Mr P Onwuachu v Efficiency For Care Ltd and A A Bello: 3200315/2024
EMPLOYMENT TRIBUNALS
Case No 3200315/2024
Between
Mr P OnwuachuClaimantEfficiency For Care Ltd and A A BelloRespondent
Before
Employment Judge FlanaganMr A Findley (instructed by Counsel) for claimantMiss N Mallick (instructed by Counsel) for respondentDate 24 October 2024
JUDGMENT
[1]The Tribunal determined that it does not have jurisdiction to hear the claims brought by the Claimant.[2]The complaint of arrears of pay is not well founded and is dismissed.[3]The complaint of unpaid holiday pay is not well founded and is dismissed.[4]The complaint of breach of contract (relating to unlawful hiring fees or otherwise) is not well founded and is dismissed.
REASONS
[1]Through a Claim Form issued on the 8th February 2024, the Claimant made a claim for breach of contract, holiday pay, arrears of pay, non-provision of work and repayment of unlawful hiring fees.[2]The ACAS early conciliation process was instigated on the 10th January 2024, with a certificate being provided on the 12th January 2024.[3]The Claim was acknowledged by the Tribunal with the Respondents being provided with the ET1 and Particulars of Claim. As no Response had been provided within the specified time, under Rule 21 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, the Respondents were informed that they could only participate in the proceedings only as permitted by the Employment Judge with conduct of the case.[4]The Respondents applied for an extension of time to provide a Response. Case Number: 3200315/2024 2 However, the Application was not copied to the Claimant and it failed to provide an ET3 Response. The Application to extend time and allow a Response to be provided was refused by a previous Employment Judge.[5]The Hearing was listed for allocated a full day, via CVP on the 24th October. In advance of the Hearing, the Tribunal was provided with a bundle containing 483 pages, as well as a witness statement from the Claimant. The Respondents also provided a witness statement from Caroline Adesoji- Useni, including a further bundle of documents which largely replicated the bundle provided by the Claimant.[6]At the outset of the Hearing, the Claimant objected to the participation of the Respondent and the inclusion of the late evidence that had been provided. Following submissions from both parties, the Tribunal determined in accordance with Rule 21 of the 2013 Regulations, that the late evidence from the Respondent would not be admitted; the Respondent had failed to submit a Response in time and had failed to comply with the Tribunal’s earlier Orders. The Tribunal concluded that the Respondent was permitted only to ask limited questions of the Claimant and to make submissions on the legal position.[7]The Claimant asserted that he had been employed by Efficiency for Care Ltd from 24th December 2022 until 17th October 2023. The Claimant stated that he was owed his salary for the period of employment, as well as unpaid holiday pay. He also sought repayment of a hiring fee of £10,800 paid, as well as other sums paid to a party not involved in the proceedings and consequent compensation for financial losses.
Relevant Law
[8]Section 23 of the Employment Rights Act 1996 states: ‘An Employment Tribunal shall not consider a complaint about unlawful deduction from wages unless it is presented before the end of the period of three months, beginning with – (2)(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (2)(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received; (3) Where a complaint is brought under this section in respect of-(a) a series of deductions or payments, or(b) a number of payments falling within section (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, Case Number: 3200315/2024 3 The references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (3A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applied for the purposes of subsection (2). (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.’[9]There are parallel provisions in relation to the limitation period for breach of contract claims that are within the jurisdiction of the Employment Tribunal, under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623.[10]When a Claimant seeks to excuse the late presentation of the ET1 Claim Form on the grounds that it was not reasonably practicable to present the claim within the time limit, the rules should be given ‘liberal construction in favour of the employee’. What is reasonably practicable is a question of fact and a matter for the Tribunal to determine. The onus of proving that the presentation in time was not reasonably practicable rests on the Claimant.[11]Section 3 of the Employment Tribunals Act 1996 provides the Employment Tribunal with jurisdiction to hear contractual claims brought by employees. Any claim must arise or be outstanding on the termination of the employment and is restricted to a set number of claims.[12]The Employment Tribunal has jurisdiction to hear a contractual claim relating to a contract that has been terminated before an employee had actually started work: Sarker v South Tees Acute Hospitals NHS Trust [1997] ICR 673.[13]At common law, for a contract of employment to exist, there must be an offer, which is accepted, with an obligation for consideration and an intention to create legal relations. The Tribunal must also consider additional factors such as whether there is exclusivity to the contract, sufficient certainty and a mutuality of obligation: the duty of an employer to offer work and for an employee to undertake that work.[14]The date of termination of a contract of employment is the date upon which the contract comes to an end. If the employment is ended with notice, that date is the expiry of the notice period. When no notice is served, it is the date when the employee ceases to work (in a case of resignation) or is summarily dismissed by the employer. Case Number: 3200315/2024 4[15]The Parties referred to other cases in the course of submissions. Notably, the Claimant cited Okedina v Chikale [2019] EWCA Civ 1393 regarding where the Respondent raises a defence of illegality to the contract due to a lack of appropriate immigration visa. The Claimant also highlighted the cases of Collier v Sunday Referee Publishing [1940] KB 647 and Beveridge v KLM (UK) Ltd [2000] IRLR 765 regarding an employers’ duty to provide pay. Factual Findings[16]The Claimant, Mr Onuwachu gave evidence. He provided answers to questions from counsel for the Respondents, as well as his own counsel and the Tribunal.[17]The Claimant has been in the UK previously, having studied in the Manchester area in 2014 and 2015. He is educated to a master’s level, obtaining an master’s degree in Management.[18]The Claimant referred to an Offer of Employment, which was dated the 30th November 2022. It stated that the Claimant was offered the post of a Care Support Worker for the Respondent, conditional on receipt of satisfactory references and a suitable response from the DBS. The employment offer was stated as being confirmable only when satisfactory replies had been received.[19]Following the receipt of the offer letter, an application was made for the Claimant to obtain a visa with the UK Visa and Immigration Service. At the time, the Claimant resided in Nigeria. As a Nigerian national, he was not permitted to enter the UK without a valid visa. It is notable that the purported employment start date declared on the visa application is sometime before the offer letter was provided and then the Claimant arrived in the UK; 31st October 2022.[20]There is evidence that the Claimant paid a considerable sum of money for what he understood to be ‘the job’ whilst he was in Nigeria. The Claimant had initially corresponded with a doctor, whom the Claimant paid money more than £10,000 in order ‘to access’ employers in the UK. The named doctor was never a party to these proceedings.[21]When the Claimant was in Nigeria, he also communicated with an individual named Chinedu, purportedly on behalf of the Respondents. The number used by Chinedu was not a UK-based telephone number. The Tribunal accepted the Claimant’s evidence that he took direction from Chinedu, initially delaying his arrival to the UK as a result of what he was told.[22]The Claimant arrived in the UK on the 24th December 2022 and immediately made contact with Chinedu, asking when he was to start work and where he should meet. The Claimant was informed that he had to complete his DBS checks and was given details of WhatsApp groups that he could join.[23]Between the 30th December 2022 and 4th January 2023, the Claimant asked Case Number: 3200315/2024 5 when his work or training would start. The text conversations indicate that the Claimant was trying to source accommodation, as well as making payments for various other services that were being offered.[24]The Claimant attended training between the 17th and 19th January 2023. The training was provided by a third party, with workers from other organisations present as well as the Claimant. The Claimant paid for the training and received certificates for the courses he undertook.[25]Following the training, the Claimant stated that he never undertook any work for the Respondents or followed any other direction from Efficiency for Care Ltd or any representative of theirs. He stated that he was told that he would have to interview for a placement, but he was never interviewed.[26]The documentary evidence – mostly in the form of text messages – support the view that the Claimant was becoming frustrated with a lack of work and income. He had received his DBS certificate on the 30th January 2023, but this apparently did not allow him to work for other organisations. Despite there being no impediment to him working for the Respondents from 1st February 2023, he did not undertake any work for them.[27]The Claimant stated that he was ‘kicked out’ of WhatsApp groups for the Respondents around February 2023. Other communications were then through the Telegram application. He also went to the Respondent’s address in Clacton, which was in a residential area and he could not find anyone involved with the Respondents.[28]The Claimant’s frustration at a lack of work and money resulted in him requesting his P45 on the 14th March 2023. He understood that was a document relating to a termination of employment. The Claimant’s evidence, which the Tribunal accepted, was that he actively sought other employment after this date. There was no evidence of a resignation or termination letter.[29]In April 2023, the Claimant started to work for another care provider. He did not seek permission from the Respondents to work for another organisation. The new employer obtained a fresh DBS certificate for the Claimant, as the details in the first certificate were not accurate.[30]The Claimant continues to work for other organisations. He provided the Home Office with details of a new sponsor for his Visa on the 18th October 2023.
Discussion and Conclusions
[31]The Claimant arrived in the UK on the 24th December 2022, but this was not a date that was agreed with the Respondent – as it was the day the Claimant chose to catch a flight having postponed an early flight. There was never any form of agreement with the Respondent when the Claimant would start work, with no signed contract of employment or other confirmation of his terms and conditions. Case Number: 3200315/2024 6[32]The Claimant’s assertion that he was an employee for the specified period – from the 24th December 2022 until the 17th October 2023 – was not supported by the evidence, or his own actions. The Claimant never undertook any work for the Respondents; whilst this is not fatal to the existence of a contract of employment, crucially, he clearly did not consider himself bound by any terms or conditions consistent with a contract with the Respondents.[33]The Claimant attended training, with a third-party provider, between the 17th and 19th January 2023. This was under direction of the Respondents, but the Claimant paid for the training and never received any payment for his attendance. The Claimant never made any demands for payment for his attendance at training.[34]The payment for the significant sum sought from the Respondents was actually paid to Dr Alaneme, who was not a party to these proceedings and there is no evidence of any connection to the Respondents. The payment to Dr Alaneme was made in advance of the offer of employment, the Claimant’s arrival to the UK and the Claimant’s asserted start date of employment. The Tribunal was told that this was to be put in touch with ‘employers’ in the plural, as opposed to a single employer. The payment therefore was not part of any contract of employment with the Respondents.[35]When the Claimant arrived in the UK, he knew that he would not be able to start work immediately, as he needed to complete training and to obtain his DBS certificate. He had been in the UK previously and was familiar with the requirements that needed to be fulfilled before starting work. It follows that he knew he would only be able to start any work – and fulfil the conditions of his offer of employment – once these were undertaken. The earliest this could have occurred was the 1st February 2023.[36]The Claimant did make complaints to his employer regarding needing work – in order to pay his bills – but did not receive a response. However, the Claimant did not make any complaint to the Employment Tribunal following his attendance at training, or shortly after 1st February 2023.[37]In the Claimant’s evidence, he accepted that he understood he needed to be interviewed for potential jobs after he had undertaken his training and obtained his DBS certificate. He also stated that he would need to agree to a work placement, as he would not be able to travel any distance and did not drive. This was inconsistent with his primary case, which is that he had already become an employee before the 1st February 2023 and more akin to working with an agency.[38]The Tribunal was not satisfied that there was a contract of employment between the Claimant and the Respondents, either as the Company Efficiency for Care Ltd or Aisha Angela Bello as an individual. The Tribunal considered there was insufficient evidence of a concluded offer of employment, which had been accepted by the Claimant for consideration. Whilst the Claimant had travelled to the UK, the parties were not agreed as to the terms of any employment, in particular after the conditions contained within the offer letter were satisfied from the 1st February 2023. There was Case Number: 3200315/2024 7 no agreement of a start date, location of work or what hours of work would be undertaken; thereby lacking basic agreement or certainty to the contract. The Claimant’s evidence for this period primarily focused on him being removed from WhatsApp groups.[39]In any event, the Tribunal finds that the Claimant considered himself not to have been employed – or in any form of employment relationship with the Respondent – after the 14th March 2023, when he asked for his P45. The Claimant understood that this was a tax document to be provided when he was no longer employed. Although the P45 was not provided, this demonstrated the Claimant’s subjective belief of his position.[40]The Claimant stated that he actively sought work for other organisations after 14th March 2023 and did not inform the Respondents of his work with other companies from April 2023. The Tribunal was satisfied that this was because he did not believe he had to inform the Respondents as he was not employed by them.[41]The Claimant did not make any request for payment from the Respondent from the 14th March 2023 until these proceedings were instigated. He worked for other organisations, having obtained a DBS certificate in his accurate name in April 2023. Notwithstanding the conclusions reached above, the latest possible date for the termination of any employment relationship was the 14th March 2023.[42]The ET1 Claim Form was presented to the Tribunal on the 8th February 2024. The ACAS Early Conciliation process was undertaken between the 10th and 12th January 2024.[43]The Claimant asserted that the 17th October 2023 was the date of termination for his employment with Respondent, which would have meant the ET1 was presented within time. However, this was a wholly arbitrary date selected solely due to it being the date the Home Office was informed of the Claimant’s new visa sponsor. For the reasons provided above, the Tribunal has determined that even if there were an employment contract, that contract must have been terminated by the 14th March 2023.[44]The Claimant was working for other companies throughout the period from the 14th March 2023 until the presentation of the Claim Form; he was in good health and there was no impediment or any form of difficulty to him bringing a claim. There was no evidence upon which the Tribunal could conclude that it was not reasonably practicable for the Claimant to bring a
claim.
[45]The Claim has not been brought within the three-month time limit specified in section 23 of the Employment Rights Act 1996 and the parallel provisions in the 1994 Statutory Instrument. It was reasonably practicable for the Claimant to bring the Claim in time. Case Number: 3200315/2024 8[46]The Tribunal therefore does not have jurisdiction to hear the claims brought and they are accordingly dismissed.