Ms M Awolowo v London Borough of Havering: 3200033/2024
EMPLOYMENT TRIBUNALS
Case No 3200033/2024
Between
Ms M AwolowoClaimantLondon Borough of HaveringRespondent
Before
Employment Judge GardinerMr K Richards (instructed by lay representative) for claimantMs K Zelinska (instructed by counsel) for respondentDate 8 August 2025
JUDGMENT
[1]The Claimant’s employment with the Respondent did not start until 31 January 2022. Accordingly, by the end of the Claimant’s employment on 14 September 2023, the Claimant had not been continuously employed for a period of not less than two years ending with the effective date of termination.[2]Accordingly, the Claimant does not have the qualifying period of employment required by Section 108 Employment Rights Act 1996 to bring a claim for unfair dismissal under Section 94 Employment Rights Act 1996.[3]The Claimant’s case is therefore dismissed.
REASONS
[1]This Public Preliminary Hearing was listed to decide a preliminary issue. The preliminary issue is whether the Claimant was employed by the Respondent for at least two years. If so, then the Tribunal has jurisdiction to decide her unfair dismissal complaint. If not, then the Tribunal does not have the jurisdiction.[2]This is because of the wording of Section 108(1) Employment Rights Act 1996: (1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination.[3]The parties agree that the Claimant was employed from 31 January 2022 to 14 September 2023. The dispute centres on the Claimant’s employment status during the period from 1 September 2020 to 30 January 2022. The Claimant argues that she was employed by the Respondent throughout this time; the Respondent contends she was an agency worker until 31 January 2022.[4]I have heard evidence from the Claimant; and from Ms Anissa Bachmar on behalf of the Respondent. Both had prepared witness statements. The Claimant’s statement was updated from an earlier version and served in accordance with the Tribunal’s directions. Ms Bachmar is a Senior HR Consultant employed by the Respondent. She first had dealings with the Claimant during the disciplinary process that led to the Claimant’s dismissal in September 2023. Although Ms Bachmar’s statement was provided long after the Tribunal’s deadline for doing so, and shortly before this hearing, no objection was taken by the Claimant to it being considered by the Tribunal.[5]I have also had regard to the documents to which I have been directed in the Claimant’s bundle and in a separate bundle prepared by the Respondent. The Claimant’s bundle comprised 507 pages. The Respondent’s bundle comprised 533 pages. Further documents were attached to the Claimant’s witness statement.[6]Both representatives had provided helpful written submissions and made oral closing submissions. I am particularly grateful to Mr Richards as a lay representative for his assistance in representing the Claimant. Not only had he ensured that his client complied with previous Tribunal orders. He had also carefully researched the relevant legal principles. He adopted a pragmatic stance on the Respondent’s very late compliance with previous Tribunal orders. He presented his client’s case in a courteous and thoughtful manner.[7]So far as possible, the hearing was conducted in accordance with the recommendations made in the intermediary report prepared by Rory Sizer and dated 15 October 2024. I have also borne those recommendations in mind in how these Reasons have been worded.[8]A four-day Final Hearing was scheduled to start on 12 August 2025 if the Tribunal has jurisdiction to consider an unfair dismissal complaint. I had intended to give an oral judgment at the end of the day-long Preliminary Hearing so the parties could proceed with the Final Hearing if I found that there was jurisdiction to bring a complaint of unfair dismissal. There was insufficient time at the end of the Tribunal day to give an oral judgment, given that submissions concluded at 5pm. At that point, I was told that both parties were not ready for a Final Hearing. Therefore, I told the parties that regardless of my decision, the Final Hearing would have to be vacated. I have endeavoured to provide these written reasons at speed so that both parties know where they stand. This is particularly important given that this preliminary issue concerns events in September 2020, almost five years ago. These proceedings were received by the Tribunal on 4 January 2024, over 19 months ago.[9]The key legal principles that emerge from the relevant authorities are not in dispute. They can be summarised as follows:a. Where there is an express agreement on essentials of sufficient certainty to be enforceable, an intention to create legal relations may commonly be assumed (Modahl v British Athletic Federation [2001] EWCA Civ 1447 per Mance LJ at paragraph 102)b. The burden is on the party asserting it (here the Claimant) to establish that a contract of employment should be implied (Modahl at paragraph 102).c. A contract of employment will only be found between a worker and an end user if this is necessary to give business reality to what was happening in order to create enforceable obligations between the worker and end user. It would be fatal to the implication of a contract that the parties would or might have acted exactly as they did in the absence of such a contract (James v LB Greenwich [2008] EWCA Civ 35 per Mummery LJ at 23-24).d. There must be some words or conduct which entitle the Tribunal to conclude that the agency arrangements no longer dictate or adequately reflect how the work is actually being performed and that the reality of the relationship is only consistent with the implication of the contract (James v LB Greenwich UKEAT/006/06/ZT at paragraph 58).e. The mere passage of time does not justify an implied contract – something more is required (James v LB Greenwich EAT at paragraph 58). Nor can it be created by the mere and unilateral wish of the putative employee (Muschett v HM Prison Service [2010] IRLR 451).f. The crucial test is not who controls the worker or whether there is a significant degree of integration into the organisation (Tilson v Alstom Transport [2010] EWCA Civ 1308 at paragraph 44). These may well be highly significant if there was no agency relationship. The existence of a genuine agency relationship alters matters in a fundamental way (James v LB Greenwich (EAT) at paragraph 55).g. The need to apply to a line manager employed by the end user before taking leave is not sufficient to justify the implication of a contract (Tilson at paragraph 48).h. A tribunal will more readily open to inferring a contract where agency arrangements are superimposed on an existing contractual relationship (James v LB Greenwich (EAT) at para 60).i. Whether a contract should be implied is ultimately a matter of law and involves an objective analysis of all the relevant circumstances. If the parties understand that there is no such contract in place this is an extremely powerful factors militating against the implication of such a contract (Tilson at paragraph 50).[10]The relevant circumstances here can be set out in the following findings of fact.[11]The Claimant is very experienced at managing the complex healthcare challenges of rough sleepers. For many years, the Claimant has worked in this area as an agency worker. In September 2020, the Claimant was engaged by Remedy Recruitment Group Limited, an employment agency, to work at the Respondent local authority in the Housing department as a Healthcare Navigator. Her understanding of the arrangement at the time was that it was an agency arrangement.[12]She was sent an Assignment Schedule confirming she was assigned to work for Havering as a Health Care Navigator from 1 September 2020. This recorded that her hours of work would be as discussed with her manager. She would be paid weekly via BACS after the deduction of tax and NI contributions. This would not be paid by the end user. Rather it would be paid through Remedy Recruitment Group Limited. She would be paid £20 per hour. It was her responsibility to have timesheet authorised by her line manager each week by the deadline specified.[13]The Claimant was asked to sign to confirm she had received full confirmation of the work details. The document stated, in bold, that “By signing the box below you agree to the Terms of the Agreement”. It is unclear whether the reference to the Terms of the Agreement is a reference to the terms contained in the two-page document or to other standard terms and conditions. Under the heading “Confirmation of Agreement”, this was signed by the Claimant and by Sasha Saville on behalf of Remedy Recruitment Group.[14]The Claimant’s evidence in her witness statement was that the role of Healthcare Navigator was explained to her by the agency. In her oral evidence, though not in her witness statement, she said that she was also interviewed for the role by the Respondent. This was not specifically disputed by the Respondent. I accept the Claimant’s evidence on these points.[15]She was provided with a Job Profile outlining the various duties she would be expected to perform as part of the role. This required her to demonstrate a flexible approach in the delivery of work within the service area. As a result, it stated that the post holder may be required to perform duties not specifically identified in the Job Profile but which were in line with the general responsibilities of the post.[16]When she started in September 2020, the Claimant was not subject to a probationary period (as would typically apply in the case of a permanent employee). Rather she was initially engaged on a trial period. This is the standard label given to the initial period worked by an agency worker with the end user.[17]The evidence, which I accept, is that the Claimant’s working arrangement operated as this signed document envisaged. She completed a timesheet on a weekly basis, which was signed off by her line manager at Havering. She submitted that timesheet to Remedy Recruitment Group. Remedy then paid her for the hours recorded on the timesheet at the rate of £20 per hour. This was paid by BACS transfer. This was apparently an entirely conventional agency arrangement. It was understood by the Claimant to be a typical agency arrangement consistent with her previous agency arrangements. Thereafter her only regular contact with Remedy Recruitment Group was providing approved time sheets and receiving payment on a weekly basis.[18]In the course of her work, she was integrated into the Respondent’s team providing for the housing needs of those that the Respondent was helping. Her email footer was indistinguishable in its style from the style of others who worked in the same housing provision. It described her as “Health Care Navigator” at Housing Needs & Strategy Mgmt as part of the London Borough of Havering. On a day-to-day basis she liaised with her Havering colleagues on all operational matters. She was also referred particular complex mental health cases from managers outside the rough sleeping team to assist those clients with their housing needs. On occasions she carried out duties that went beyond those in her Job Profile including providing practical assistance to clients to move into permanent accommodation. On 8 March 2021 she was nominated for the Unsung Hero Award for reasons set out in a lengthy citation signed by the Respondent’s Chief Executive.[19]In mid-2021, Mr Alexander asked her to join the Boards of two separate organisations. One was to become a Board member of Housing First, which she joined in June 2021. This was a government scheme to work with providers of housing stock who were not local authorities. The other, in July 2021 was to become a board member of the Think Tank Housing Approval Board. This Board focuses on the needs of housing staff.[20]The responsibilities associated with these roles were different from those she had previously performed as part of her Health Care Navigator role. She reported to different individuals. It is unclear whether this work was done during normal working hours or in addition to her normal working hours. The Claimant has not given evidence that she needed to work additional hours in order to undertake this work.[21]These Board roles were consistent with the work she had previously done – in her witness statement at paragraph 4 she said that she had sat on numerous panels set up by various local authorities and bodies over the past 15 years. The Claimant has not suggested that when she did this she had always been directly employed by other local authorities, rather than working for them as an agency worker.[22]At some point in 2021, she was asked to participate in a Personal Development Review (PDR). This was carried out by the Respondent. Normally this would only be carried out for employees rather than agency workers. The Claimant’s line manager at the time, Mr Darren Alexander, explained the decision to ask her to participate in the PDR process because he hoped that she would soon be a permanent employee. No documents have been provided confirming what was discussed during the PDR process and the basis on which this was conducted by the Respondent.[23]During the period up until January 2022, the Claimant did not take any time off sick. She did not claim any mileage expenses. She asked her line manager when she required time off on leave. There is no evidence that this was ever refused.[24]A permanent position of Healthcare Navigator was advertised internally. The Claimant applied, was successful following an interview and was appointed to the role. This took effect from 31 January 2022. From that point onwards, it is accepted that the Claimant was a permanent employee. She received a monthly salary which was different to the pay she had previously received. From then onwards, she was paid by the Respondent. It appears she had no further direct involvement with Remedy Recruitment Group.[25]When the Claimant was recruited by the Respondent to a permanent role, she was offered it graded at Grade 6 rather than Grade 5. There is a factual dispute as to whether this offer was in recognition of the Claimant’s Board roles or whether it was because the role had been regraded. It is not necessary to resolve this dispute. The Claimant accepts that at that point she carried out the Board roles as part of her role as Health Care Navigator. She does not argue that these were discrete and separate responsibilities.[26]The Claimant did not have a good working relationship with her line manager, Denise Reece. As the Claimant states in her witness statement, Ms Reece was appointed to be her line manager “later in 2022” (paragraph 18). This was after the Claimant had become an employee of the Respondent. The Claimant raised an informal grievance with the Assistant Director, Darren Alexander. She regards this as evidence that grievances were handled by the Respondent rather than by Remedy Recruitment Group, which she argues is more consistent with the Respondent being her employer. However, given the relatively late point at which Ms Reece became her line manager, this cannot be evidence as to her status during the period from September 2020 to January 2022.[27]I am unable to make any factual findings as to the existence or the nature of any contractual relationship in September 2020 between Remedy Recruitment Group Limited and Matrix SCM Limited; between Matrix SCM Limited and the Respondent; or between Remedy Recruitment Group Limited and the Respondent. This is because I have not been provided with documents evidencing the relevant agreements that were in existence at this time. The witness called by the Respondent is unable to give any direct evidence herself. Although she asserted that Remedy Recruitment Group Limited would have been engaged by Matrix SCM Limited who in turn contracted with the Respondent, the basis of this assertion is wholly unclear. The contract in the Respondent’s bundle is a contract signed on 9 July 2021 between the Respondent and Matrix. It does not make any reference to Remedy Recruitment Group Limited, nor does it state that it is updating a previous arrangement. The Respondent urges me to find that an equivalent contract was in place when the Claimant started work for the Respondent. I am not prepared to do so, given the complete lack of relevant evidence. As a result, it is not relevant to my decision as to the position in September 2020 to consider the particular contractual terms in the agreement signed ten months later in July 2021. Claimant’s submissions[28]The Claimant’s argument is essentially that she did not have a contract with the agency. As a result, contrary to her initial understanding, she now believes that she must have had a contract with the Respondent. Because there was no agency arrangement and her work was controlled by the Respondent, it is necessary to imply a contract of employment with the Respondent. The absence of contractual documentation evidencing agency arrangements between the Respondent and Matrix or Remedy at the time the Claimant started work is further support for the absence of agency arrangements. The decision to offer her roles on two Boards, which went beyond the original Job Profile, is further evidence that she was employed by the Respondent. The remainder of the arrangements, including the PDR and informal grievance, also supports the existence of a contract of employment between the Claimant and the Respondent. Respondent’s submissions[29]The Respondent argues that the contractual arrangements are entirely consistent with the Claimant working as an agency worker, engaged by Remedy Recruitment Group and supplied to the Respondent as end user. It is significant that the Claimant regarded herself as an agency worker during the period up until her recruitment to the permanent role. If the Tribunal were to find that the Claimant was asked to participate in the PDR process, was appointed to two Boards and lodged an informal grievance which was handled by the Respondent, these are features that are consistent with employment by the Respondent but also are consistent with agency status. It is not necessary to imply a contract between the Claimant and the Respondent to explain the nature of the arrangements. The Respondent also sought to rely on the wording of the 2021 contract between the Respondent and Matrix SCM Limited.
Conclusions
[30]The document signed by the Claimant and by a representative of Remedy Recruitment Group Limited created a contractual arrangement between the Claimant and Remedy Recruitment Group Limited. It is clear that the parties intended to create legal relations even if it did not contain the full terms normally expected to apply to an agency relationship.[31]This agreement governed the Claimant’s placement with the Respondent. It did not describe itself as a contract of employment and need not be interpreted as such. It is common for an employment agency to supply an agency worker to an end user without employing the agency worker. The Claimant, Remedy and the Respondent operated in a way which was consistent with this agreement. I do not find that this agreement was a sham.[32]It is implicit from this document that Remedy Recruitment Group was contractually able to place the Claimant with London Borough of Havering. The nature of the contractual relationship that Remedy Recruitment Group had with other organisations is unclear. No documents have been provided to evidence any contractual arrangements that were in place in September 2020 between Remedy Recruitment Group and Havering or another other contractual intermediary who had a contract with Havering. That is unfortunate, given that such contemporaneous documents would have been of great assistance in clarifying the full contractual structure. However, the agreement between the Claimant and Remedy Recruitment Group Limited for the Claimant to be supplied to London Borough of Havering is inconsistent with there being a direct agreement between the Claimant and Havering covering the same matters.[33]It is telling that the Claimant herself, based on her previous experience, understood that she was working for the Respondent as an agency worker. The relevant caselaw demonstrates that an agency worker is often integrated into an end user’s organisation and will work under the control of the end user whilst still remaining an agency worker. This does not require a contract of employment to be implied between the Claimant and the Respondent. No feature relied upon by the Claimant that took place during the period from September 2020 to January 2022 is only consistent with there being a direct contract of employment between the Claimant and the Respondent. There is no need to imply a contract of employment between the Claimant and the Respondent in order to give business reality to the nature of the arrangement.[34]Therefore, the Claimant’s employment with the Respondent only started on 31 January 2022. By the time her employment ended in September 2023 she did not have the required qualifying period of employment to bring a claim for unfair dismissal under Section 94. As a result, the Tribunal does not have jurisdiction to consider the Claimant’s complaint of unfair dismissal on its merits. It is accordingly dismissed.