Ms L Fearn and others v South Derbyshire District Council and others: 2600989/2019 and others
JUDGMENT
[1]the claimants’ claims shall not be struck out for unreasonable conduct;[2]the case remains listed for a preliminary hearing on 24 and 25 October 2019 at the Nottingham Employment Tribunal, to determine the issue of employee/worker status; and[3]upon receipt of the responses of the second and third respondents, the file shall be referred to an Employment Judge for the purpose of considering Case Number 2600989/2019 and others 2 whether further case management is required in relation to the preliminary hearing. _____________________ Employment Judge Batten Date: 31 July 2019[1]The Claimants were not employees or workers of the First Respondent within the meaning of s.230 Employment Rights Act and Regulation 2 of the Working Time Regulations 1998.[2]The Claimants’ claims of unfair dismissal, for redundancy payments and holiday pay are dismissed. Case No: 2600989/2019, 2601006/2019, 2601007/2019, 2601008/2019, 2601009/2019, 2601010/2019, 2601011/2019. 10.2 Judgment - rule 61 February 2018REASONS
[1]Under rule 75(1)(a) of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Regulations”) the Claimants are, by consent, each ordered to pay to the first Respondent the sum of £2,562.00 in respect of the costs incurred by the first Respondent while legally represented, in preparing for and attending preliminary hearings on 9 July 2019 and 24 and 25 October 2019.[2]On 25 October 2019, the claims were dismissed because the Claimants were neither employees or workers of the first Respondent within the meaning of section 230 Employment Rights Act 1996 and Regulation 2 of the Working Time Regulations 1998.[3]Prior to the Preliminary hearing before me, the same or substantially the same point had been decided in favour of the first Respondent in a claim brought against it on his own behalf by Mr Steven Ayre (the Claimant’s lay representative) in claim number 2601491/2017. An application by Mr Ayre for permission to appeal to the EAT was refused. There was no material distinction between Mr Ayre’s position and that of the Claimants, save that Mr Ayre alleged that he had made a protected disclosure and was thus entitled to rely on the wider definition of worker in section 43K of the Employment Rights Act 1996. His claim did not succeed.[4]Regardless, he continued to represent the seven Claimants in this case to pursue the same point.[5]At the close of the Preliminary Hearing, I made an order that the parties were at liberty to make an application for costs in writing by 15 November 2019. The order was not an unless order and, under rule 77 of the Regulations, an application for costs can be made at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.[6]The first Respondent made an application for costs on 9 December 2019 claiming a total sum of £17,934. This included costs incurred for in preparing for and attending preliminary hearings on 9 July 2019 and on 24 and 25 October 2019.[7]Subsequently, Mr Ayre confirmed that the Claimants were not contesting the application and were each prepared to pay their share of the costs. Case No: 2600989/2019 2601006/2019 2601007/2019 2601008/2019 2601009/2019 2601010/2019 2601011/2019 Page 3 of 3