Employment Judge J BlackwellIn person for claimantMr E Musa (instructed by Solicitor) for respondentDate 18 December 2018
JUDGMENT
[1]The case is adjourned on the application of the Claimant.[2]The matter is hereby listed for a preliminary hearing at Lincoln on 10 December 2018, details of which are below.
REASONS
Introduction
[1]The purpose of today’s hearing was to determine –(a) Whether, having regard to section 83(2)(a) of the Equality Act 2010, the tribunal has jurisdiction to hear Ms Sadriyeva’s claims of unlawful discrimination in respect of the protected characteristics of race, disability and sex. It emerged from discussion that Ms Sadriyeva intends to rely upon the fact that she was engaged under a contract personally to work. Case No: 2601406/18 2(b) The other issue to be determined today was whether or not the tribunal had jurisdiction to hear Ms Sadriyeva’s claims of unlawful discrimination, having regard to the provisions of section 123 of the 2010 Act and in particular subsection (1) thereof, ie were the claims brought within time.[2]Again, it emerged from discussion that the last act of discrimination upon which Ms Sadriyeva wishes to rely is the reference by Larkfleet to the Lincolnshire Police concerning what Larkfleet considered to be harassment by Ms Sadriyeva. The reference by Larkfleet was not actually included within the bundle but must have been on or about 5 December 2017. However, Ms Sadriyeva also alleges that because she had to deal with the police in that regard and that there was further correspondence and telephone calls, a later date is to apply. It is common ground that the date of receipt by ACAS of the EC notification was 18 March and that ACAS issued their certificate on 11 April 2018. Ms Sadriyeva’s claim was received by the tribunal on 20 June 2018.[3]The original notification by the tribunal sent to the parties on 21 August 2018 required disclosure of documents by 4 September. Ms Sadriyeva applied for an extension of time to comply with that to 11 September but did not receive a response from the tribunal. The letter of 21 August also required a bundle to be created by 18 September and witness statements to be exchanged by 25 September.[4]Ms Sadriyeva did not comply with any of the directions. Notwithstanding that, she accepts she received the order of 21 August and that she received a letter from the tribunal of 28 September requiring the parties to comply with the case management orders set out in the tribunal’s letter of 21 August.[5]Ms Sadriyeva is a litigant in person. She informed me that during the period June to August she had been through a difficult period in which she was made homeless for a period and that she is only now recovering from the ensuing difficulties.[6]Accordingly, she made an application to adjourn today’s hearing so that she could produce a witness statement which she says she has in draft and consists of 5 pages. I reminded her that the statement is to address the two issues which I have identified above only. It is not to deal with the merits of the case.[7]Ms Sadriyeva also maintained that there are a number of documents, including one she describes as “my letter of request”. She was unable to identify that document because she had brought no documents with her. If she wishes that document to be considered, then she will need to disclose it and it will need to be included within the bundle.[8]Mr Musa opposed the application to adjourn, pointing out correctly that Ms Sadriyeva was in clear breach of tribunal orders and, on her own Case No: 2601406/18 3 admission, had done nothing between receipt of the tribunal’s letter of 28 September reminding her to comply with the orders of 21 August, other than to prepare a draft witness statement, which had not been disclosed.[9]The hearing itself began late because Ms Sadriyeva was late and by the time Ms Sadriyeva’s application had been made and responded to by Mr Musa, it was clear that no decision could be reached today having regard to the time left. Accordingly, I have reluctantly come to the view that an adjournment should be permitted. I have warned Ms Sadriyeva repeatedly that she is at risk of bearing the costs of today’s adjourned hearing and I have also warned her of the consequences of non-compliance with the orders that follow. ORDERS Made pursuant to the Employment Tribunal Rules 2013 1. Ms Sadriyeva is to send to Mr Musa her statement dealing with the issues identified above and she is to do so by not later than 4 pm on 22 November 2018. 2. Ms Sadriyeva is to disclose to Mr Musa, again by 4 pm on 22 November 2018, any documents which are relevant to the issues identified above, including transcripts of any audio files on which she intends to rely and the “letter of request” which she was unable to identify today so that they can be included in the trial bundle. 3. If Ms Sadriyeva fails to comply with either or both of the above orders, all of her claims will be struck out without further notice. 4. Provided Ms Sadriyeva complies with both of the above orders, then the matter will proceed to deal with the above two issues at a preliminary hearing. This preliminary hearing is listed at Lincoln Magistrates Court, The Court House, 358 High Street, Lincoln LN5 7QA on 10 December 2018 at 10:00 with a time estimate of 3 hours. 5. The case is reserved to Employment Judge Blackwell. _________________________ Employment Judge Blackwell 26 October 2018 Notes(i) The above Order has been fully explained to the parties and all Case No: 2601406/18 4 compliance dates stand even if this written record of the Order is not received until after compliance dates have passed.(ii) Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.(iii) The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.(iv) An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative. Any further applications should be made on receipt of this Order or as soon as possible. The attention of the parties is drawn to the Presidential Guidance on ‘General Case Management’: https://www.judiciary.gov.uk/wp-content/uploads/2013/08/presidential-guidance-general-case-management-20170406-3.2.pdf(v) The parties are reminded of rule 92: “Where a party sends a communication to the Tribunal (except an application under rule 32) it shall send a copy to all other parties and state that it has done so (by use of “cc” or otherwise). The Tribunal may order a departure from this rule where it considers it in the interests of justice to do so”. If, when writing to the Tribunal, the parties do not comply with this rule, the tribunal may decide not to consider what they have written. Order sent to Parties on ………………………………… __________________________ Case No: 2601406/18 5 Case No: 2601406/18 1 EMPLOYMENT TRIBUNALS Between: Ms Z Sadriyeva and Larkfleet Ltd Claimant Respondent At an Open Attended Preliminary Hearing Held at: Nottingham On: Monday 10 December 2018 Before: Employment Judge Blackwell (sitting alone) Representation For the Claimant: In person For the Respondent: Mr E Musa, Solicitor[1]The purpose of today’s hearing is to determine two points. The first is, having regard to section 83(2)(a) of the Equality Act 2010, whether the tribunal has jurisdiction to hear Ms Sadriyeva’s claims of unlawful discrimination in respect of the protected characteristics of race, disability and sex. The second issue is the question of whether Ms Sadriyeva’s claims were brought in time. Given my decision as to the first, there is no reason to determine that issue. Case No: 2601406/18 2[2]Ms Sadriyeva represented herself and gave evidence on her own behalf. Mr Musa represented the Respondent (Larkfleet) and he also gave evidence. Both parties gave oral submissions and both provided documents. Mr Musa provided a bundle of documents in accordance with the tribunal’s instructions. I allowed Ms Sadriyeva a bundle of documents today, which I appreciate she had sent to Mr Musa but he was unable to convert them into documents. Because most of them were already in Mr Musa’s bundle and/or were familiar to him, I permitted Ms Sadriyeva to produce these documents.[3]The parties have behaved childishly throughout and that has not assisted. I should record that I cut short Ms Sadriyeva’s cross-examination of Mr Musa because she repeatedly ignored my request to ask questions rather than to make statements. Mr Musa did not help by introducing tendentious and, at one point, inaccurate materials in his proof of evidence. I have therefore ignored paragraphs 8 j. and k. of his evidence and paragraphs 9, 14 and 16 save that the correct date of the dissolution of Zeta Economics Ltd is June 2018.
The law
[4]The law is set out at section 83(2)(a) thus: “83 Interpretation and exceptions … (2) “Employment” means— (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work; …”
Findings of fact
[5]The Claimant was the sole Director and sole employee of Zeta Economics Ltd (Zeta) which she founded in 2012. The Company was dissolved as I say in June 2018. At page 63 of Mr Musa’s bundle begins the Company’s advertising material, including examples of work done, its pricing structure and a non-disclosure agreement entered into between the parties at page 88. At 91 is a public liability insurance policy in the name of Zeta.[6]The Respondent is a Company whose purpose is the construction and sale of dwelling houses. Like every other such company, they apply for planning permission on various sites. Some are successful, some are refused and Case No: 2601406/18 3 some go to appeal. Larkfleet use a range of consultants with specialities such visual impact, noise access and, in this case, economic impact assessment.[7]In 2016, Zeta was introduced to Larkfleet and the Claimant met with senior employees of Larkfleet. I accept that she told them that she would personally carry out any work they instructed her to do. There were instructions, approximately 10 in number, in 2016 and carrying through into 2017. There was clearly a contract between the parties, ie that economic impact assessments would be carried out and they would be paid for at the rate set out in the Company’s pricing structure to which I have referred.[8]The Company tendered invoices (see for example page 39) and was paid in every case. I accept that the Claimant did all the work personally.[9]The parties fell out in August 2017, which has led to the current proceedings because the Respondent, on the advice of Counsel declined to use Zeta’s impact assessment to assist in a planning appeal. Zeta’s work was criticised by Counsel and the Respondent. The Claimant told me and I accept that she aspired to grow the Company; to take on employees and to be able to engage sub-contractors. In fact the economic reality meant that but for two occasions when she engaged sub-contractors to carry out telephone surveys, Zeta employed no one and no other sub-contractors were used because the level of business was insufficient. I also accept that the financial reality meant that the Claimant was not in a position to turn down work from Larkfleet or from anyone else.[10]However, it is clear that if the financial position had permitted, Zeta had the ability to pick what work it did. Unfortunately, the financial position of the Company worsened rather than improved. In 2016, work from Larkfleet amounted to some 30% of the Company’s turnover of £77,000 but in 2017, the turnover was only £15,000 and 100% of the work was from Larkfleet. Both parties have referred me to a number of documents using various terms “Zeta”, “consultants”, “employ” “Zeta Economics” but it seems to me that they are used in lay terms and are of no assistance in determining the issue before me.
Conclusions
[11]As I said at the beginning of the proceedings, the leading authority on this issue is the Supreme Court’s decision in the case of Hashwani v Jivraj [2011] ICR 1004. The headnote records that the jurisprudence of the European Court of Justice draws a clear distinction between those who were in substance employed and those who were independent providers of services not in a relationship of subordination with the person who received the services. That is the guidance that I need to apply. I note that the Supreme Court examined both the relevant European Directive 2000/78, domestic authorities and the jurisprudence of the European Court of Justice. Case No: 2601406/18 4[12]In domestic terms, the Supreme Court approved the judgment of Balcombe LJ in the case of Gunning [1986] ICR 145 in which he said that the dominant purpose test is really an attempt to identify the essential nature of the contract. He went on that an alternative way of putting it may be to say that the courts are seeking to discover whether the obligation for personal service is the dominant feature of the contractual arrangement or not. If it is, then the contract lies in the employment fields. If it is not, for example the dominant feature of the contract is a particular outcome or objective and the obligation to provide personal service is an incidental or secondary consideration, it will lie in the business field.[13]In my view, the dominant purpose of the contract between the parties was the provision of an economic impact assessment. The fact that it was to be carried out by Ms Sadriyeva was not the dominant purpose. Thus, having regard to the findings of fact that I have set out above, on balance I am of the view that the arrangement between the parties here was an arrangement between businesses and thus Ms Sadriyeva is not entitled to the protection of the Equality Act because she does not come within the ambit of section 83(2)(a).[14]It follows therefore that the tribunal does not have jurisdiction to hear her claims.