that stage instead. Indeed, if, as seemed to be the case in evidence, the claimant is in fact saying that he should have his purported employment transferred to the new Manchisee, then it is apparent that he has sued the wrong entity. He should instead have sued Ms Lord and/or the new Manchisee, whom had and whom he now seems to say should have employed him. Any claim against this respondent would have to be dismissed if that is the case as it has evolved to be put. In those circumstances, it follows that there can be no breach of an employment contract which I have not found to exist. On the facts I have found, the claimant was arguably made redundant by Ms Lord. He was not made redundant by the respondent, and so his claim for redundancy payment against this respondent must be dismissed. In summary, having heard all the evidence and tested the arguments, I consider that the Claimant has brought no well-founded claims in these proceedings and they are all dismissed.”

[37]As I have already observed I am bound by those findings and the conclusions reached by Employment Judge Fredericks-Bowyer. Against that background that then brings me back to the question of whether the claim had no reasonable prospect of succeeding. I take into account that issues as to employment status and worker status are often inherently complicated. Indeed, matters have frequently made their way up to superior Courts dealing with those particular questions. It is often simply unclear until all of the evidence has been properly ventilated and tested what the precise nature of the relationship between parties is.

[38]However, this is not one of those cases. It was plain from the Judgment referred to above that the Claimant deployed no evidence of any form of contractual relationship between himself and Anita Lord and indeed neither of them could explain the basis of that purported relationship during the course of their evidence. Moreover, even if they had been able to do so there still remained what Employment Judge FredericksBowyer described as a fatal flaw with regard to any transfer to the Respondent under TUPE.

[39]The assertion that the Claimant had come to be employed by the Respondent via TUPE therefore clearly had no reasonable prospect of success on the basis of the evidence which the Claimant had had all along and what was contained in Ms. Lord’s witness statement.

[40]The argument as to firstly being employed by Ms. Lord had no reasonable prospect of success because there was no evidential basis for it and secondly the assertion to have transferred under TUPE had no reasonable prospect of success based on the evidence of the Claimant’s own witness.

[41]Similarly, it is plain from the findings and conclusions of Employment Judge Fredericks-Bowyer that the Claimant deployed nothing by way of evidential substance to suggest that he was directly employed by the Respondent other than a bald assertion to that effect which would plainly be inadequate. Again, that would have been something that was known all along and not something that simply arose from the evidence that could not have previously been plain. That alternative assertion also had no reasonable prospect of succeeding because it was without evidential foundation.

[42]Finally, the Claimant’s position as it evolved in the evidence was that he should have come to be employed by the incoming Manchisee. If that was what his case was said to be then it is impossible to see how the Respondent could have had any responsibility for his claim and as Employment Judge Fredericks-Bowyer made plain he had sued the wrong entity.

[43]The claim as against this particular Respondent therefore for all of those reasons can be properly said to have had no reasonable prospect of success and the first limb of the test for an Order for costs to be made is made out.

[44]However, that is not the end of the matter. I must then consider whether I should exercise my discretion to make an Order for costs and in doing so I must take into account any mitigating factor which obviates against such an Order being made.

[45]Ms. Duane had anticipated that the Claimant may seek to rely on advice which had been received from Mr. Johnstone in respect of the claim. The Claimant did not make submissions in relation to that point but of my own volition I asked him about that given he is now acting as a litigant in person and is unfamiliar with the costs regime. Nevertheless, it was something that I wished to explore with the Claimant because it was a relevant factor as to the second limb of the test that I needed to apply.

[46]It appears from what he told me that other than the fact that he was told by Mr. Johnstone that he “had a shout” very little if anything appears to have been said to the Claimant about the legal test that the Tribunal would be required to apply and more importantly whether the evidence that he had and the information to hand meant that he was likely to succeed or at least have some prospects of succeeding at the Preliminary hearing in establishing in one way or another that he was an employee or a worker of the Respondent.

[47]If the Claimant had been representing himself in these proceedings then I may have had less sympathy because I would have expected him to have researched properly the basis upon which he may have had any recourse against the Respondent to these proceedings. However, although the underlying facts were known to him, he had sought advice from someone who described himself to be a Specialist Employment Practitioner he was told by that practitioner that he “had a shout”. That to me suggests that he was told in terms that he had a reasonable chance of success in establishing employee/worker status. Whilst it is unusual for advice to be in such bold and undetailed terms unfortunately it is not unheard of.

[48]Whilst Ms. Duane points to the fact that the Claimant is an intelligent man, regrettably even those who are intelligent can and do rely simply on what they are told by an advisor and that is particularly the case when somebody is referring to themselves as a Specialist Employment Advisor.

[49]There is nothing before me to suggest that the Claimant was the driving force in how the claim was advanced before the Tribunal or at the Preliminary hearing (and I come to that further below) because he was being represented and relying on advice from Mr. Johnstone.

[50]Moreover, it was clear from what the Claimant told me during the course of this hearing that he had a fundamental misunderstanding about how the claim process works. The Claimant was present at the Preliminary Hearing on 1st June 2022. However, he had mistakenly taken from that hearing and the fact that Employment Judge Fredericks-Bowyer had listed the August Preliminary hearing and reserved it to himself that there was effectively a case to answer and that had the Judge not thought so then he would have “kicked out” the claim at that particular stage. As we have discussed today it was not open to the Employment Judge to do that because that was a private Preliminary hearing for the purposes of case management and the Tribunal Rules do not permit the striking out of claims at that stage even if they have no reasonable prospects of succeeding.

[51]I therefore have to determine whether there are any mitigating factors pointing against me exercising my discretion to make an Order for costs against the Claimant in respect of the “misconceived” point. While I am mindful of the point raised by Ms Duane that I should be cautious in accepting that what happened in this case was down to an advisor rather than on the instructions of the Claimant and also that should not in any event vitiate against an Order for costs because the recourse would then be against Mr. Johnstone, ultimately I am satisfied that the driving force was Mr. Johnstone and that the Claimant was an unwitting passenger in this litigation.

[52]I am satisfied that the Claimant having relied on poor, bald and undetailed advice and having been under a misunderstanding in relation to the initial Tribunal process that those are adequate mitigating facts against making an Order for costs in these circumstances. I do not think that a costs Order in these circumstances would be just where a Claimant has relied on being told that he “has a shout” - which suggested not unsurprisingly to him that he had a reasonable chance of succeeding in his claim – from someone who holds themselves out to be an employment law expert. I would not expect in those circumstances for the Claimant to have felt a need to go off himself and research whether the advice that he had been given was right or wrong.

[53]There is nothing that emerged from the hearing before Employment Judge Fredericks-Bowyer which would not have been known to Mr. Johnstone when he provided his advice to the Claimant in relation to his pleaded case. If the Claimant gave evidence that had been wholly inconsistent with the instructions provided and upon which the advice was given then that would have been a different matter but the underlying facts were at all times known to Mr. Johnstone and that was the basis of his advice that the Claimant “had a shout”. It perhaps did not help that the Claimant’s claim evolved as he gave his evidence with his view that he should have transferred to the incoming Manchisee from Ms. Lord but that was still consistent with the pleaded case that he was her employee and there is nothing to say that an expressed view during the course of evidence would have likely changed the advice that Mr. Johnstone was giving that he had a “shout” against this Respondent.

[54]For all of those reasons, I do not consider that it is just to exercise my discretion under the second limb of the test to make an Order for costs in these circumstances where the Claimant was advancing the claim against the Respondent based on advice from someone who was describing himself as a specialist in the field. I take on board the argument advanced by Ms. Duane that the Claimant would in turn have recourse against Mr. Johnstone but that does not persuade me that I should make a costs Order. Firstly, further litigation is undesirable and I know nothing of whether Mr. Johnstone holds any form of indemnity insurance which might yield anything from successful litigation. Secondly, the Respondent clearly anticipated that the position may have been that the Claimant relied on the advice that he was given by Mr. Johnstone and so it was open to them to deal with that as an alternative argument regarding wasted costs. That argument was abandoned at the hearing before Regional Employment Judge Swann.

[55]I turn then to the second strand of the application which relates to the Claimant’s conduct and/or that of his representative during the course of these proceedings.

[56]The first issue in that regard is said to be pursuing any case unreasonably has he knew it had no reasonable prospects of success and that that was emphasised by Mr. Johnstone conceding that he was unable to articulate or expand upon the Claimant’s then alleged contractual relationship with Ms. Lord. For the same reasons that I have already given in relation to the first limb of the application I dismissed that part of the application because I do not consider it to be unreasonable conduct to follow legal advice to the effect that he had a shout i.e. that there was some merit in the argument that he was seeking to run. Employee/worker status at TUPE are inherently complex matters and I do not find the Claimant to have acted unreasonably to have followed advice which he received from someone who describes himself as a Specialist Employment Practitioner and who had been specifically retained by the Claimant for the purposes of dealing with these proceedings.

[57]The second part of the application relates to the conduct of the Claimant and/or Mr. Johnstone making no less than six applications to strike out the Response within a short period of time. Leaving aside the number of those applications, which in itself is highly unusual, five of them were made within 15 days of each other and the final one being made only 28 days later. In addition to that, I agree with Ms. Duane and with other Employment Judges who had viewed the various applications at various times that there was no discernible basis in law for those applications to have been made. They arose, on a very generous interpretation, from a misunderstanding about what had been said at the first Preliminary hearing and/or umbrage which appeared to have been taken by Mr. Johnstone to entirely unremarkable communications from the Respondent’s Solicitors. Added to that the applications were often in a form which could not sensibly be responded to and it was nearly always impossible to discern what the actual basis for the application was. They were made entirely unreasonably and in a florid language which was bordering on the insulting. They accused the Respondent’s Solicitors of negligence, a breach of their professional standards and, on occasion, criminality. I have read each of the applications and they are as baseless as they are absurd.

[58]It is worthwhile looking at some examples of those communications to emphasise the point. One such came in response to a perfectly measured email from the Respondent’s Solicitor asking for evidence that Mr. Johnstone was now unavailable to attend the Preliminary hearing which had been listed with the agreement of the parties for 12th July 2022 at the first Preliminary hearing. No issue had been raised by Mr. Johnstone that he was not available on that date, although his agenda had made reference to unavailability at that time. He subsequently made a postponement application citing is unavailability in connection other proceedings.

[59]The email from the Respondent’s solicitor in reply was entirely unremarkable and it is the sort of communication that Tribunals regularly receive in connection with postponement applications, for example, in relation to proof of a pre-booked holiday or medical incapacity to attend. The reply was no different. It produced, however, what has to be described as an outrageous response which was copied to the Tribunal making reference to possible future applications for costs or to strike out the Response. It accused the author, Ms. Ball, of insinuating that Mr. Johnstone had tried to mislead the Tribunal (which she plainly had not) and indicating that she was seeking to impress her client, that she was wasting her clients money by casting unwarranted and spurious aspersions “designed to disrupt the professional fluidity that should be homogeneous and conducive to the consistency of flow of contentious litigation, alleged non-compliance with no less than four principals of the SRA’s Code of Conduct”, made reference to an application for wasted costs and that he would not permit “anyone especially a professional to enter the arena and deliver only aspersions which bastardise my profession”. It also threatened should there be any repeat of the conduct which Mr. Johnstone appeared to complain of and the “throwing of marbles under the feet of [his] client’s claim” to “constructive unilateral suit of which both you and your organisation should be subject to”. Although not entirely clear, that appears to be some reference to threatening Ms. Ball and Howes Percival (the firm by whom she was employed) with some form of unspecified legal action.

[60]A further notable example was written by Mr Johnstone to the Employment Tribunal on 23rd June 2022. It is worth setting it out in full and it said this: “Please find this as a formal and deeply concerning declarative with regard to the potential witness intimidation that at best is complete negligence and at worst is complicit with section 51(1) of the Criminal Justice and Public Order Act 1994. We have a primary witness namely Mrs Lord who is a primary witness in another jurisdiction and we are deeply concerned that she is being adversely coerced in to removing herself as such by way of intimidation. This I believe supersede all jurisdictions as it filters into the realms of criminality. I shall consider contacting Her Majesty’s Crown Prosecution Guidance Notice. Rebecca Davies is vicariously complicit indemnified by SBL and shall not be afforded non-pursuit of personal litigation.”

[61]Again, that was all completely baseless and frankly outrageous. All that had happened was that Ms. Davies (another employee of Howes Percival) had forwarded a copy of a charge which had been levied over the property in connection with, as I understand it, concurrent County Court proceedings brought by the Respondent against the Claimant. Those had been sent to Ms Lord because she co-owns the property with the Claimant. That could not by any stretch of the imagination possibly be tantamount to witness intimidation or criminality nor give rise to whatever unspecified legal proceedings Mr Johnstone had in mind of seeking to bring against Ms. Davies. It was again an extraordinary letter to have written.

[62]I accept that the Respondent has spent time and expense needlessly dealing with these matters given the context of the communications and the applications to strike out the Response and they plainly had to do so.

[63]I have no hesitation in concluding that either singularly or cumulatively these communications alleging criminality, unspecified threats of legal action and entirely unwarranted applications to strike out the Response amounted to unreasonable conduct. The first limb of the test for costs is therefore made out in accordance with this particular part of the application.

[64]It then falls for me to consider whether I should exercise my discretion to make an Order for costs. I should note that some of the communications in question were written by the Claimant, however, it was made plain that he was writing them as they were being dictated to him by Mr. Johnstone and having viewed them they are plainly written in language which, to coin a phrase from Employment Judge FredericksBowyer, written in language which was particular to Mr Johnstone.

[65]I accept what the Claimant has told me that those applications came from Mr. Johnstone and he did not believe that Mr. Johnstone was doing anything wrong in making them. Given the content that position may be described as being naive but I take into account the fact that those who are represented by people describing themselves as experienced legal professionals more often than not leave matters in the hands of that representative to best advance their case. As the Claimant indicated in the hearing before me, he understood Mr. Johnstone to be acting in his best interests and had no reason to think otherwise. Even though he was aware of the communications and it would be plain as a pikestaff to most people looking back to see that they were inappropriate in content, that has to be looked at from the prism of the Claimant having instructed Mr. Johnstone to represent him and his belief that he was acting in his best interests to advance his claim.

[66]Again, it is plain that it was Mr. Johnstone who was the driving force and again the Claimant was his unwitting passenger. In those circumstances and for largely the same reasons as I have already given in respect of the second limb of the test for the “misconceived” part of the application, I do not consider that that should result in an award of costs against the Claimant as there are clear mitigating factors at play.

[67]It should be observed that the Claimant himself made a further application to strike out the Response effectively seeking a dismissal of the costs application. That was done, as Ms. Duane points out, in the same florid and confusing style of pseudo legal language previously adopted by Mr. Johnstone and she contends therefore that the Claimant must have been an accomplice in writing the earlier emails or instructing Mr. Johnstone in relation to the tone and content. Having heard from the Claimant I am satisfied that what he actually did is simply pasted parts from earlier applications made by Mr. Johnstone into his own application because he did not know otherwise what to put. As identified by Employment Judge Broughton his application was misconceived because it was based on a misunderstanding of Orders which had been made by Regional Employment Judge Swann. His application was clearly misconceived and it was plainly unwise but I accept that at the time that the Claimant was still labouring under the misapprehension that Mr. Johnstone’s conduct had been in his best interests and not inappropriate. Whilst he was wrong about that on both fronts, I do not consider that of itself to be unreasonable conduct on his part.

[68]I turn then to the issues about a failure to comply with case management Orders. That largely falls in relation to the provision of further information which had been Ordered by the Tribunal to be provided and which was pertinent to the employee/worker question and in respect of which the Respondent was forced to apply for an Unless Order. As it was that information was not provided until the first day of the August 2022 Preliminary hearing. It is plainly unreasonable conduct for a party to fail without adequate excuse to comply with an Order of the Employment Tribunal and no representations had been made that there was an adequate reason for that particular failure. The information was plainly relevant to the issues which were going to be determined and it could and should have been provided.

[69]The first limb of the test for costs is therefore made out because there was unreasonable conduct in respect of the failure to comply with Orders which had been made by the Tribunal. However, the question then again falls as to whether I should exercise my discretion under the second limb to make an Order for costs. I am satisfied that ultimately I should not. There is nothing to suggest that the Claimant had instructed Mr. Johnstone not to respond and as with other issues he had left matters in Mr. Johnstone’s hands to deal with. In these circumstances, I do not consider it just to visit those particular costs on the Claimant. In all events those particular costs would have been limited to the application made for an Unless Order. Whilst it could be said that if that information had been provided it might have led to greater engagement in terms of the merits of the employee/worker status point I am far from convinced given what the Claimant has told me as to the level of advice he received as being he “had a shout” that would have made any difference to the eventual outcome.

[70]I turn then to the next issue which is in relation to the preparation for and conduct during the August Preliminary hearing before Employment Judge FredericksBowyer.

[71]The first of those issues concerns the late withdrawal of an associative disability discrimination complaint. I have asked the Claimant how that claim came to be withdrawn on the first day of the August Preliminary hearing. I am told by the Claimant - and again I have no reason to doubt that what he tells me is accurate - that he withdrew that complaint on advice received from Mr. Johnstone on the morning of the hearing to the effect that they should just concentrate on the other complaints. The Claimant accepted that advice and that led to the withdrawal of that element of the claim. I cannot know the reasons why Mr. Johnstone decided on that course nor why he advised the Claimant to have pleaded that head of claim in the first place.

[72]Whilst a withdrawal of a claim at a late stage of the proceedings, and particularly at a hearing, can of itself amount to unreasonable conduct I do not take the view that it was in the circumstances. The August hearing was not a final hearing of the claim, the parties had not prepared other than putting in a relatively brief part of the response dealing with the associative discrimination claim for a full hearing of the matter. The June Preliminary hearing would still have been required to deal with consideration of whether to list the matter for a substantive Preliminary hearing on the employee/worker status issue. The August 2022 hearing would still have gone ahead on the same basis. Even if I had found that the withdrawal of this particular head of claim amounted to unreasonable conduct, I would nevertheless again not have visited costs in relation to that issue on the Claimant give that he withdrew on advice given by his then legal representative. That is again a demonstrative of the fact that the Claimant was leaving things in the hands of Mr. Johnstone to act in his best interests.

[73]As to other conduct at the hearing this included the rather curious issue whereby Mr. Leanders did not even know the name of the Claimant whose case he was supposed to be giving evidence in connection with; the fact that none of the witnesses had been furnished with the hearing bundle and all of the witness statements were lacking in detail and contained little other than bold assertions written in language particular to Mr. Johnstone. As far as I can ascertain from what the Claimant has told me today his involvement in relation to the issue of witness evidence was limited to speaking with the witnesses initially prior to Mr. Johnstone taking over. It seemed clear from what I have read within the Judgment of Employment Judge Fredericks-Bowyer that the witness statements were prepared by Mr. Johnstone on the basis that they contained some reference “to inserting a standard mantra prepared by CJ” (which must be Christopher Johnstone).

[74]Indeed, it would be normal practice for a legal representative to deal with matters such as supplying or furnishing copies of the bundle, preparing and ensuring that witness statements were in order and making sure that witnesses knew what it was that they were supposed to be given evidence about. There is nothing before me to suggest that the Claimant was the one responsible for that state of affairs and again I have regard to what he has told me that he had left matters in the hands of Mr. Johnstone to act in his best interests.

[75]I can fully accept that the almost shambolic way in which the Preliminary hearing proceeded with regard to preparation on the Claimant’s side is something which plainly amounted to unreasonable conduct because a legal representative, particularly one who was making it plain in correspondence with the Respondent’s Solicitors had over 10 years’ experience in employment law practice, could and should have prepared this case much better. That amounted to unreasonable conduct for him to fail to do so and particularly the situation with regard to poor and differing copies of witness statements and witnesses not knowing whose case they were supposed to being given evidence in connection with was astounding.

[76]However, whilst I accept that was unreasonable conduct again there are mitigating factors which mean that it would not be equitable to make an Order for costs against the Claimant in these circumstances. That is again on the basis that the Claimant had left matters in the hands of Mr. Johnstone and understood him to be acting in his best interests. There is nothing to say that the Claimant instructed Mr Johnstone to deal with matters in the way that he did indeed it would be extremely unusual for him to have done so on the basis that the only person that such a poorly prepared case could have caused detriment to was the Claimant himself. Again, for those reasons I do not consider it appropriate to make a costs Order against the Claimant in these circumstances because there are clear mitigating circumstances pointing against it.

[77]Moreover, I would observe that even had I had been minded to make a costs order in relation to issues that occurred at the substantive Preliminary hearing then it is difficult to see what those costs would have been. The case was disposed of within the two day listing and the delays which resulted in, for example, the copies of the hearing bundles needing to be furnished to the Claimant’s witnesses did not alter that position nor did the Respondent incur any additional costs in relation to the poorly prepared, inadequate and different witness statements in relation to the Claimant’s witnesses.

[78]Standing back and looking at matters as a whole it is plain that either singularly or cumulatively there has been unreasonable conduct in this case which passes well over the first limb of the test for a costs Orders to be made and I am entirely unsurprised that an application was made by the Respondent. However, I am satisfied that the things that I have found to amount to unreasonable conduct were matters which were done at the hands of Mr. Johnstone and not the Claimant and that the latter was unaware that he was doing anything wrong. For those and the reasons that I have previously given I do not consider it just in the circumstances to make an Order for costs against the Claimant. Had the Respondent continued to have pursued the wasted costs application against Mr. Johnstone that, however, may have had an entirely different outcome.

[79]I should observe that one aspect of the application does relate solely to the actions of the Claimant and so I should deal with that separately. This is that on 1st February 2024 the Claimant had attempted to add a further nine documents to the costs bundle which are said to relate to the liability issue and are said to be a further attempt to relitigate the decision of Employment Judge Fredericks-Bowyer which has already been exhausted. I do not consider that to be unreasonable conduct which meets the threshold for the first limb of the costs test. I say that on the basis that it is not unusual for a party to be unable to accept a decision which is adverse to them and which they strongly believe – even wrongly – was incorrect. It is plain that the Claimant still believes that the Respondent was in some way responsible for the treatment of which he complained in these proceedings. Whilst that is ultimately wrong, it is not conduct which is unreasonable nor was his attempt to include documents within the bundle to that effect. I therefore find no unreasonable conduct on the Claimant’s part in respect of this part of the application.

[80]I turn then to the final aspect of the application for costs which is in relation to scandalous or vexatious conduct. The Respondent contends that it was the Claimant’s intention and the proceedings had been orchestrated to cause as much harassment, inconvenience and cost to them as feasibly possible. Ms. Duane relies on three issues in connection with this strand of the application. The first is the making of unfounded threats against the Respondent and their representative, the second is causing distress to the Respondent by threatening non-molestation orders and making malicious allegations to the Police and the third it is said that the proceedings had been brought to cause as much disruption to the Respondent due to an eviction notice which had been served on him by them.

[81]In respect of the first issue, I can deal with that relatively swiftly because as I have already concluded in relation to other parts of the application those communications however unwise they may have been, were being led by Mr. Johnstone and not the Claimant and the Claimant believed that there was nothing wrong with them and that Mr. Johnstone was acting in his best interests. Looking at those communications logically, objectively and with the benefit of hindsight they were of course anything other than highly inappropriate, highly unusual and offensive communications. Whilst they did amount to scandalous conduct of the proceedings, again that lay at the door of Mr. Johnstone and not the Claimant. For the same reasons therefore as I did not make costs order in respect of unreasonable conduct against the Claimant I am equally not making one in relation to the issue of scandalous conduct in respect of this particular part of the claim.

[82]I then deal with the remainder of the strands of this part of the application which in effect go hand in hand. I have not heard evidence about the circumstances of the non-molestation order or threats to the Police. The Claimant sought to tell me about the eviction notice and that was at his behest but that is an entirely new matter and no evidence has been called upon it. What is clear is that events between the Claimant and the Respondent has been unhappy and unfortunate ones. The Claimant has taken steps in relation to unsuccessful non-molestation orders which at best might be described as unwise. However, I do not feel that I can extrapolate from those matters that the sole purpose of the Claimant bringing these proceedings was not in the hope of discerning any benefit from it but with the intention of causing harassment and spite to the Respondent. I can take judicial notice of the fact that litigation can and does become heated and that is not least in a case such as this where inflammatory correspondence has been sent by one representative to another and the parties are involved in more than one set of proceedings.

[83]It is regrettably not unusual for litigation to spill outside the arena and into other areas such as reports to the Police and the like. Whilst that rarely has its appropriate place in litigation it does not mean that the initial proceedings were brought with ill will and there is nothing to suggest that the Claimant brought this claim without hope of a remedy and only to cause inconvenience to the Respondent.

[84]The position may have been different if the Claimant had been acting throughout as a litigant in person and having himself sent or directed to be sent the inflammatory correspondence to which I have referred. However, he did not he retained the services of Mr. Johnstone. Whilst Mr. Johnstone makes reference in communications to acting on pro bono basis the Respondent’s submissions at least as to the Claimant’s means and ability to pay any award of costs made suggested that the Claimant would have been making payment for those services. The Claimant is of relatively modest means albeit he has some small amount of saving and a relatively modest pension. It would seem unusual to have expended funds on legal representation to advance a case against the Respondent in respect of which he had knew that he had no reasonable expectation of recovering anything and was simply done for spite and the purposes of harassment. Whilst many unwise and unfortunate events have befallen this particular set of proceedings, I am not satisfied that the Claimant acted vexatiously either in bringing or in the pursuit of the claim.

[85]It follows for all of those reasons that the application for costs is refused.

[86]I should say, however, that I can entirely see given the catalogue of events which occurred and the way in which the hearing in August 2022 unfolded and concluded why the application was made.