Mr A K Tewari v Trustees of Vishwa Hindu Parishad - a Registered Charity: 3200712/2021

EMPLOYMENT TRIBUNALS

Case No 3200712/2021

Between

Mr A K TewariClaimant

Trustees of Vishwa Hindu Parishad - a Registered CharityRespondent

Before

Employment Judge Hallen

Ms. Esther Godwins- Advocate for claimant

Mr. Kishan Bhatt- Solicitor for respondent

Date 14 April 2023

JUDGMENT

ON OPEN PRELIMINARY HEARING This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was V by Cloud Video Platform. A face-to-face hearing was not held because the relevant matters could be determined in a remote hearing.

[1]The claims of unfair dismissal and wrongful dismissal are not struck out as having no reasonable prospects of success nor are they subject to a deposit

[2]A full merits hearing for 6 days has been listed for 8 to 10 February and 13 to 15 February 2023 at the East London sitting Centre.

REASONS

Discussion and Conclusions

[1]The Claimant in a Claim Form submitted on 3 March 2021, brought claims for: unfair dismissal, wrongful dismissal, breach of contract, unlawful deduction of wages and breach of statutory duty.

[2]In a written application on 6 July 2021, the Respondent requested a public preliminary hearing to determine its application for a strike out order and in the alternative a deposit order on behalf of the Respondent. The Respondent contended in its applications that the Claimant’s claims had no reasonable prospects of success as, the unfair and wrongful dismissal claims were misconceived on the basis that the Claimant had been reinstated prior to the Claim Form being issued. The breach of contract and breach of statutory duty had not been sufficiently particularised. The unlawful deduction of wages claim had not been sufficiently particularised and was out of time.

[3]Following an unsuccessful judicial mediation between the parties on 7 September 2021, the Tribunal on 11 September 2021 sent written notice to the parties that the Respondent’s application would be considered at a hearing on 9 December 2021, the Tribunal having already listed the claims for a three day final hearing on 15-17 February 2023.

[4]With the assistance of the Claimant’s representative, the claims were clarified as follows: Unfair dismissal contrary to section 98 Employment Rights Act 1996 (ERA) and automatic unfair dismissal under section 100 relating to health and safety. Wrongful dismissal in respect of the Respondents failure to pay statutory notice to the Claimant. A failure to pay holiday pay for the two years preceding the commencement of the claim. A failure to pay national minimum wage for two years prior to the commencement of the claim.

[5]At the beginning of the hearing, the parties agreed that the application would not be determined in one day as they wished to call oral evidence in support of the application. l accommodated the parties by ensuring that the applications could be determined in a threeday consecutive sitting running from 9, 10 and 13 December 2021 rather than the application going part heard.

[6]At the outset of the hearing, I directed that the primary issues for deciding the Respondent’s strike out/deposit application, were identified were as follows: Was the Claimant a worker? if yes, does the Tribunal have jurisdiction to hear a claim for unfair dismissal and or failure to pay statutory notice pay (wrongful dismissal); Was the Claimant an employee employed under a contract of employment, either express or oral? If the Claimant was employed under a contract of employment was he dismissed by the Respondent? The Respondent stated that although the Claimant was dismissed, he was reinstated under the same terms and conditions as he previously enjoyed. The Tribunal, therefore had to ascertain whether this was the case. If it was not the case, the Tribunal had to decide whether the Claimant should be permitted to pursue his claims for unfair dismissal and failure to pay notice. I directed that the issues related to inadequate particularisation of the claim could be dealt with by way of submission and permission to provide further particulars either during the course of the hearing and/or prior to the final hearing. These latter matters were not part of the Respondents application.

Relevant Law

[8]The following statutory provisions were considered in relation to the merits of the claims and time limits: Employment Tribunals Extension of Jurisdiction (E&W) Order 1994 art3, Working Time Regulations 1998/1833, Employment Rights Act 1996. Striking Out

[9]An employment judge has power under Rule 37(1)(a), at any stage of the proceedings, either on its own initiative or on the application of a party, to strike out all or part of a claim or response on the ground that it has no reasonable prospect of success.

[10]In Hack v. St Christopher’s Fellowship

[2016] ICR 411

EAT, the then President of the Employment Appeal Tribunal said, at paragraph 54: “Rule 37 of the Employment Tribunal Rules 2013 provides materially:- “(i) At any stage in the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds – (a) Where it is scandalous or vexatious or has no reasonable prospect of success…55. The words are “no reasonable prospect”. Some prospect may exist, but be insufficient. The standard is a high one.”

[11]Lady Smith explained in Balls v Downham Market High School and College

[2011] IRLR 217

, EAT (paragraph 6): “The Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the words “no” because it shows the test is not whether the Claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in the submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects….”

[12]In Romanowska v. Aspirations Care Limited [2014] (

UKEAT/015/14

) the Appeal Tribunal expressed the view that where the reason for dismissal was the central dispute between the parties, it would be very rare indeed for such a dispute to be resolved without hearing from the parties who actually made the decision. It did not however exclude the possibility entirely.

[13]The EAT has held that the striking out process requires a two-stage test in HM Prison Service v. Dolby

[2003] IRLR 694

EAT, at para 15. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim, order it to be amended or order a deposit to be paid. See also Hassan v. Tesco Stores

UKEAT/0098/19/BA

at paragraph 17 the EAT observed: “There is absolutely nothing in the Judgment to indicate that the Employment Judge paused, having reached the conclusion that these claims had no reasonable prospect of success, to consider how to exercise his discretion. The way in which r 37 is framed is permissive. It allows an Employment Judge to strike out a claim where one of the five grounds are established, but it does not require him or her to do so. That is why in the case of Dolby the test for striking out under the Employment Appeal Tribunal Rules 1993 was interpreted as requiring a two-stage approach.”

[14]It has been held that the power to strike out a claim on the ground that it has no reasonable prospect of success should only be exercised in rare circumstances (Tayside Public Transport Co Ltd (t/a Travel Dundee) v. Reilly

[2012] IRLR 755

, at para 30). More specifically, cases should not, as a general principle, be struck out on this ground when the central facts are in dispute.

[15]In Mechkarov v. Citibank N A

UKEAT/0041/16

, the EAT set out the approach to be followed including: -(i) Ordinarily, the Claimant’s case should be taken at its highest.

(ii) Strike out is available in the clearest cases – where it is plain and obvious.

(iii) Strike out is available if the Claimant’s case is conclusively disproved or is totally and inexplicably inconsistent with undisputed contemporaneous documents. Deposit Orders

[16]A deposit order can be made if the specific allegation or argument has little reasonable prospect of success. In Hemdan v. Ishmail

[2017] IRLR 228

, Simler J, pointed out that the purpose of a deposit order ‘is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails’ (para 10), she stated that the purpose ‘is emphatically not to make it difficult to access justice or to effect a strike out through the back door’ (para 11).

[17]The Claimant gave cogent and consistent evidence on the detail and the basis of his claims for unfair and wrongful dismissal. The details were sufficient to potentially establish the claims of wrongful and unfair dismissal and they should go forward to a hearing. The Tribunal made no definitive decision about time bar in any of the claims. There was no need for a deposit order.

The relevant law

[19]Case management Orders for a hearing will be issued separately.

[20]The Claimant is entitled to payment for accrued but untaken holiday pay in the sum of £1513.68

[21]The Respondent is ordered to pay the Claimant the sums of £516.46 + £4,107.11 + £ 8,539.80 + £1247.40 + £1513.68 that is a total of £15,924.45 (which may be discharged by paying this sum less any deductions of tax and national insurance required by law)

[22]Upon the Claimant stating that he has not received any state benefits during any relevant period and the Tribunal accepting that assertion it is declared that the recoupment regulations shall not apply to these awards.

Discussion and Conclusions

[1]Vishwa Hindu Parishad is a registered charity whose objects include facilitating and promoting worship of the Hindu faith in the United Kingdom. The Respondents are the trustees of that charity. The Respondents operate a religious centre which was referred to interchangeably as a temple or as I understand it more properly, a Mandir from premises at 43 Cleveland Road in Ilford, East London (‘the Mandir’).

[2]The Claimant has sufficient experience and knowledge of the Hindu faith to be regarded as a priest, or more properly, Purohit. He started volunteering at the Mandir from around 2013. He says that from around 2016 he worked full time at the Mandir and received a regular payment for his services. It is his case that the arrangement was a contract of employment.

[3]On 17 November 2020 the Claimant was sent a letter summarily terminating the arrangement between him and the Mandir. He instructed a solicitor to act for him. On 14 December 2020 the Claimant solicitor invited the Respondents to permit the Claimant to appeal against his dismissal. The Respondents agreed to conduct an appeal and the Claimant attended a meeting on 29 January 2021 conducted by a Mr Christopher Edgley who is an independent human resources consultant. Christopher Edgley prepared a report dated 12 February 2021 he concluded that, whilst the Claimant has been guilty of some misconduct, the dismissal was unjustified and recommended that the Claimant was reinstated on terms which he believed reflected the existing arrangement.

[4]The Claimant had contacted ACAS for the purposes of early conciliation on 5 January 2021 receiving an early conciliation certificate on 29 January 2021. On 3 March 2021 the Claimant presented his ET1 to the Employment Tribunal. He has brought claims of unfair dismissal, a claim for notice pay, a claim for holiday pay and for other arrears of pay which the parties have clarified was intended to refer to a claim for unlawful deduction from wages representing the difference between what the Claimant was paid and the national minimum wage.

[5]On 11 March 2021 the Respondents wrote to the Claimant and informed him that they were accepting Mr Edgley’s recommendations. They stated that the Claimant would be given a Final Written Warning. They further stated that the Claimant would be provided with a revised version of the casual ‘Zero hour’ contract in due course.

[6]These proceedings have got a surprising procedural history. The Respondents applied to strike out the Claimant’s claims on the basis that he was not employed under a contract of employment and that he was in any event unable to maintain a claim for unfair dismissal because any dismissal that took place on 17 November 2020 had vanished when a decision was taken on the appeal. Employment Judge Hallen heard that application on the 9, 10 and 11 of December 2021. He decided that the claims should not be struck out and gave very short reasons for his decision.

[7]In 2021 the Claimant brought further proceedings in the High Court of Justice including claims for defamation. Those claims were struck out and it appears that permission to appeal those decisions has been refused by the Court of Appeal at least in respect of the majority of the defendants. The Claimant was ordered to pay a substantial sum in costs. The Respondents say has not paid anything under that costs order. The hearing

[8]At the outset of the hearing I was anxious to ascertain what the real issues were between the parties. In discussions the following concessions were made by the parties: 8.1. that the Claimant was a worker for the purposes of his claim for holiday pay and for the purposes of his entitlement to the national minimum wage; and 8.2. that if I were to hold that the Claimant was dismissed on 17 November 2020, then that dismissal was unfair; and 8.3. that the Claimant was no longer contending that he was dismissed for a health and safety reason and that his dismissal was automatically unfair.

[9]The Respondents position was that the dismissal on 17 November 2020 vanished when the decision was taken to ‘reinstate’ the Claimant after the appeal. It took me some time to understand the Claimant’s position. What emerged was that the Claimant’s primary position was that the dismissal did not vanish at all but that if it did the actions of the Respondents sending him the letter of 11 March 2021 which purported to reinstate him amounted to an express dismissal. I asked whether the Claimant was arguing in the alternative that he had been constructively dismissed and I was told that he was not.

[10]The witness statements of the parties included a large amount of material about whether the Claimant had, or had not, committed various acts of misconduct before his dismissal. Given that there had been a concession that if the Claimant was dismissed on 17 November 2020 it was unfair then it would only be necessary for me to deal with that evidence on the question of whether or not the Claimant had caused or contributed to his dismissal and even then only if I were to accept that that was the operative dismissal.

[11]I was told that in the light of the concession by the Respondents that the Claimant was a worker the remaining disputes about holiday pay and wages were limited to disputes about quantum.

[12]I therefore directed that we commence the hearing dealing only with the following issues of liability these were: 12.1. Did the Claimant had 2 years of continuous service under a contract of employment immediately before his dismissal on 17 November 2020? (‘the employee issue’) 12.2. Was the Claimant dismissed (either on 17 November 2020 or on 11 March 12.3. That first issue required the tribunal to decide whether or not the effect of the decision taken on the appeal was to extinguish the dismissal of 17 November 2020 (the vanishing dismissal issue). 12.4. If the dismissal of 17 November 2020 was extinguished was the Claimant dismissed by the Respondent on 11th of March 2021? 12.5. If so, was the reason for the dismissal for a potentially fair reason falling within section 98(1) or (2)? 12.6. If so, was the dismissal fair applying the test set out in section 98(4) of the Employment Rights Act 1996? 12.7. If the appeal did not extinguish the dismissal 17 November 2020 then the parties agreed that the dismissal was unfair.

[13]The Claimant was assisted at all times by an interpreter provided by the Tribunal Service. He explained that despite having a law degree and having passed his Legal Practice Course he was not comfortable giving evidence in the English language because of his strong accent. I was asked and agreed to allow the interpreter to assist Ms Godwins to take instructions from the Claimant. There was little practical alternative and I took a pragmatic stance that as long as the Interpreter understood his primary duty was to the Tribunal and not either party and that he did not reveal any privileged information permitting this course of action would allow the case to proceed smoothly.

[14]Having taken a surprising amount of time to agree what was in dispute we proceeded to hear evidence. I heard from: 14.1. the Claimant himself; and 14.2. Vijay Khetarpal, the chairman of the Ilford Executive Committee and the person who sent the Claimant the letter sent on 11 March 2021; and 14.3. Dr Pratibha Datta, who was a person, co-opted onto the committee at the Ilford branch in order that she could give public health advice and one of the people that complained about the Claimant’s conduct before his engagement was terminated on 17 November 2020.

[15]Having heard the evidence I then heard submissions by both parties. Mr McCombie had produced written submissions and authorities. Ms Godwins had prepared written submissions in support of her client’s case in which she referred to other cases. By the time I had heard submissions it was late on Friday 10 February 2023. Ms Godwins had indicated that she was in professional difficulties attending the tribunal on Monday, 13 February 2023. I therefore indicated that I would deliberate on that day and deliver a judgment on 14 February 2023. I would then proceed to deal with any other matters in the case.

[16]I had prepared a written note of the reasons that I intended to give orally on 14 February 2023. Rather than read from that note I provided a copy to the parties with the caveat that, it was intended as a rapid way of giving reasons and that I would tidy it up if the parties formally sought full written reasons. I later gave oral reasons for my decisions in respect of remedy. The parties requested full written reasons for both decisions and I have combined those reasons in a single document.

[17]Following my determination of the issues set out above we discussed what issues remained to be determined. The Respondent had formally admitted liability for claims of accrued but untaken annual leave pursuant to the Working Time Regulations 1998 and a claim relating to a shortfall of pay by reason of a failure to pay the National Minimum Wage. That claim, by concession, had been brought only pursuant to part II of the Employment Rights Act 1996 as a claim for unlawful deduction from wages and was therefore limited to the period of 2 years ending with the date of presentation of the ET1. The parties had been able to agree the amount to be paid by way of an award subject to a dispute about whether the claims should be subject to an uplift by reason of a failure to follow a relevant ACAS code of practice.

[18]The parties required me to adjudicate on the following issues in respect of the claim of unfair dismissal: 18.1. the parties had agreed the basic award payable under section 119 of the Employment Rights Act 1996 subject to the points below. 18.2. Whether I should make an order for reinstatement or re-engagement pursuant to sections 114 or 115 of the Employment Rights Act 1996? 18.3. There was no agreement about the loss sustained by the Claimant as a consequence of his dismissal and I was required to resolve the question of how much the Claimant would have earned had he not been dismissed. 18.4. The Claimant included in his schedule of loss a claim for loss of statutory rights claiming the sum of £3000. The Respondent agreed in principle that the Claimant was entitled to an award but suggested a conventional sum of £500 would be the most that was appropriate. 18.5. It was the Respondent’s case that the Claimant had failed to comply with his duty imposed by section 123(4) of the Employment Rights Act 1996 to mitigate any loss. As a sub issue I was invited by the Claimant to find that the publication of an email newsletter giving details of his dismissal blighted his employment prospects. 18.6. I was required to deal with whether or not the tribunal considered that the conduct of the Claimant before the dismissal was such that it should be just and equitable to reduce the amount of the basic award pursuant to section 122(2) of the Employment Rights Act 1996; and 18.7. I also needed to ask whether the dismissal was to any extent caused or contributed to by any action of the Claimant and whether it would be just and equitable to reduce the compensatory award on that basis pursuant to section 123(6) of the Employment Rights act 1996 18.8. I needed to consider whether or not the compensatory award should be subjected to an uplift by reason of the admitted failure of the Respondents to follow the ACAS code of practice on discipline and grievances at work. If I were to order an uplift I was required to come to a conclusion as to the level of uplift. 18.9. The remaining issues were whether or not I should uplift the agreed amounts payable by the Respondents in respect of the failure to pay holiday pay and the national minimum wage because of a failure to follow any ACAS code of practice.

[19]In order to determine those issues the Claimant and Dr Pratibha Datta were recalled to give evidence on those issues. I then heard further submissions before giving a decision on the remaining issues.

[20]The parties were asked to and did agree the amounts payable to the Claimant pursuant to the decisions I reached. Findings of Fact – liability decisions

[21]Having heard the evidence I make the following findings of fact. I do not set out the entirety of the evidence that I heard but have had regard to witness statements and oral evidence together with such documents in the bundle that the parties directed me to read. The fact that I may not mention some piece of evidence does not mean that I did not have it in mind in reaching these conclusions.

[22]As I have set out above the Mandir at Ilford is a branch of the larger charitable organisation. It is run locally by a committee which is principally elected. There is an executive committee which comprises the Chairman the Secretary and the Treasurer who have delegated power to manage the Mandir on a day-to-day level. Within volume 2 of the bundle of documents was a copy of the constitution of the VHP (UK). That document says nothing about the terms upon which priests or other people doing work might be engaged. I was further supplied with a copy of bylaws of the organisation. Those bylaws provided for each branch to elect a committee. They further provided for the establishment of a Central Working Committee which was to be made up of the Founder/Permanent Trustees, the Chairpersons of each branch and the Secretary of each branch. One specific matter reserved to the Central Working Committee was expressed as: ‘Any appointment on a subsequent release from duty of any employee including any Purohit shall be first referred to the Central Working committee who shall consider the matter and either approve or reject the same’

[23]The Claimant started working as a priest at the Ilford Mandir in 2013. Initially he neither asked for nor was offered any remuneration directly for his services by the Respondents. The number of priests working at the Mandir varied. I further find that the opening times of the Mandir also varied from time to time. When the Mandir was closed no priest would be working. At various times there was, what was referred to as, a resident priest. That priest would be provided with accommodation at or close to the Mandir itself.

[24]The core duties of the priests were to open and close the Mandir and to perform the religious rights throughout the time the Mandir was open. He would be required to keep the dais where the deities were placed clean by removing old offerings. He would be required to lead prayers and offer religious instruction to devotees. The Claimant was never given instructions about which prayers to say or about what he might say to devotees.

[25]In 2016 a priest who had been working at the Mandir left. The Claimant was then asked whether he would fill the vacant position. He says that he was approached with ‘a view to discussing formal employment’. The Claimant was at the time studying for a law degree. There is no evidence that he or the committee members at the time gave any great thought to formality. I find that the Claimant was asked to do many more hours than he had done as a volunteer. Within the bundle there is a letter from Dinish Agarwal who was at that time the assistant treasurer. That letter records the Claimant being paid a total of £600 for some days in January 2016 and February 2016. It goes on to say that following a meeting a decision had been taken to pay the Claimant £800 per month as ‘a salary’. The Claimant says, and I accept, that at that time he was working in the region of 40 hours per week. The Claimant would have known that his salary was less than the national minimum wage. He was however content to agree the arrangement. I have seen an email sent by the Claimant on 29 October 2016 in which he writes to the then Chairman setting out that his duty hours were 5 PM to 8 PM Monday to Friday and 8 AM to 8 PM on Saturday and Sunday. That is a total of 39 hours. He goes on to say that he had worked 96 hours in excess of that and asked that he be paid £5 an hour but that his wages be donated to the Mandir.

[26]The Claimant was paid £800 per month between March 2016 and November 2019. He says that he was not given particulars of employment or a written contract. It seems that during this period he did not question the arrangement.

Discussion and Conclusions

[27]I find that during this period the Claimant was asked to work such hours as were required. I do not accept that there was any agreement to guarantee the Claimant any specific number of hours. The flexibility in the arrangements is illustrated by what the Claimant says in his witness statement about events in September 2018. The Claimant says that he sought to reduce the number of hours he was working. The Respondents engaged another priest at that time and the Claimant suggests that he was told he would have no more work. It appears that the Chairman Darshan Chodha, wrote on the Claimant’s behalf on 25 September 2018 suggesting that any dismissal was withdrawn. He said that the Claimant had been given his position on a permanent basis in early 2016 after completing 2 years of satisfactory works and that his salary had been fixed at £800 a month for 40 hours worked per week.

[28]It appears that this dispute resulted in the Claimant being sent a draft contract of employment. That document is headed ‘Contract of Employment’. In his closing submissions Mr McCombie accepted that had the contract been agreed to it would have amounted to a contract of employment. The contract provided for a 3 month probation period and thereafter the agreement would be initially for one year which may be extended. Within its currency the agreement could be terminated by one months’ notice on either side.

[29]The contract included a list of duties which set out the core duties of a priest which I have outlined above. Under a heading hours of work were terms setting out that the Claimant’s normal hours of work would be 15 working from 5 PM to 8 PM on Monday, 8 AM to 5 PM on a Friday and with 3 hours on Saturday and Sunday on alternate weeks. The salary that is proposed was £300 ‘pro rata’ plus 50% of ‘Dakshinas’ paid monthly in arrears. There was no additional payment for overtime.

[30]The contract also provided for ‘outside bookings’ which needed to be booked by a Committee Member. There was a requirement that all outside income was shared 50/50. The contract states that the Claimant will be entitled to 2 weeks of annual leave at a time mutually convenient to himself and the management. He would not otherwise be paid for any absence through sickness or injury but was told that he would have to claim the Statutory Sick pay which he might be entitled directly from HMRC.

[31]I find that ‘Dakshinas’ were gifts or sums of money paid directly by devotees to a priest. Traditionally but not invariably monetary gifts were in sums of £11, £51 or £101. These were generally made when a priest had conducted some ceremony.

[32]The Claimant protested that he should not have to account for any ‘Dakshinas’ received by him. He took the stance that it was contrary to Hindu Teachings to require him to account for these sums. I was told, and I accept, that not all the priests agreed and that some did account for ‘Dakshinas’. Other than being told that the Claimant was paid £11 for one particular ceremony the Claimant has not revealed how much he received by way of ‘Dakshinas’ from the congregation. After the Claimant protested he was not asked to account for any ‘Dakshinas’.

[33]The contract of employment provided for a grievance/disciplinary procedure. The disciplinary procedure was brief it stated ‘All disciplinary issues will be dealt with initially by the person responsible for the Priest appointed by the Committee. If not satisfactory, the Management Committee will take the final decision’. I find that the reference to a second decision if an earlier decision was unsatisfactory was a right of appeal.

[34]The Claimant sent a long e-mail responding to the contract he was offered. He started by objecting to the imposition of a probation period stating that he had been employed since 2016. He then took issue with the description of the duties. He responded to a requirement that he make himself available for festivals by saying that he would agree that only if he had no previous commitments and he was paid a reasonable sum. He objected to what he saw was an instruction to keep the whole premises clean. I find that that was not the intention of the draft agreement but accept that it is not well worded.

[35]The Claimant did not in his e-mail complain about the allocation of 15 hours per week. What he did say was that his rate of pay was less than the National Minimum Wage and he compared his pay with that of the resident priest who had free accommodation and some utility bills paid. The Claimant does not state in terms that there is no right to vary his hours of work.

[36]I find that the Respondents did not pursue the issue of the written contract any further. I do not know why they took that stance. The Claimant was asked to, and did continue working as a priest for 15 hours per week and he was paid a regular sum of £300 each month. The Claimant says in his witness statement that he proceeded on the basis that his objections to the written contract had been accepted by the Respondents.

[37]In March 2020 the Mandir was closed during what is usually referred to as the first lockdown. The other priests engaged by the Mandir had left at around the same time. The Claimant was asked to attend the Mandir and conduct prayers behind closed doors. I find that despite the fact that this would not have taken 15 hours per week the Claimant continued to be paid the same sum of £300 per week.

[38]The Mandir reopened from 29 June 2020. There were a large number of measures put in place to attempt to restrict the spread of Covid 19. At this stage the Claimant was asked to undertake many more hours. I find that initially there was no discussion about adjusting the sums paid to the Claimant. Vijay Khetarpal said in his witness statement, and was not challenged upon this by the Claimant, that the delay in adjusting the Claimant’s remuneration was because of the fact that the Committee was unable to meet because of covid restrictions. I accept that was the case. An increased payment was agreed and the Claimant was handed two cheques which he refused to accept. They were subsequently posted and cashed by him. The decision that was made was to pay the Claimant £600 per month for the hours he was then working.

[39]On 23 October 2020 a decision was taken by the Executive Committee, following advice from Dr Datta, not to hold any further congregations and to cancel a festival ‘Akand Ramayan Path’. This was due to take place the following day. The Claimant did not agree with this decision. He sent an e-mail informing the Committee that he was not available for work on 24 October 2020 and asking to take the time off as ‘casual/Annual’ leave. The Claimant went and celebrated the festival in Leytonstone and he tells me, and I accept, that he was paid £11 as ‘Dakshina’.

[40]The Claimant sent a further e-mail on 26 October 2020 informing the Executive Committee that he was not available to work on 28 October 2020 as he had work as a priest elsewhere. He again asked to take the time off as Casual/Annual leave.

[41]It is not necessary for me at this stage to deal with the disputes between the Claimant and the Committee specifically in respect of the precautions that needed to be in place during the Covid pandemic. It is sufficient to say that there were disagreements. The Respondents formed the view that the Claimant was disregarding instructions designed to keep the Mandir covid secure. That, and other matters, led to a meeting of the Executive Committee that took place in the absence of the Claimant. A decision was reached that his services would be terminated. That decision was set out in the letter of 17 November 2020. One of the matters that the Committee took issue with was the two occasions in October 2020 where the Claimant had, with short notice, informed the Committee that he would not be working.

[42]As I have stated above, on 14 December 2020 the Claimant’s solicitor suggested that the Claimant was afforded a right of appeal. It was suggested that the decision be taken by a member of the Committee who had not been previously involved with the decision to dismiss the Claimant. As I have said above a decision was taken by the Executive Committee to ask Christopher Edgley to review the decision and to make a recommendation.

[43]Christopher Edgley met with the Claimant via Zoom on 29 January 2021. Christopher Edgley had statements from members of the Committee setting out their concerns about the Claimant. In his report Christopher Edgley is somewhat critical of the Respondents in particular commenting upon a lack of policies and the means of reaching the decision to dispense with the Claimant’s services. He is also critical of the Claimant. He commented that the Claimant was fiercely critical of the Committee. He came to the conclusion that to some extent the misconduct alleged by the Committee was made out. He found that whilst it was sufficiently serious to justify a warning it was not sufficiently serious to justify dismissal. He states in terms that he is applying the test set out in the Employment Rights Act 1996. The conclusion he reached about the complaints about the Claimant giving short notice to work elsewhere included a finding that the Respondents had sometimes asked the Claimant to work at short notice. He went on to say ‘On balance I believe both the management committees’ action and AT’s behaviour show a mutuality of obligation consistent with casual work rather than of substantive employment’. He recommended that the decision to dismiss the Claimant should not be upheld. He suggested that the Committee ‘re-engage the Claimant as a casual worker, ensuring the terms of his role, responsibilities and limits to his authority are clearly communicated and documented’. He went on to recommend that the Claimant was given a final written warning.

[44]I find that the Executive Committee consulted with the Central Working Committee and decided to implement Christopher Edgley’s recommendation. In the letter of 11 March 2021 the Claimant was told that ‘we have decided to re-engage you on the same terms as a casual (Zero-Hour Contract) worker’. The Claimant was also given a final written warning. At the foot of the letter the Claimant was told: The new decision is that we will: Re-engage you as a casual (zero hours contract) worker, only to be invited under explicit instructions of the VHP Ilford Mandir Chairman, to offer your priestly services, as and when required. As of now the Mandir is closed under the Covid-19 restrictions, your services are not presently required.

[45]As of 11 March 2021 the Mandir was closed due to the renewed covid restrictions which were gradually relaxed during 2021. Employment Status - The law to be applied

[46]Section 230 of the Employment Rights Act 1996 provides definitions of the terms used in the Act. The material parts say: s 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 of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly. (4)….(6)

[47]The definition of ‘employee’ in Section 230 (1) of the Employment Rights Act 1996 turns on the meaning of the phrase ‘contract of service’ in sub section 230(3). That phrase is not defined but it has been understood as incorporating common law concepts of ‘master’ and ‘servant’ and the distinction between a ‘contract of service’ and a ‘contract for services’.

[48]In Market Investigations Ltd v Minister of Social Security 1969 2 QB 173, QBD, Mr Justice Cooke said: ‘the fundamental test to be applied is this: “Is the person who has engaged himself to perform these services performing them as a person in business on his own account?” If the answer to that question is “yes”, then the contract is a contract for services. If the answer is “no”, then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task’

[49]The approach of Cooke J was considered ‘useful’ but not ‘fundamental’ in Nethermere (St Neots) Ltd v Gardiner and anor

1984 ICR 612

, CA. The privy Council in Lee Ting Sang v Chung Chi-Keung and anor

1990 ICR 409

, PC accepted that there was no single test for the existence of a contract of employment but said that the matter had never been put better than by Cooke J.

[50]In Ready-Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2 QB 497

it was said by Mckenna J that ‘A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.

(iii) The other provisions of the contract are consistent with its being a contract of service.’

[51]The approach of McKenna J has most recently been endorsed in the Supreme Court by Lord Clarke in Autoclenz Ltd v Belcher and ors

2011 ICR 1157

, SC where at paragraph 18 he described the passage above as the classic test for a contract of employment. He went on to add (at paragraph 19): ‘Three further propositions are not I think contentious: i) As Stephenson LJ put it in Nethermere (St Neots) Ltd v Gardiner

[1984] ICR 612

, 623, "There must … be an irreducible minimum of obligation on each side to create a contract of service". ii) If a genuine right of substitution exists, this negates an obligation to perform work personally and is inconsistent with employee status: Express & Echo Publications Ltd v Tanton ("Tanton")

[1999] ICR 693

, per Peter Gibson LJ at p 699G. iii) If a contractual right, as for example a right to substitute, exists, it does not matter that it is not used. It does not follow from the fact that a term is not enforced that such a term is not part of the agreement: see eg Tanton at p 697G.’

[52]In Carmichael v National Power plc

2000 IRLR 43

the House of Lords confirmed that there is an "irreducible minimum" of mutual obligation necessary to create a contract of employment. Mutuality of obligation is said to be the obligation of the putative employer to provide work and the obligation of the putative employee to accept it. Unless there is mutuality of obligation and a sufficient degree of control, there cannot be a contract of employment.

[53]The requirement that the work be performed personally by the putative employee is also a necessary precondition in the statutory definition of worker. It is not necessary that the work is done exclusively by the putative employee/worker a limited power to delegate will not necessarily defeat employee or worker status. The circumstances where a power to delegate might be fatal to employment or worker status were fully explored in Pimlico Plumbers Ltd v Smith both in the Court of Appeal

[2017] ICR 657

and in the Supreme Court

[2018] ICR 1511

. In both courts it was held that a limited right to delegate would not necessarily be inconsistent with the dominant purpose of the contract being the provision of services personally. There is a useful discussion of the boundaries of the right to delegate in the Court of Appeal judgment of Etherton MR at paragraph 83 where, having reviewed the authorities, he said: ‘In the light of the cases and the language and objects of the relevant legislation, I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.’

[54]The requirement for control will not be met merely because the putative employer can terminate the contract something more is required. It is necessary to demonstrate that the employer can, under the contract of employment, direct the employee in what he did see Wright v Aegis Defence Services (BVI) Ltd and ors EAT 0173/17. That is distinct from showing that the employer controls the way that the employee does the work. Even a complete absence of day to day control is irrelevant if ultimately the employer retains the contractual power to direct what work should be done see White and anor v Troutbeck SA

2013 IRLR 949

, CA.

[55]There can be no exhaustive list of the features of any agreement that inform the question of whether it is or is not a contract of employment. The following might be relevant: 55.1. Who bears the financial risk of the arrangement? 55.2. Whether the remuneration is fixed or varies depending on results? 55.3. Who provides the facilities tools and equipment necessary for the performance of the work. 55.4. Whether the agreement provides for benefits such as sick pay, holiday pay and pensions? With the caveat that the employer cannot rely upon his own breaches of statutory duty to avoid an employment relationship Forest Mere Lodges Ltd EAT0426/06 55.5. Who pays any income tax is a relevant but not determinative factor Apex Masonry Contractors Ltd v Everritt EAT 0482/04 55.6. The label the parties have put on their relationship is also relevant but not determinative but may be of increasing importance in a finely balanced case – see Massey v Crown Life Insurance Co

1978 ICR 590

, CA. The fact that a party has adopted one label does not mean that they cannot later retreat from that position - Young and Woods Ltd v West

1980 IRLR201

, CA and Smith v Goodmayes Insulations Ltd EAT55/97 S 55.7. What degree is the putative employee integrated into the business?

[56]A checklist approach is not appropriate. In Hall (Inspector of Taxes) v Lorimer

1994 ICR 218

, CA, the Court of Appeal upheld the decision of Mr Justice Mummery in the High Court (reported at

1992 ICR 739

), who had said: ‘this is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail… Not all details are of equal weight or importance in any given situation.’

[57]The assessment of the matters above requires an examination of what was or was not agreed in Autoclenz v Belcher

[2011] UKSC 41

, a was concerned with a complex written agreement the Supreme Court which the employees contended did not reflect the true agreement. Lord Clarke said: ‘the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description.’ Discussion and Conclusions Was the Claimant working under a contract of employment?

Discussion and Conclusions

[58]I need to address the three questions identified in Ready-Mixed Concrete. The first of these is the question of whether the Claimant agreed to provide his services personally. There is little difficulty with that. There was no suggestion that the Claimant was not required to attend personally when he was asked to work. The Respondents have conceded that the Claimant is a worker. That status too requires that the contract include the provision of services personally. I am satisfied that the Claimant had agreed to provide any priestly services personally.

[59]It is necessary for me to decide what was agreed between the parties about the quantity of work that would be offered to the Claimant and the associated question of whether the Claimant was obliged to accept some or all of the work that was offered. Unless there was at least an obligation to offer some work and a corresponding obligation to accept some work then there would not be the irreducible mutuality of obligations sufficient to found a contract of employment (or at least a contract of employment that existed in gaps between the work done – see Carmichael v National Power plc. I need to make further findings of fact to determine what was agreed (if anything).

[60]I have found above that from 2016 to 2018 the Claimant worked for around 40 hours. In 2018 an additional priest was recruited and the Claimant was then asked to work for 15 hours per week. It is clear that when rostering the Claimant’s hours he was asked to give his availability. During the first lockdown the Claimant was only asked to perform prayers behind closed doors (but his pay did not reduce). When the number of priests reduced and the Mandir reopened the Claimant’s hours were increased. On two occasions the Claimant told the Committee that he was taking leave to work elsewhere. The response of the Committee was to discipline him.

[61]I find that the agreement between the parties was that the Claimant would be one of the priests at the Mandir and that he would be offered hours after a discussion with a member of the Committee as to his preferred times of working. The number of hours that the parties expected varied depending on how many other priests were engaged by the Mandir and turned in part on the decisions of the Committee as to when the Mandir would be open. I find that once the rota was fixed the Claimant was expected to work the hours that had been agreed. I find that during the currency of the arrangement neither party contemplated a situation where the Claimant might be offered no work at all. I find that the true agreement was that if there was work available then at least a fair proportion of that work, taking into account the availability of other priests, had to be offered to the Claimant. Once offered, absent ill health or similar, the Claimant was obliged to do the work.

[62]I find that this is sufficient to satisfy the requirements identified in Carmichael v National Power plc.

[63]The next question identified in Ready-Mixed Concrete is the issue of whether the Respondent had sufficient control that this could be a relationship of master and servant.

[64]It is common ground that the Respondents did not direct the Claimant in how to perform his spiritual duties. Whether they might have objected if the Claimant had departed from any orthodox Hindu teachings is untested because there is no suggestion that he did.

[65]The Respondents did direct the days and times that the Temple would open. They did decide which festivals would or would not be conducted within the temple. As I have found above they decided how many priests would be engaged with a consequential effect on the hours of work that would be offered to the Claimant. They provided the Claimant with keys and directed him to open and close the Temple.

[66]I find that some of the duties set out in the proposed employment contract reflected the terms that had been agreed. The Claimant was expected to be present at the Temple. He was expected to wear appropriate dress. He was expected not to use his mobile telephone during prayers. He was expected to keep the dais clean and tidy.

[67]There were some aspects of the Claimant’s work-life that the Respondents did not control. The Claimant successfully countered the suggestion that he needed to account to the Temple for a share of any Dakshina. He also declined to agree to account for any priestly activities he undertook outside his working hours.

[68]I consider it important that the Respondents decided on how much the Claimant would be paid and that their decisions dictated how much work might be available for the Claimant to do. Ultimately they directed when the Claimant would work and how much he would get paid.

[69]I remind myself that ‘control’ is only one of the matters I need to look at to decide whether this arrangement was a contract of employment. However, without a sufficient degree of control the arrangement would not amount to a contract of employment. In my view it is not significant that the Respondents did not direct the Claimant as to the performance of his spiritual duties. An absence of day to day control is not fatal to a contract of employment - White and anor v Troutbeck. I am satisfied that there was a sufficient degree of control over the Claimant’s work that this might amount to a contract of employment.

[70]I turn then to the third question in Ready-Mixed Concrete.

[71]I consider that the following matters (terms) point towards the existence of a contract of employment: 71.1. the Claimant was appointed as a priest of this particular Mandir. He was regarded as ‘one of the permanent priests’ in contract to a volunteer or guest. 71.2. the Claimant worked for fixed hours on days that were agreed; and 71.3. he worked at the Respondents’ premises using its facilities; and 71.4. he worked for a rate of remuneration that was set by the Respondent and not by him; and 71.5. The Claimant bore no financial risk but only in the sense that he would be paid whether or not he completed any particular amount of work.

[72]The label placed on the arrangement by the parties is of some assistance. I find that in 2018 the label that was placed on the relationship by Darshan Chodra was that the Claimant was an employee. That is what he said in his e-mail protesting about the fact that the Claimant was told that he was no longer required. The Claimant was then offered a formal contract of employment. Mr McCombie asked me to find that the Claimant’s reasons for rejecting that contract were consistent with him asserting that he was self employed and not an employee. I am not persuaded by that. The Claimant did object to clauses requiring him to be available for festivals but his objections were focused on the need for reasonable notice to changes in his working hours and, unsurprisingly, a suggestion that if he did additional hours he should be paid. The Claimant’s objection to sharing Dakshina is not necessarily inconsistent with him being employed. There are other industries where gratuities are regarded as the property of employees. An objection to having to account for work done outside working hours is also not inconsistent with employment. I have regard to the fact that the Claimant used the phrase ‘Casual/Annual leave’ when he unilaterally changed his working hours in October 2020. I find that the Claimant knew that the respondents would be annoyed by his unilateral decision. The events took place against a background of disagreement about decisions about worship at the Mandir. There is some ambiguity about the Claimant’s description of the leave. There is nothing in the reference to Annual Leave inconsistent with the Claimant being an employee. The Claimant says that in India the phrase casual leave is used to describe short periods of leave. I do not accept that the Claimant, with his knowledge of UK law was using the phrase in that sense. I find that the Claimant used the expression ‘casual’ because he wanted to get his way. In other correspondence the Claimant described himself as an employee.

[73]I has some evidence that a new Chair of the Executive Committee had directed a member of the committee, with a legal background, to regularise the status of any employees. I consider that is consistent with an effort to ensure compliance with the requirements of the Charity Commission. It does not really help me with the status of the Claimant. No efforts were made to formalise his arrangements other than when he was offered a contract of employment in 2018.

[74]It appears that neither the Claimant nor the Respondents have ever accounted for any tax or national insurance in respect of the Claimant’s income or Dakshinas. That reflects badly on them all but does not tell me a great deal about the Claimant’s status.

[75]I find that the Claimant was permitted to and occasionally did work elsewhere as a priest. He has not told me how much he earned from that work. I am satisfied that that work was, other on the two occasions in October 2020, conducted in the Claimant’s own time.

[76]I consider the sums that the Claimant was paid and agreed to accept are somewhat remarkable. They are clearly less than the National Minimum wage. The Claimant knew that. I had given some thought to whether the parties regarded the payment not as wages but as a honorarium paid to a volunteer. I have discounted that. The Respondents have conceded that the Claimant was a worker. That is inconsistent with that suggestion.

[77]I have considered whether there is any evidence that the teachings of the Hindu faith point towards or away from a contract of employment. There is one aspect of the arrangement that might suggest that there is no contract of employment which is the tradition of the faithful paying the priest Dahkshina as compensation for services. Had that been the entirely of the Claimant’s income I find that that would be inconsistent with a contract of employment. Here the Dakshinas formed only a part of the Claimant’s income.

[78]There were no arrangements for holidays or sick pay. That is of less weight when the Respondents have failed to comply with a number of employment law obligations applicable to workers or employees.

[79]Standing back from my findings of fact and looking at the entire picture I am satisfied that the contract in this case is consistent with the existence of a contract of employment. The Claimant worked regularly for the Respondents at times of their choosing and at rates of pay set by them. Whilst there are matters that point away from the existence of a contract of employment the overall picture is one of employment. I am satisfied that was the case. The vanishing dismissal point

[80]It is trite that where an employee exercises a contractual right of appeal against a dismissal and a decision is taken to allow that appeal then the employee cannot rely on the original dismissal for the purposes of bringing an unfair dismissal claim - Roberts v West Coast Trains Ltd

[2004] IRLR 788

. The effect of the successful appeal is to resurrect the contract. The following propositions emerge from the cases decided on this point: 80.1. That where an employer allows a contractually permitted sanction short of dismissal the employee cannot elect whether to accept that sanction or not and there is no termination of the original contract by reason of the sanction - Roberts v West Coast Trains Ltd 80.2. The dismissal will vanish even where the employer takes no steps to implement the decision (or even refuses to do so) McMaster v Antrim Borough Council

[2011] IRLR 235

, NICA; Ladbrokes Betting & Gaming Ltd v Ally

UKEAT/0260/06

80.3. That the decision on appeal need not even be communicated to the employee in order for the decision to have the effect of restoring the contract of employment. Its effect is ‘automatic’. – Salmon v Castlebeck Care (Teesdale) Ltd

[2015] IRLR 189

. 80.4. It does not matter that the contractual appeal process is silent as to the effect of an appeal and does not provide expressly for the restoration of the contract if the appeal is successful. Any contractual right of appeal will be construed to have that effect unless contrary provisions are found in the contract Patel v Folkstone Nursing Home Limited

[2018] IRLR 924

. 80.5. If there are contrary provisions in the contract the effect of a successful appeal may be negated.

[81]The question of whether it is necessary for the appeal process to be contractual is not as clear as it could be. In the recent case of Marangakis v Iceland Frozen Foods Limited

[2023] IRLR 140

the employee appealed a decision that her dismissal had vanished because she said she had made it clear that she did not want to be reinstated. The Employment Appeal Tribunal dismissed the appeal finding that, as the Claimant had not clearly withdrawn from the appeal process, the dismissal had vanished. The appeal proceeded on the assumption that the appeal process was contractual, a concession made by both sides. It is recorded that Counsel for both parties regarded the case of London Probation Board v Kirkpatrick

[2005] ICR 965

as having decided that the principle of a vanishing dismissal would apply in the same way to a noncontractual appeal process.

[82]In Kirkpatrick the appeal process was formal and the EAT held that it was contractual. However the EAT did suggest that the principle was not dependant on the contractual position but was ‘one of general application’.

[83]I have read with care the authorities cited to me. In each case the appeal process was contractual. To address the question of whether the concept of a vanishing dismissal applies regardless of whether any appeal process is contractual I need to consider the legal basis for the concept. In my view it is clear that the basis is that of contract law. A dismissal cannot be unilaterally rescinded. The dismissal when a contractual appeal succeeds vanishes because that is what the parties have agreed will happen. The parties are bound by the terms of their agreement which will govern the effect of a successful appeal. I cannot see any contrary analysis in any of the cases cited to me.

[84]I have come to the conclusion that in order for a dismissal to vanish the parties must have reached an agreement that that will be the case. If there is an contractual appeal process that will ordinarily be straightforward. The issue that is unresolved is when there is a non-contractual appeal process. What then?

[85]Kirkpatrick provides persuasive authority for the proposition that the concept of the vanishing dismissal is of general application because it meets with the common sense approach to allowing both employees and employers to put matters right – see West Midlands Co-operative Society Ltd v Tipton

[1986] ICR 192

. How then does that fit into the contractual underpinnings of the decided cases?

[86]I find that the answer to that is that whilst the right to appeal may or may not be contractual, in a non-contractual appeal process it remains possible for the parties to agree that if an appeal is allowed the result will be that the original dismissal will fall away. In other words whilst the process itself is not contractual the parties can agree to be bound by the outcome if the process is seen through to its conclusion.

[87]I consider that that position is consistent with general principles of contract law. The proposal to conduct an appeal process (from whichever side) constitutes an offer which may be expressly accepted expressly o by conduct. The consideration is the opportunity to correct any errors made at first instance. That applies to both parties.

[88]This analysis does not deal with the issue of continuity of employment. Where there is an express contractual appeal process the position is straightforward. The contract persists (for limited purposes) until the appeal is determined. Continuity would be preserved under Section 112(1) or Section 112(3)(c) of the Employment Rights Act 1996. In Kirkpatrick it was held primarily that continuity of employment could be bridged by a retrospective arrangement but alternatively that in that case the sophisticated appeals process amounted to an arrangement which was in place before the dismissal. In Welton v Deluxe Retail Ltd

[2013] IRLR 166

the EAT disapproved the suggestion that Section 112(3)(c) permitted continuity of employment to be preserved by an ex post facto arrangement. I consider that that decision is binding on me.

[89]The conclusions I reach as to the law are: 89.1. That the legal basis for the vanishing dismissal concept are based on contract law: and 89.2. That it is possible for parties to agree to be contractually bound by the outcome of an appeal even where the process is not of itself contractual; but 89.3. For continuity of employment to be preserved the employee would need to establish that the custom or arrangement (being the appeal process) was in place before continuity was broken.

[90]In order to apply that law to the present case it is necessary for me to consider whether there was an express or implied contractual appeal procedure.

[91]The contract proffered to the Claimant did include an appeal process. The process is included in the contract of employment and, had it been agreed to it would in my opinion be binding. I do not think that the contract of 2018 was ever accepted by the Claimant. He made his objections clear. The silence of the Respondents is not in my view sufficient to amount to acceptance of the Claimant’s proposed revised terms.

[92]Does that mean that the offer of a contractual appeal process falls away? I find that it does. There could be no acceptance by conduct of some parts of the contract and not others. I find that the appeal process set out in that document did not become a term of the contract of employment.

[93]I do not find that I can imply a contractual appeal process. Many contracts of employment do not include a contractual appeal process for good reasons. An employer may not wish to be held to a particular process and risk a claim as a result. It is simply not necessary to imply a contractual right of appeal.

[94]Can I find that there was an existing ‘arrangement’ that the Claimant would be entitled to appeal any decision that he was dissatisfied with carrying with it the fact that he would be regarded as continuing in employment until that process was completed? I have not found this an easy matter. I have considered whether the requirement in the constitution of the VHP for the dismissal of a priest to be referred to the Central Working Committee is sufficient to found an ‘arrangement’. I do not think it does. It is not a right of appeal at all and there is nothing that would suggest that the Claimant might be regarded as continuing in his employment until any determination by that committee.

[95]I have come to the conclusion that where, as here, the Claimant’s continuity of employment was broken before any arrangements were put in place to hear an appeal continuity of employment has not been preserved. It follows in my view that the original termination of the contract of employment takes effect. It is not possible for continuity to be preserved by retrospective agreement between the parties. They might have agreed that the Claimant would be reinstated for contractual purposes but for statutory purposes he was dismissed.

[96]I have therefore concluded that the dismissal of 17 November 2020 takes effect for the purposes of the unfair dismissal claim.

[97]In case I am wrong about that I shall decide whether there was any subsequent dismissal. A further dismissal?

[98]In British and Beningtons Ltd v North Western Cachar Tea Co Ltd

[1923] AC 48

, the House of Lords held that there can be be a termination of the original contract in circumstances where the employer unilaterally imposes new terms, but the change must be such that the new agreement is entirely inconsistent with the old, or at least must go to the very root of the old agreement. In Hogg v Dover College

[1990] ICR 39

a letter imposing a change of terms from a full time to a part time role was held to be a dismissal.

[99]In this case the Respondents wrote to the Claimant and told him that he would only be offered work at their absolute discretion (a zero hours contract). Their letter of 11 March 2021 made it clear that the offer was not for a contract of employment at all. What was proposed was an arrangement where the Claimant would have worker status.

[100]I have considered whether such a letter is capable of amounting to a dismissal. I find that the case is on all fours with that of Hogg v Dover College. I find that the substitution of a contract for services for a contract of employment went to the heart of the existing contract. As is clear from Hogg v Dover College a letter informing an employee that the employer has imposed terms inconsistent with the existing contract can, and I find does, amount to an express dismissal. Was the dismissal for a potentially fair reason? Was it fair?

[101]Given the concession made by the Respondent that any dismissal on 17 November 2020 was unfair. These issues relate only to my alternative finding that if the dismissal of 17 November 2020 vanished upon the success of his appeal there was a subsequent dismissal when new terms were imposed. Consideration of these issues is predicated on the assumption that imposing terms unilaterally as an outcome of an appeal is capable of making the original dismissal vanish (which I have found it was not). The following analysis is therefore probably unnecessary.

[102]I shall put to one side the question of whether the dismissal was potentially fair. I shall assume that the fact that the Respondents were told by Christopher Edgley to offer the Claimant a contract which guaranteed no work and stated that he was not an employee might amount to some other substantial reason if the belief was genuinely held that that amounted to a re-engagement on the same terms as had been in place. That may be a generous assumption.

[103]Turning to the question of whether any dismissal was actually fair I do not accept that the Respondents had any reasonable belief in their suggestion that they had a contractual right to withhold all work from the Claimant. The Claimant had been offered and had undertaken work for several years on a regular basis. The decision that was taken was without any form of consultation. There was no attempt to meet with the Claimant and seek agreement or explain the rationale for the decision. Assuming that the Respondents could establish that there was a potentially fair reason for the dismissal I find that it was unfair.

[104]It follows that I shall deal with the issue of remedy flowing from the dismissal that, on my primary findings, I took effect on 17 November 2020. Remedy Reasons

[105]It was necessary that I heard additional evidence to determine in particular the question of whether there was what is usually described as any contributory conduct. I am bound by my previous findings of fact and decisions as to the terms of the contract of employment when deciding what loss was sustained by the Claimant as a consequence of his dismissal.

[106]I shall deal with each issue in turn setting out my findings of fact relevant to each question as I deal with each issue. Re-instatement is the primary remedy for unfair dismissal followed by re-engagement. It is necessary that I consider whether to grant either of those remedies first. However, the question of whether I should do so needs to be informed by my findings on the issue of contributary fault. Whilst that issue would not necessarily arise if I ordered re-instatement or re-engagement it is sensible to deal with it first. Contributary conduct

[107]The basic award or a compensatory award may be reduced if the tribunal find as a fact that the conduct of the Claimant before the dismissal justifies reducing the award.

[108]In this case the Respondents invite me to make findings about the Claimant’s conduct in 3 particular respects. These are: 108.1. a suggestion that the Claimant refused to cooperate with the Respondents in obtaining a Covid test and that he defied an instruction not to attend the Mandir before obtaining a negative test; and 108.2. that he attended the Mandir and took a bunch of keys when he had been asked not to attend; and 108.3. that he had failed to take reasonable steps to prevent the congregation singing prayers and gonging a bell giving rise to an increased risk of covid infection.

[109]In order to determine these issues I heard evidence from the Claimant and from Dr Datta. I make the following findings:

[110]In October and November 2020 was a resurgence of Covid infections in East London which was of particular concern to the South Asian community who had suffered a disproportionate degree of loss.

[111]That the Respondents had sought advice during the pandemic from Dr Datta who a public health professional to advise them on the necessary precautions to keep the congregation safe when the Mandir was open. I find that the Respondents acted reasonably in treating Dr Datta as an expert in these matters.

[112]After the first lockdown the Respondents circulated instructions which included an instruction that prayers were not to be sung in the temple nor was a ceremonial bell to be picked up and struck by worshippers (the phrase ‘gonged was used during the hearing’).

[113]It is clear from the correspondence that I have seen that on occasions the Claimant raised reasonable concerns about Covid safety in the Mandir. That is entirely to his credit. However, it is also clear that he on occasions questioned the directions that he was given. In particular it is clear from correspondence written by Dr Datta that the Claimant had questioned the authority of the decision makers suggesting that it was important that matters were dealt with by a properly constituted committee. In reality the day-to-day decision-making about what was appropriate had been quite reasonably delegated to Dr Datta.

[114]One example of the Claimant pushing back against the decisions that were taken was when in October 2020 when a decision was taken not to celebrate a Hindu festival the Claimant was of the view that this was contrary to the requirements of the Hindu faith and he informed the Respondent that he was unable to work and celebrated the festival elsewhere.

[115]A further example is when in November 2020 the Claimant had been instructed that the temple was closed he unilaterally decided on 5 November 2020 to attend the Mandir to perform religious rituals Pooja/Aarti because he claimed to be respecting the existing order of the President of the VHP.

[116]Against that background I accept the evidence given by Dr Datta that on at least one occasion when she attended the Mandir she found that the devotees were singing Aarti contrary to her instructions. That the Claimant had failed to announce at the outset that they should not do so nor did he intervene when the singing started. It was suggested on behalf of the Claimant that it was unreasonable to expect the Claimant to intervene during prayers. I disagree. This was a public health emergency and the Respondents were entitled to expect the Claimant to ensure that the Devotees were given and followed clear instructions. I further accept that when this was raised with the Claimant he suggested that it was not his responsibility.

[117]On 29 October 2020 the Claimant sent an email to the Chairman Mr Khertola in which he said ‘I am not feeling well due to suffering from flu and am not able to perform my temples duty. Therefore, please sanction me medical leave from today 29/10/20 2 Sunday 01/11/20 evening accordingly’. I find that the reference to flu symptoms would have caused any reasonable person to be concerned that there was a risk of a Covid infection. The existence of flu like symptoms were from the earliest days of the pandemic thought to be indicative of a Covid infection

[118]What followed was a series of emails between the Claimant and Dr Datta. Dr Datta told the Claimant that he should undergo a Covid test. I find that that was unremarkable. The Claimant then suggested that he was ineligible for a test because he could not say at that stage that he had a fever. He said that he was simply tired having done a lot of work in the temple. Dr Datta maintained her position that the Claimant should have a test before returning to work in the temple. The Claimant protested and said that he did not pass the criteria on the NHS website because he did not at that stage have a fever. What was not clear was why he had described he had flulike symptoms when he sent his First email. I find that Dr Datta acted perfectly reasonably in treating any alleged reduction of symptoms cautiously. The Claimant then took the position that if the Respondent wanted him to have a Covid test they should pay for it. Dr Datta informed the Claimant that he should get a note from his GP saying that he was unlikely to pose a risk of coronavirus to the devotees. I find it is implicit in that correspondence that the Claimant was instructed that he should not attend the temple until the Respondents were satisfied that he did not have a Covid infection.

[119]The Claimant did attend the temple during the period where he would otherwise be self-isolating. I find that he knew that he ought not to have done that and did so in defiance of proper concerns raised by Dr Datta. Discussion and application of the law

[120]Sub-section 122(2) of the Employment Rights Act 1996 provides that a basic award may be reduced: ‘(2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.’

[121]Sub-section 123(6) of the Employment Rights Act 1996 has a similar provision whereby the compensatory award might be reduced: (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

[122]The proper approach to the application of these provisions was explained by Langstaff P in Steen v ASP Packaging Ltd

[2014] ICR 56

where he said: ‘11 The application of those sections to any question of compensation arising from a finding of unfair dismissal requires a tribunal to address the following:(1) it must identify the conduct which is said to give rise to possible contributory fault;

(2) having identified that it must ask whether that conduct is blameworthy. 12 It should be noted in answering this second question that in unfair dismissal cases the focus of a tribunal on questions of liability is on the employer’s behaviour, centrally its reasons for dismissal. It does not matter if the employer dismissed an employee for something which the employee did not actually do, so long as the employer genuinely thought that he had done so. But the inquiry in respect of contributory fault is a different one. The question is not what the employer did. The focus is on what the employee did. It is not on the employer’s assessment of how wrongful that act was; the answer depends on what the employee actually did or failed to do, which is a matter of fact for the employment tribunal to establish and which, once established, it is for the employment tribunal to evaluate. The tribunal is not constrained in the least when doing so by the employer’s view of the wrongfulness of the conduct. It is the tribunal’s view alone which matters. 13

(3) The tribunal must ask for the purposes of section 123(6) if the conduct which it has identified and which it considers blameworthy caused or contributed to the dismissal to any extent. If it did not do so to any extent, there can be no reduction on the footing of section 123(6), no matter how blameworthy in other respects the tribunal might think the conduct to have been. If it did cause or contribute to the dismissal to any extent, then the tribunal moves to the next question, (4). 14 This, question (4), is to what extent the award should be reduced and to what extent it is just and equitable to reduce it. A separate question arises in respect of section 122 where the tribunal has to ask whether it is just and equitable to reduce the amount of the basic award to any extent. It is very likely, but not inevitable, that what a tribunal concludes is a just and equitable basis for the reduction of the compensatory award will also have the same or a similar effect in respect of the basic award, but it does not have to do so.’

[123]I am required to consider whether any of the actions of the Claimant were culpable or blameworthy. I am not at this stage deciding whether they were breach of contract or whether they would by themselves have justified dismissal. It is my findings that need to be applied and not what the Respondents believed.

[124]I have some considerable sympathy with the Claimant being generally exasperated with the actions of the Respondents. He had pointed out that he was entitled to the national minimum wage and I have no doubt he was frustrated by the refusal of the Respondents to recognise that.

[125]Having said that, the Claimant appears to have shown some real resistance to the instructions that he was given in relation to Covid safety. I do not suggest for a moment that he was not concerned about Covid and give him credit for his own suggestions. However I do find that he had strong opinions about what was, and was not appropriate, particularly from a religious perspective.

[126]I find that he did not implement the instructions on at least one occasion to take reasonable steps to prevent devotees singing and going the bell. I find that he could have reasonably done so but thought it religiously inappropriate. I also find that he was argumentative when he was questioned about this.

[127]I consider the Claimant acted unreasonably in refusing to accept what were the entirely reasonable concerns of Dr Datta that, having reported flu symptoms, he should have a Covid test or a note from his GP before returning to work. It was fair for him to suggest that if the Respondent wanted him to have that test it should have been paid for. However, what he did was to openly defy the instruction and attended the temple when he had specifically been told not to. What is more, the whole tone of his correspondence was unnecessarily argumentative.

[128]If I were to categorise the Claimant’s conduct I would say that he was stubborn, dismissive and argumentative in response to being told what to do by Dr Datta.

[129]I need to weigh up the gravity of this conduct as a whole. Mr McCombie suggest that extremely grave. He relies upon this to support the Respondents position that it was entitled to summarily dismissed the Claimant.

[130]I find that these events came about after the relationship between the parties had already become extremely difficult. Dr Datta unfortunately was a victim of some crossfire. I find that the Claimant had a propensity to be somewhat arrogant in his dealings with the committee. At regrettably the committee at times was itself highhanded.

[131]I find that the conduct of the Claimant I have set out above was culpable and blameworthy. Two wrongs do not make a right. His attitude to Covid safety does demonstrate an attitude of unnecessarily questioning reasonable decisions. That is in my view culpable and blameworthy.

[132]I find that this conduct did contribute to the decision to dismiss the Claimant. The Claimant has suggested that the reasons set out in the dismissal letter of 17 November 2020 are entirely false. I am not persuaded by that. I consider it likely that the history between the parties played some part in the sensitivity of the committee to the Claimant’s rebellious nature but conclude that the actions which they had complained of in the dismissal letter did play a significant part in their reasoning. In particular I find that the Claimant’s attitude to the instructions given by Dr Datta played a significant part.

[133]I need to consider the extent to which it might be just and equitable to reduce the Basic or Compensatory awards. That is conventionally done by applying a percentage reduction. What is required is a balancing act between any culpable conduct of the Claimant and the actions of the Respondent in unfairly dismissing him.

[134]I find myself in agreement with Christopher Edgley that the conduct complained of by the Respondents was quite clearly not conduct which an employer could reasonably dismiss the Claimant for a first breach of discipline. It was sufficiently serious in my view to justify a final written warning. I take that view because it was clear that the Claimant was questioning the authority of his employer.

[135]I find that it would be just and equitable to reduce the basic and compensatory awards by 40%. Reinstatement or re-engagement

[136]I have reminded myself of the proper approach to sections 113 to 117 of the Employment Rights Act 1996. I remind myself that reinstatement is the primary remedy for unfair dismissal and must be considered before any consideration of whether compensation should be awarded. As such it is the default remedy. It is however a discretionary remedy. The scope of the discretion requires me to take account of the matters set out in section hundred and 116(1). These are:(a) whether the complainant wishes to be reinstated,

(b) whether it is practicable for the employer to comply with an order for reinstatement, and

(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.

[137]The same considerations apply to an order for re-engagement.

[138]In the present case the Claimant has indicated a wish to be reinstated or reengaged. He has explained that he wishes to continue to serve the devotees in the community.

[139]The Respondents resist any order. Their essential position is that there is a complete breakdown between the Claimant and the committee who would need to direct his work.

[140]In deciding whether to make an order for reinstatement or re-engagement I do not have to decide once and for all whether the order would be reasonably practicable for the Respondents to comply with. At this stage I only need to have regard to that issue - Timex Corpn v Thomson

[1981] IRLR 522

, EAT.

[141]I have regard to the following additional matters of fact .The Claimant issued High Court proceedings claiming defamation and breach of confidence. He named a number of committee members of the Ilford committee the executive committee at and members of the committee of the parent organisation as defendants. Those proceedings were dismissed with a reasoned judgment. The principal reason for the dismissal was that the proceedings had been commenced outside the relevant limitation period by one day. However, the factors in the exercise of a discretion as to whether to extend limitation which were considered by the High Court judge show that she regarded the Claimant’s claim as being abusive and with little reasonable prospect of success. It was a necessary element of the Claimants defamation claim that he asserted malice in order to defeat a defence of qualified privilege. When the High Court proceedings were dismissed there was a costs order made a £41,000. The Claimant to this day does not accept that the litigation is at an end and he has not satisfied the costs order against him. Amongst the people that the Claimant had sued in the High Court were people who were essentially on his side and thought he should not have been dismissed. In a somewhat bizarre move it appears that some of those people including the Claimant’s own brother have applied to set aside the dismissal of the claim against them. The Claimant has made applications to the Court of Appeal none have at this point in time been successful.

[142]As part of these proceedings the Claimant in his witness statement has alleged a conspiracy against him by the committee in Ilford. He has suggested that Dr Datta instructed him to lie to the NHS. These are strong allegations.

[143]I have found that the Claimant was, in part, responsible for the actions that led to his dismissal. Whilst I have not concluded he was wholly responsible by any means the basis of my finding is that there was conduct by him which evidenced what had become a very poor working relationship. He contributed to that.

[144]I need to have regard to whether if I may order for reinstatement or reengagement it will be practicable for the Respondents to comply with it (although as explained above it is not at this stage determinative. I should not take at face value an assertion that there is a breakdown in relationships. That might allow the Respondent a simple veto of a statutory remedy. An order may not be practicable if there remains a continuing breakdown of trust and confidence between the parties: Wood Group Heavy Industrial Turbines Ltd v Crossan

[1998] IRLR 680

, EAT.

[145]I am satisfied that there is such a breakdown in trust and confidence that expecting the parties to work together in the future is utterly unrealistic. The relationship has been irrevocably destroyed by the outcome of the High Court proceedings and the allegations made within them.

[146]Having regard to the issue of reasonable practicality and having regard to my findings in respect of contributary conduct in the exercise of my discretion I decline to make any order for reinstatement or re-engagement. The loss sustained by the Claimant

[147]In calculating the compensatory award I am required to ascertain what the Claimant would have received by way of remuneration, whether contractual or not had he not been dismissed by the Respondents. I should assume that the Respondents would pay the Claimant no less than the National Minimum Wage.

[148]The following facts are relevant to that decision: 148.1. I have previously found that the contract of employment between the parties did not include a guarantee of any particular hours of work except that it was agreed that the Claimant would be offered a fair share of such work as was available having regard to the number of priests employed by the Respondents. 148.2. During the period following the reopening of the Mandir until the Claimant’s dismissal I find that the Claimant worked for 35 hours per week. 148.3. As a consequence of the Covid pandemic the Mandir was closed for periods of time between 17 November 2020, the date of the Claimant’s dismissal and 29 June 2021 when the Mandir reopened. 148.4. When the Mandir was closed during the first lock down the Claimant was asked to perform devotional duties behind closed doors. His payment at that time of £300 per week was not reduced. 148.5. At some point in 2021 an additional priest was recruited. I am not told whether they worked at all whilst the Mandir was closed. I am unable to make a specific finding about that.

[149]The Claimant invites me to find that if he had not been dismissed he would have continued to be expected to work for 35 hours per week. The Respondents say that that is unrealistic but accepts that the Claimant may have been asked to work as many as 15 hours per week.

[150]I have accepted that as a matter of contract the Respondents had the right to reduce the Claimant’s hours if the need for his services had correspondingly reduced. To emphasise the rationale for that finding in my liability decision I have taken account of the fact that the Ilford branch of the Respondent was expected to be self-sustaining and principally relied upon charitable donations. The hours the Mandir was open were varied depending on the resources available and the demand by the devotees.

[151]I take judicial notice of the fact that if there was a reduced need for employees during the Covid pandemic by November 2020 central government had put in place the furlough scheme and it would have been possible for the Respondents to have placed the Claimant on furlough or flexible furlough when that scheme was in place. However there was no right to be placed on furlough and it was open to an employer with a contractual right to reduce hours to simply exercise that right rather than placing an employee on furlough.

[152]I need to decide the hypothetical question of whether the Respondents, had they not unfairly dismissed the Claimant, would have availed themselves of the furlough scheme. This is a small organisation which self-evidently has had scant regard to employment law. It appears they did not regard their priests as ordinary employees in any sense. Administering the furlough scheme would have placed a burden on the Respondents and I find that if they had an easier option they would have taken it. I find that the Respondents would not have placed the Claimant on furlough for all or part of the time he was required to work.

[153]I find that if the Claimant had not been dismissed his hours would have been reduced when the Mandir was closed. If the Mandir was closed there was limited work that he could have been expected to do. I find that the additional priest would not have been recruited had the Claimant not been dismissed. There would have been no need to recruit an additional priest to cover such religious duties as were thought necessary when the temple was closed.

[154]I consider that if the Respondents had realised that they needed to pay the Claimant the national minimum wage that would have had a bearing on how much work they asked him to do. My reasons for that are that the Respondents had finite resources. However for the purposes of assessing how much work the Claimant would have been offered I put that to one side. If the Claimant had not been dismissed that would not have been a consideration because the Respondents did not recognise that they needed to pay the Claimant a lawful sum for each hour worked.

[155]The assessment of loss on a hypothetical basis is not an exact science. Doing the best that I can and relying on the findings of fact I have made above. I find that the Claimant would have been asked to work for at least 15 hours per week whilst the Mandir was closed and would have been asked to work for 35 hours a week for any period when it was open.

[156]Whilst the Respondent would not have actually agreed to pay the Claimant the national minimum wage I obliged to calculate the claimants loss on the assumption that the Respondent would have acted lawfully. Loss of statutory rights

[157]It is conventional to award a sum to reflect ‘loss of statutory rights/the right to a long notice period’. In Harvey on Industrial Relations and Employment Law the rational is explained as follows: ‘In SH Muffett Ltd v Head

[1986] IRLR 488

[1987] ICR 1

, the EAT held that whilst the notional figure for loss of statutory rights should be extended to £100, it should be only in exceptional cases that half the statutory notice entitlement should be paid as suggested in the Daley case. As the EAT pointed out, the significance of such a payment depends upon the double contingency that the dismissed employee will get a new job and that he will be dismissed from that job before building up the same period of notice applicable to the first job. The tribunal, when making an assessment of this kind, should take into account its knowledge of local job conditions.’

[158]In assessing the proper amount to award in respect of this head of compensation I have had regard to my findings below about the Claimant’s efforts to secure alternative employment.

[159]I see no basis for awarding the sum of £3,000 contended for by the Claimant. I have found below that if the Claimant had not acted unreasonably he would have replaced his lost income promptly. Absent the bad feeling engendered in this case there is no reason to believe that the Claimant is at any greater risk of future dismissal than anybody else.

[160]I find that a reasonable sum to award in this case for this head of loss is the £500 contended for by the Respondents. Had they not agreed to pay that sum I may not have awarded quite as much. Mitigation of Loss

[161]Section 123(4) of the Employment Rights Act 1996 provides that in calculating the employee's loss, tribunals shall apply 'the same rule concerning the duty of a person to mitigate his loss as to damages recoverable under the common law'.

[162]The burden is on the Respondent to prove that the Claimant unreasonably failed to mitigate loss. It is not enough to show that there were reasonable steps that the Claimant could have taken it is necessary to show that he has acted unreasonably. See Wilding v British Telecommunications plc

[2002] EWCA Civ 349

and Cooper Contracting Limited v Lindsey

UKEAT/0184/15

Which provides a useful summary of the principles I have applied.

[163]If there is a failure to mitigate that does not mean that the Claimant should receive no compensation. The compensation that should be awarded should take into account what the Claimant’s losses would be had he not acted unreasonably.

[164]The Claimant says that he has not obtained any work which would provide a replacement income. I make the following additional findings of fact:

[165]The Claimant has a diploma in civil engineering and prior to his voluntary work as a priest he had supported himself by working as a site supervisor in the building industry. Whilst working as a priest he took a master’s degree in law and passed his LPC. I find that he is well qualified to undertake a wide range of work.

[166]The Claimant says that he has endeavoured to find work in the legal industry by making face-to-face enquiries on a couple of occasions. He says that on one occasion he was rejected because the employer had knowledge of his dismissal. The Claimant says that he is unable to work for his brother who runs a company in the building industry because if he were to do so his brother would be blighted by his reputation. The Claimant says that the entire building industry is close to him because everyone in his community is aware of his dismissal.

[167]The Claimant has provided no documentary evidence of any effort to find work. He told me that he has not registered with any recruitment agent. I find that he is sufficiently worldly to know full well that he could search for work on the Internet through online agencies or indeed through agencies with physical premises. He has not done so. I take judicial notice of the fact that many people in the construction industry will find work through agencies and that the Claimant is well qualified and experienced to find that work.

[168]The Claimant appears to have limited his consideration of work to work within his own community. He may be right that in his local community there is knowledge of his dismissal. However, he lives in London which is an enormous city. People from all communities work together and there will be numerous employers who would be utterly indifferent to the fact that the Claimant has been in dispute with this particular employer.

[169]I find that the Respondent has proved that the Claimant has failed to take reasonable steps to mitigate his loss. I need to determine what the result would have been if he had taken reasonable steps to replace his income.

[170]I would accept that for a short period the Claimant would be entitled to look for work in areas where he has particular skills. In his case that would include finding a role as a priest elsewhere, finding a role in the construction industry or seeking a training contract or working as a paralegal. However, if he did not obtain employment in those areas the duty to mitigate would require him to look further. I find that he is more than capable of doing a wide range of jobs. The income he needs to replace was paid at the national minimum wage. That means that any job would pay the same rate.

[171]I accept that the existence of the second lockdown did create a hiatus in the employment field but that varied wildly across various sectors. While some sectors contracted others expanded. By mid-2021 there was a significant labour shortage in many sectors.

[172]The Respondent has satisfied me that the Claimant has acted unreasonably in failing to look for and secure some employment.

[173]Whilst a calibration remedy is not an exact science I find that the Claimant could have found employment sufficient to replace the income he lost by his dismissal by no later than 1 August 2021. His losses will be extinguished after that date. ACAS Uplift

[174]I shall deal with the ACAS uplift on the unfair dismissal claim first where it is conceded that there were failures to comply with the relevant code. The failures include not holding a meeting before the dismissal or informing the Claimant of the complaints against him. The Respondent did then offer the Claimant an appeal. Whilst the Claimant makes some criticism of the process of the appeal I am concerned with breaches of the code rather than the ACAS guidance. I consider that the offer of an appeal went some way towards remedying the procedural defects of the initial decision. In terms of the process followed it is relevant to note that the Respondents followed the recommendations of Christopher Edgley.

[175]I must have regard to all surrounding circumstances. I take account of the fact that the Respondent is a small organisation. It does not appear to have had any specialist knowledge of employment law. However, that provides only modest mitigation.

[176]I find that this is not the worst case of a breach of the code of practice but it is a bad case. I consider that it should be an uplift of 18% to the compensatory award payable to the Claimant.

[177]Turning to the issue of whether I should award an uplift on the claim for unlawful deduction from wages. I conclude that the Claimant did raise the fact that he was being paid less than the minimum wage in writing in 2018. Any reasonable employer would have regarded that as being a grievance. The Claimant was in my view very fairly drawing attention to the fact that the Respondents were committing a criminal offence. In 2018 they were prepared to recognise the Claimant as an employee let alone a worker. They were properly on notice of their own wrongdoing which continued until the Claimant’s dismissal.

[178]The relevant code of practice is the ACAS code of practice on discipline and grievances at work. There is a wholesale failure to deal with the Claimants email as a grievance. None of the procedural steps suggested by the code were taken.

[179]I consider that this is at the very top end of the types of failures that would justify an uplift. I consider that the claim for unlawful deductions from wages should be subject to an uplift of 25%.

[180]The Claimant did not raise a grievance about the failure to pay him holiday pay. The Respondent had no scheme in place and clearly did not believe it required to pay the Claimant holiday pay. Given the fact the Claimant did not raise a grievance I cannot make any uplift. I do need to consider whether to reduce the compensation payable to the Claimant. I consider that it would be entirely wrong to do so. The purposes of a grievance procedure are to enable disputes to be resolved without going to court or tribunal. In this case had the Claimant brought a grievance it is quite obvious that it would not resolve matters as the Respondents fought this point until the timely intervention of Mr McCombie who appears to have persuaded the Respondents to see reason. I declined to reduce the compensation in respect of this. Agreement as to calculations

[181]The parties were able to agree the basic award, the loss incurred by the Claimant, the amount of any holiday pay, and the amount of notice pay.

[182]In writing up these reasons I note that there was a failure to uplift the sum I awarded for loss of statutory rights. There is no good reason to treat that head of loss differently than say a loss of wages. It should be subject to the same uplift. I have done so in my calculations above with the result that the sum to be paid by the Respondent is marginally higher than the figures given to me by the parties. Post script

[183]The parties sought written reasons for my decisions and those are given above. I had explained to the parties the burden providing written reasons puts on the tribunal and I have assumed that given the Respondents sought written reasons for my liability decisions and the Claimant reasons for my decisions on remedy that both parties are contemplating an appeal and further litigation.

[184]At the conclusion of the hearing, in what is a first for me, I suggested that given the outstanding costs judgment in the High Court proceedings and the possibility of further appeals the parties at least contemplate some form of alternative dispute resolution. This dispute concerns a small religious charity. Having such a rift in the community is unfortunate.

[185]I finish by commenting on the fact that it appears that no income tax or national insurance has been paid on any of the sums received by the Claimant either by way of wages or by offerings made by the worshipers. It was not suggested that I consider whether the arrangement was tainted by illegality and I did not take the point of my own motion. A consequence of the litigation is that this matter is now in the public domain. COSTS JUDGMENT The Claimant’s application for his costs of the proceedings is dismissed.

[2]Claimant’s application for costs is dismissed. The Respondent’s application for the costs of responding to the JUDGMENT having been sent to the parties on 10 January 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

Discussion and Conclusions

[1]Following a hearing on 8, 9, 10 and 14 February 2023 I determined that the Claimant was an employee and a worker of the Respondent, that he was unfairly dismissed, that he was wrongfully dismissed and that he was entitled to accrued but untaken holiday pay. Following a request for full written reasons my judgment and reasons were sent to the parties on 17 April 2023.

[2]On 12 May 2023 the Claimant made an application asking for an order that the Respondent pay him his costs of the proceedings. He attached to his application a bill of costs that suggested that his total costs amounted to £35,846.92. By a letter dated 21 June 2023 the Respondent indicated that it resisted the Claimant’s application.

[3]The Claimant had prepared a bundle of documents for use at the hearing before me. Unsurprisingly in the context of this litigation the contents of the bundle were not agreed. The bundle had 707 pages. A very large amount of the bundle was taken up with documents generated during the libel proceedings in the High Court.

[4]To understand the reasons I give below, it is necessary to set out a brief chronology of the procedural steps that were taken in this claim. The early procedural history of this case is set out in a judgment following a preliminary hearing before EJ Hallen. He said:

[1]The Claimant in a Claim Form submitted on 3 March 2021, brought claims for: unfair dismissal, wrongful dismissal, breach of contract, unlawful deduction of wages and breach of statutory duty.

[3]Following an unsuccessful judicial mediation between the parties on 7 September 2021, the Tribunal on 11 September 2021 sent written notice to the parties that the Respondent’s application would be considered at a hearing on 9 December 2021,the Tribunal having already listed the claims for a three day final hearing on 15-17 February 2023.

[4]With the assistance of the Claimant’s representative, the claims were clarified as follows: Unfair dismissal contrary to section 98 Employment Rights Act 1996(ERA)and automatic unfair dismissal under section 100relating to health and safety. Wrongful dismissal in respect of the Respondents failure to pay statutory notice to the Claimant. A failure to pay holiday pay for the two years preceding the commencement of the claim. A failure to pay national minimum wage for two years prior to the commencement of the claim.

[5]At the beginning of the hearing, the parties agreed that the application would not be determined in one day as they wished to call oral evidence in support of the application. I accommodated the parties by ensuring that the applications could be determined in a three-day consecutive sitting running from 9, 10 and 13 December 2021 rather than the application going part heard.

[7]An agreed bundle of documents was presented to the Tribunal made up of 470 pages. During the course of the proceedings the Claimant and Respondent were permitted to produce one supplementary document by way of additional disclosure. The Respondent called four witnesses to give oral evidence and each of these witnesses had prepared witness statements which dealt with the application under consideration albeit their statements dealt with other issues not under consideration. These witnesses were Om Joshi, Christopher Edgley, Vijay Kheterpal and Dr. Pratibha Datta. The Claimant also gave oral evidence and had the assistance of a Hindi interpreter throughout his oral evidence. I was satisfied that the Claimant could give his evidence via the interpreter and understood what the interpreter had to say to him. The witnesses were subject to cross examination from their respective legal representatives and from me. 5. Giving very short reasons EJ Hallen decided that the Respondent’s application should be dismissed. His only comments on the merits of the Respondent’s applications were that the Claimant gave credible evidence and that the Claimant did not have little or no reasonable prospects of success. 6. The matter then came before me at a final hearing. At the outset of the hearing I recorded the following concessions made by the parties: 6.1. that the Claimant was a worker for the purposes of his claim for holiday pay and for the purposes of his entitlement to the national minimum wage; and 6.2. that if I were to hold that the Claimant was dismissed on 17 November 2020, then that dismissal was unfair; and 6.3. that the Claimant was no longer contending that he was dismissed for a health and safety reason and that his dismissal was automatically unfair. 7. I refer the parties to the written reasons that I gave for the decisions that I made in respect of the Claimant’s claims. Putting the matter very broadly, the Claimant succeeded in respect of liability in the claims that he advanced but the judgment that he obtained was for substantially less than he had contended for. I refused his application for reinstatement or re-engagement. I rejected his case in respect of his contracted hours of work. I reduced the basic and compensatory award for unfair dismissal to reflect his conduct. I found that the Claimant had failed to mitigate his loss. I increased aspects of the award to reflect failure to follow the ACAS code of practice in respect of the Claimant’s grievance.

[8]In my judgment I recorded the level of bad feeling evident between the parties. This was poor at the outset, but unsuccessful libel claims brought by the Claimant and his failure to satisfy a substantial order for costs made when those proceedings were struck out have raised the temperature between the parties beyond that often found in contentious litigation.

[9]The Claimant’s costs application before me was based on the written application made on his behalf by his solicitor. He suggested that the threshold for making a costs order was passed in three respects. These were: 9.1. That the Respondent acted unreasonably in failing to concede that the Claimant was an employee until the first day of the hearing; and 9.2. That the Respondent had no reasonable prospects of successfully defeating the Claimant’s arguments that: 9.2.1. The Claimant was an employee; and 9.2.2. That his dismissal was unfair; and 9.2.3. That the dismissal did not ‘vanish’ by reason of the offer to reengage him. 9.3. In support of the argument above the application relied upon the fact that EJ Hallen had accepted that it could not be said that the Respondent’s position in respect of the three arguments above did not have no or little reasonable prospects of success and suggested that in the light of this finding the Respondent unreasonably persisted with its arguments.

[10]At the outset of the hearing Mr Mehta, the Respondent’s solicitor made what I regarded as a very bad point. He sought to suggest that the Claimant’s application for costs had been made outside the 28 time limit set out in the rules. The basis for that was that not that the Claimant’s application had not been sent to the Tribunal within 28 days but that when it was copied to the Respondent’s solicitor it had named the wrong fee earner. I regarded that point as utterly misconceived. Rule 77 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ‘the tribunal rules’ provides a time limit of 28 days after the judgment is sent to make an application. Rule 92 requires a party to copy any correspondence to the tribunal to the other parties. Rule 86 provides for the methods of validly serving a party. Rule 86(1)(c) provides that service may be by electronic communication. Rule 86(3) says that where a party has given more than one electronic addresses any one of them can be used unless the party has indicated in writing that an address should not be used.

[11]I do not consider that where a party makes an in time application for a costs order by sending the application to the Tribunal any failure to comply with rule 92 would mean that the Tribunal would be bound to dismiss the application without considering the merits. If I were to accept the argument that service on the wrong fee earner was not compliance with rule 92 then I would find that the error was an irregularity for the purposes of Rule 6 and, as such, it would not of itself render the step taken by the Claimant void. I consider that the Claimant would have an overwhelming case for asking the Tribunal to waive the defect given that there is no discernible prejudice to the Respondent.

[12]However, I do not accept that there was any failure to comply with Rule 92. The Respondents have not satisfied me that they had instructed the Claimant’s solicitor not to use the electronic communication address that they did. As such the Respondent was properly served.

[13]Having disposed of the jurisdictional argument raised by the Respondent I heard from the Claimant himself. Whilst his solicitor was in attendance I was told that it was for support purposes. The Claimant had not asked the Tribunal in sufficient time for the assistance of a Hindi interpreter. As I have recorded in my judgment on the merits the Claimant has passed a Legal Practice Course (with mandatory language requirements). His concerns at the previous hearing were that his accent would make it hard for him to be understood. The Claimant told me that he was happy to proceed to make his submissions. I had no difficulty at all in following what the Claimant said. I allowed the Claimant’s solicitor, who was able to translate for him if it had proved necessary, to assist him wherever necessary. At no stage did the Claimant seek a postponement for the purposes of obtaining an interpreter nor did he suggest that he was disadvantaged by not having one.

[14]The Claimant started his submissions by suggesting that his dismissal had been an act of retaliation because he had queried a loan which he suggested was improper. I pointed out that that was not a matter that was the subject of his claims and I had not been asked to make any findings about it.

[15]The Claimant moved on to point to the advice that the Respondent had had at or around the time he was dismissed. He pointed to the fact that the Respondent had engaged Solicitors at an early stage and then the services of Mr Edgley, an HR professional. He suggested that despite this the Respondent persisted in denying that he was an employee or a worker.

[16]The Claimant suggested that during the application to strike out his libel claim in the high court there had been a concession made by the Respondent that he was an employee. He said that the basis of the decision to strike out his claim was that the Employment Tribunal and the claim for unfair dismissal was the proper forum for any dispute and suggested that as being an employee was a jurisdictional requirement the Respondent must be taken to have conceded the point.

[17]Finally the Claimant focused on the hearing before EJ Hallen. He said that the Respondent had called 4 witnesses and complained that the hearing had lasted three days at some cost to himself. He pointed to the fact that the Respondent’s applications were dismissed in their entirety. His position was that those costs were unnecessarily thrown away.

[18]In his response Mr Mehta set out a chronology of events. He pointed to the fact that there had been no written contract of employment. He did not accept that the Respondent’s position in respect of employment status had no reasonable prospects of success. He pointed to the fact that the Claimant had failed to achieve many of the remedies that he had been seeking. In particular, he suggested that the Claimant’s efforts to seek reinstatement were obviously misconceived given the relationship between the parties. He suggested that correspondence between the parties served on a ‘without prejudice save as to costs’ basis showed that the Claimant was not prepared to settle on reasonable terms. He defended the decision to call 4 witnesses at the preliminary hearing saying that there had been no direction that limited the number of witnesses. He disputed that any concession as to employment status had been made in the High Court proceedings. The

Relevant Law

[19]The jurisdiction to make an order of costs is found in schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) 2013. Rule 76 provides: “When a costs order or a preparation time order may or shall be made (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; (b) any claim or response had no reasonable prospect of success”

[20]There is essentially a 3 stage test. Other than in defined circumstances, before there is any jurisdiction to award costs at all the tribunal must be satisfied that one or more of the threshold conditions set out in Rule 76(1) has been satisfied. If, and only if, it has should the tribunal move on to consider whether, in the circumstances of the particular case, it is right to make a costs order. Finally, it is necessary to decide what amount, if any to award. See Monaghan v Close Thornton Solicitors [2002]

EAT/0003/01

[21]Notwithstanding the existence of the jurisdiction to award costs the exercise of that jurisdiction remains exceptional Gee v Shell Ltd

[2003] IRLR 82

[22]In Barnsley BC v Yerrakalva

[2012] IRLR 78

CA Mummery LJ said: “The vital point in exercising the discretion to order costs is to look at 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.”

[23]In Mr M Radia v Jefferies International Ltd UKEAT 0007 18 JOJ HHJ Aurbach set out the proper approach where the basis of a costs application was that the claim or response had no reasonable prospects of success or in the alternative there has been unreasonable conduct in pursuing a claim or response. He said: ‘61. It is well-established that the first question for a Tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of Rule 76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the Tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the Tribunal of a judicial discretion. If it decides in principle to make a costs order, the Tribunal must consider the amount in accordance with Rule 78. Rule 84 provides that, in deciding both whether to make a costs order, and if so, in what amount, the Tribunal may have regard to ability to pay.62. At the first stage, accordingly, it is sufficient if either Rule 76(1)(a) (through at least one sub-route) or Rule 76(1)(b) is found to be fulfilled. There is an element of potential overlap between (a) and (b). The Tribunal may consider, in a given case, under (a), that a complainant acted unreasonably, in bringing, or continuing the proceedings, because they had no reasonable prospect of success, and that was something which they knew; but it may also conclude that the case crosses the threshold under (b) simply because the claims, in fact, in the Tribunal’s view, had no reasonable prospect of success, even though the complainant did not realise it at the time. The test is an objective one, and therefore turns not on whether they thought they had a good case, but whether they actually did.

63. In this regard, the remarks in earlier authorities, about the meaning of “misconceived” in Rule 40(3) in the 2004 Rules of Procedure, are equally applicable to this replacement threshold test in the 2013 Rules. See in particular Vaughan v London Borough of Lewisham

[2013] IRLR 713

at paragraphs 8 and 14(6). However, in such a case, what the party actually thought or knew, or could reasonably be expected to have appreciated, about the prospects of success, may, and usually will, be highly relevant at the second stage of exercise of the discretion.

64. This means that, in practice, where costs are sought both through the Rule 76(1)(a) and the Rule 76(1)(b) route, and the conduct said to be unreasonable under (a) is the bringing, or continuation, of claims which had no reasonable prospect of success, the key issues for overall consideration by the Tribunal will, in either case, likely be the same (though there may be other considerations, of course, in particular at the second stage). Did the complaints, in fact, have no reasonable prospect of success? If so, did the complainant in fact know or appreciate that? If not, ought they, reasonably, to have known or appreciated that?

65. I should say something further about how the Employment Tribunal should approach an application seeking the whole costs of the litigation, on the basis that the claim “had no reasonable prospects of success” from the outset. It should first, at stage 1, consider whether that was, objectively, the position, when the claim was begun. If so, then at stage 2 the Tribunal will usually need to consider whether, at that time, the complainant knew this to be the case, or at least reasonably ought to have known it. When considering these questions, the Tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. However, it may have regard to any evidence or information that is available to it when it considers these questions, and which casts light on what was, or could reasonably, have been known, at the start of the litigation.’

[24]The ‘Caulderbank’ principle has no direct application in the Employment Tribunal. This does not mean that the Tribunal will not have regard to any offer of settlement made ‘without prejudice save as to costs’ but that the threshold for considering an award of costs will not be met unless the refusal of any such offer was itself unreasonable. See - Kopel v Safeway Stores plc

[2003] IRLR 753

[25]There is no need for the tribunal to find a causative link between the costs incurred by the party making the application for costs and the event or events that are found to be unreasonable, see McPherson v BNP Paribas

[2004] ICR 1398

[26]Rule 84 of the procedure rules provides that when deciding whether to make a costs order and if so in what amount the Tribunal may have regard to the means of the paying party. The rule is permissive rather than mandatory although it would be an unusual case where the means of the paying party were not a material factor. In Vaughan v London Borough of Lewisham [2013] IRLR the Employment Appeal Tribunal, following Arrowsmith v Nottingham Trent University

[2012] ICR 159

held that an assessment of means was not necessarily limited to the ability to pay at the time that the order is made but can have regard to the future prospects of the paying party. Discussion and Conclusions The threshold test

[27]I needed to examine whether the conduct of the Respondent had met the threshold conditions set out in rule 76 relied upon by the Claimant. I should record that the written application suggests that the Claimant’s status as an employee was conceded at the outset of the final hearing. That is incorrect his status as a worker was conceded at the outset of the hearing. His status as an employee remained disputed and was adjudicated upon by me. My reasons are set out in the liability judgment. I understand the Claimant to be saying that the Respondents had no reasonable prospects of defending the claims on the basis either or worker status and employee status and/or that they acted unreasonably in failing to concede those points at an earlier stage than they did.

[28]The threshold condition that the case had no reasonable prospects of success as explained in Mr M Radia v Jefferies International Ltd requires me to ask whether on the basis of the way the case looked at the time it was defended the Respondent had no reasonable prospects of success.

[29]At the core of the issue of whether the Claimant was an employee, or a worker was the question of whether the Claimant was working under a contract at all and if so what were the terms of that contract. The Respondent was aware that the Claimant had worked as a priest elsewhere. They were aware that when the Claimant was offered a contract he had not agreed its terms. The Claimant was paid by the Respondent but was also in receipt of monies from members of the congregation.

[30]In assessing how the case looked at the outset of the proceedings I have regard to the fact that the employment status of those engaged to as ‘ministers of religion’ is not straightforward. Ordinary principles of contract law neeed to be seen in the context religious doctrine. The President of the Methodist Conference v Preston

[2013] UKSC 29

is case which identifies some of the difficulties is identifying the employment status of ministers of religion. Lord Sumption said at paragraph 10: The primary considerations are the manner in which the minister was engaged, and the character of the rules or terms governing his or her service. But, as with all exercises in contractual construction, these documents and any other admissible evidence on the parties’ intentions fall to be construed against their factual background. Part of that background is the fundamentally spiritual purpose of the functions of a minister of religion.

[31]A matter that had given rise to a dispute between the parties during the course of their relationship was whether the Claimant could be required to account for sums of money received from the congregation. He maintained that to do so would be inconsistent with religious teaching. Whilst this was not a matter that ultimately persuaded me that the Claimant was not an employee it is an example of a matter that added to the uncertainty surrounding the Claimant’s status.

[32]I shall turn to the way the Claimant put his application in the written application. His first point is that it was unreasonable for the Respondents to wait until the final hearing before conceding that the Claimant was an employee. This must be an error. The concession made was that the Claimant was a worker. The first point to make is that it is not unreasonable to make a concession where a party has come to the conclusion that a point is unlikely to succeed. I do not understand the Claimant to actually criticise the Respondent for making a concession. The point that is made is that it was not made earlier.

[33]I have had regard to the Respondent’s position from the start of the dispute. From the outset, and in particular from the point it sought advice from Mr Edgley the Respondent has described the Claimant as a casual worker. That is the phrase used throughout the ET3. I set out below that the Defendants in the High Court proceedings used the same phrase.

[34]I consider it important to note that the scope of the Claimant’s claims was not understood by the time of the hearing before EJ Hallen. The Claimant had referred to a breach of statutory duty. That was clarified as being a claim of unlawful deduction from wages which in turn alleged a failure to pay the national minimum wage. A claim that there had been a failure to pay holiday pay was also clarified. Both these claims required the Claimant to show he was a worker.

[35]It is correct that the Respondent did not concede the Claimant’s claims for wages and for holiday pay until the final hearing in the sense that there was no express concession that the claims would succeed in principle. That was the effect of the concession made at the hearing. However, what was not conceded was the quantum of those claims. Those disputes remained contested, and I adjudicated upon them. The outcome of those claims is set out in my liability decision. My conclusions fall between the positions taken by the parties.

[36]I find that the Respondent had in fact implicitly, if not expressly conceded that the Claimant was a worker in its ET1. I would accept that that concession could have been made clear at an early stage. However I do not consider that the failure to do so amounted to unreasonable conduct. It follows that in my view the threshold condition raised by this element of the application is not met.

[37]If I am wrong about that then I find that assessing whether a person meets the statutory definition of a worker set out in Section 230(2)(b) requires an analysis of whether there is a contract in place to perform services personally and then an analysis of whether the services are performed for a person who is a client or customer of any profession or business undertaking carried out by the putative worker. For a priest both questions require a degree of evaluation akin to the exercise of judgment.

[38]I do not accept that it ought to have been so obvious to the Respondent that the Claimant was a worker that persisting with the point up to the final hearing was unreasonable. I believe that there were arguments that the Respondent could have had in mind that were reasonably arguable both as to the existence of a contract and in respect of the client/customer exception. I have come to the conclusion that the Claimant has not made out the threshold test under rule 76(1)(a) in respect of this late concession.

[39]I turn then to the three arguments made that the Respondent had no reasonable prospects of success. As I set out above this was a three pronged attack. I will deal with each point in turn. However, as I understand the Claimant’s position he includes in the first argument a suggestion that the Respondent had no reasonable prospect of success in disputing his status as a worker.

[40]The arguments as to whether the conduct was unreasonable and/or the Respondent’s defence had no reasonable prospects of success are interlinked. As explained in Mr M Radia v Jefferies International Ltd the question of whether a point has no reasonable prospects of success is objective. The focus must be on the situation at the time any of these points was maintained.

[41]The Claimant says that the Respondent had no reasonable prospect of success in defeating his claim to be an employee. In support of that argument it was suggested that the fact that EJ Hallen decided not to strike out the claims reliant on worker status or make deposit orders ought to have alerted the Respondent to the fact that their stance that the Claimant was not a worker would not succeed. I do not think that that argument has much merit. Being told that the opposing party has greater than ‘little reasonable prospects of success’ is very far from being told that your own case has no reasonable prospects of success or even is not properly arguable. If Employment Judge Hallen had given some detailed reasons for his decision and I was persuaded that there was an unreasonable failure to have regard to such reasons then the point would be stronger. He did not make any comments other than to say that the Claimant was apparently credible. A question of employment status need not turn on credibility.

[42]A further point made by the Claimant was that he says that there was a concessioning the High Court proceedings that the Claimant was a worker. I have read the judgment of Mrs Justice Collins Rice in the libel proceedings. She was asked by some of the Defendants to strike out the defamation claim for two reasons. Firstly it was said that the claim was an abuse of process, secondly it was said that the Claimant had no prospects of successfully defeating a claim of qualified privilege. Finally she was asked by the Claimant to extend the statutory limitation period. She acceded to the Defendant’s applications and refused that of the Claimant.

[43]Mrs Justice Collins Rice records the Defendant’s pleaded case as being that they said that the Respondent was a ‘casual worker’. There is no express reference to the Defendants conceding that the Claimant was an employee. The manner in which the Defendant’s counsel put the abuse of process argument was that it was improper to run a defamation case in parallel with the claim in the employment tribunal where the additional benefits that could be obtained in the defamation proceedings were out of all proportion to the additional costs (in the broadest sense) of the High Court proceedings. It is correct that that submission was predicated upon the Employment Tribunal being able to adjudicate on the Claimant’s unfair dismissal case. It would not have been unable to have done so if the Claimant was not an employee. I find that the submissions that were made by Counsel for the represented Defendants was predicated on what the Claimant’s case was. He certainly did not argue that he was not an employee. I do not accept that in making this argument, which was accepted by Mrs Justice Collins Rice, the represented Defendants were making a concession that the Claimant was an employee.

[44]I am not persuaded that the Respondent did at any time have no reasonable prospects of persuading that the Claimant was not an employee. In my liability judgment I set out factors that pointed one way and the other. What was required ultimately was an evaluative judgment of the kind identified in Preston. The test of no reasonable prospects of success is a high one. It is akin to a case that is not properly arguable. I do not find that the case came near that threshold. The case was arguable even if it ultimately failed.

[45]The next suggestion that the threshold for making a costs order is met is a suggestion that the Respondent had no reasonable prospect of defeating a suggestion that a dismissal was unfair. As I understand this point it is concerned with the test that is applied under Section 98 of the Employment Rights Act 1996 and not with the other elements of a claim of unfair dismissal.

[46]If it is said that the defence of the unfair dismissal claim in its entirely had no reasonable prospects of success I would disagree. One element of such a claim is establishing that the Claimant was an employee. I have held above that the Claimant’s claim was not unarguable.

[47]If I consider whether the Respondent had no reasonable prospects of success in resisting a claim that the dismissal was unfair and restrict that to the dismissal itself then I would agree that the Respondent, who dismissed the Claimant without any fair procedure would have had no prospect of success. I accept that the Respondent did take this point in its ET3 – see paragraph 66. I accept that it was bound to fail. It was conceded at the outset of the hearing.

[48]The question of fairness was only one of a number of points that the Respondent took to counter the Claimant’s unfair dismissal claim. The first was employment status, the second disputed the dismissal (see below), It did dispute that the dismissal was unfair bit as an alternative sought findings of contributary fault and resisted an application for reinstatement.

[49]I find that an element of the response had no reasonable prospects of success. That means that I should find that the threshold condition for making an order of costs is passed. For completeness had the same point been made as a suggestion that the Respondent had acted unreasonably in leaving its concession to the final hearing I would have reached the same conclusion. It should have been obvious from the outset that, if the dismissal was established, it was unfair.

[50]I turn then to the final point which is that the Respondent had no reasonable prospect of successfully relying upon the ‘vanishing dismissal’ point. I set out my reasons at length on that point in my judgment. The test that I need to apply here is whether at any point from the outset to the hearing the point had no reasonable prospects of success. I find that it could never have been said that the point had no reasonable prospects of success. In fact the point was attractively argued by Mr McCombie. I accepted some stages in his arguments. Ultimately, I decided the point against him. I do not say that the decision was finely balanced although it did give me some pause for thought. Once analysed in full the Respondent’s argument did not stand up to scrutiny. However, I considered the point to be properly arguable.

[51]I do not conclude that the Respondent’s vanishing dismissal point had no reasonable prospects of success at any time. The Claimant’s additional point

[52]In his oral arguments the Claimant put his application in a way not fully canvassed in the written application. I considered that there was no prejudice to the Respondent in permitting this point to be run. There was ample opportunity for the Respondent to make submissions in response. The Claimant’s argument was essentially that putting him to the time and expense of a 3-day preliminary hearing to consider the question of orders under rules 37 and 39 of the tribunal rules was unreasonable. complained that the Respondent had called 4 witnesses and said that that extended the original time estimate.

[53]I consider it highly unusual that the Employment Tribunal entertained a 3-day application made under Rules 37 and 39. It is well established that such applications would ordinarily require the Tribunal to take the Claimant’s case at its highest, unless controverted by clear contemporaneous documentation. Permitting oral evidence ought to be very much the exception. I would accept that the manner in which this hearing was conducted was an extraordinary waste of resources.

[54]The issue I have to determine is whether the Respondent acted unreasonably in this aspect of their conduct of the proceedings. In looking at that question it is necessary to go back and look at the earlier case management of the claim. The matter had been listed for a final hearing which had been postponed. It appears that the parties had exchanged witness statements for that hearing and that it was those witness statements that were deployed at the preliminary hearing.

[55]The judgment of EJ Hallen discloses that both parties were intent on calling oral evidence. He acceded to that request and extended the hearing adding an extra 2 days. The judgment of EJ Hallen at paragraph 6 indicate that the judge identified as issues for the hearing before him many matters which might properly have been left for a final hearing (or dealt with as preliminary issues). It does not fall to me to criticise a fellow judge and I do not do so. What I can do is make a finding that the manner in which the preliminary hearing progressed was endorsed by a judge.

[56]The issue I have to grapple with is whether the Respondent acted unreasonably. I recognise that the hearing was dealing with the Respondent’s applications. That was why the matter was listed in the first place. However, thereafter I find that this was a case of the blind leading the blind. I do not want to criticise the parties representatives unnecessarily, but I find it extraordinary that neither party really put their minds to the proper purpose of the preliminary hearing and neither party did anything to stop the hearing turning into an entirely pointless mini trial.

[57]I believe that the finding that I am driven to make is that there was unreasonable conduct by the Respondent for its part in allowing the preliminary hearing to be extended beyond what was reasonable. I find that that conduct was mirrored by that of the Claimant and unfortunately not reigned in during the hearing. Should I make a costs order?

[58]I have found the threshold conditions for making a costs order are passed in two respects. The Respondent should not have said that the dismissal could ever be fair, and the Respondent played a part in allowing an application for orders under rules 37 and 39 to be extended beyond any reasonable bounds.

[59]On the first point I note that the issue of whether the dismissal was fair or unfair was very much a subsidiary issue. There was no dispute about how the dismissal had taken place. The points made by the Respondent in order to resist the claim were(1) the status point

(2) the vanishing dismissal point

(3) the contributary fault point and finally it resisted any order for re-instatement. The Respondent had the sense to concede the fairness point before any evidence was heard. I note that at the same juncture the Claimant made a substantial concession and abandoned his claim that the dismissal was automatically unfair. That sort of pragmatism is encouraged by the Tribunal.

[60]I ask myself what was really at stake between these two parties? I find that the Claimant was bringing his claim in part to vindicate his reputation. That was also his position in the defamation claim. Key areas of dispute concerned the matters dealt with as issues of contributary fault. Despite the almost poisonous breakdown in relations the Claimant persisted in asking for reinstatement. In many respects, but not all, the Respondent succeeded in showing that the Claimant had not behaved well and vice versa.

[61]Dealing with the question of whether not conceding that, if there was a dismissal it was unfair, until the final hearing, a stance I accept was unreasonable, justifies me making an order for costs. I find that it does not. Both parties took a number of points that they subsequently lost. The point taken by the Respondent would have had a minimal effect, if any, on the preparations for the hearing. The facts surrounding the dismissal were not in dispute (as opposed to the reasons for it which were quite properly contested). There would have been a contested hearing of the unfair dismissal claim with or without this point being taken in the pleadings. I find that a significant driver for the Claimant was his wish to clear his name and to seek reinstatement. The Respondent has quite properly resisted those parts of the claim.

[62]I turn to the preliminary hearing. I find that this was a case of both parties preparing for and then engaging in a mini trial of the issues. I find that both sides were as bad as the other. The fact that the Respondent had 4 witnesses when the Claimant gave evidence for himself does not make the Respondent any more culpable. The Claimant questioned those witnesses. The Claimant does not suggest that he objected to the witnesses being called. Indeed EJ Hallen records that the parties were in agreement.

[63]I note that at the preliminary hearing time was taken to clarify the Claimant’s case. I can see why that was necessary. The Respondent is not responsible for that. Indeed further clarification was necessary at the hearing before me. I find that part of the 3 days were used up dealing with this.

[64]As I am dealing with the discretion to make an award of costs I should take into account the entirety of the Respondent’s conduct. Having done so I have reached the conclusion that whilst the Respondent’s conduct can be categorised as unreasonable it comes nowhere near the type of conduct that would justify making an order of costs. When the Respondent’s engaged specialist Counsel sensible concessions were made. I have come to the conclusion that in the exercise of my discretion I will not make any award of costs.

[65]I reached the conclusion above without balancing my findings as to how the Respondents have behaved against any criticism of the Claimant. If I were to take into account the Claimant’s own conduct of these proceedings then the following matters were relevant.

[66]Neither parties’ solicitors have demonstrated any great knowledge of employment practice and procedure. Bad points have been taken on both sides. The Claimant only conceded that the dismissal was not automatically unfair at the outset of the hearing.

[67]The Claimant had served schedules of loss at various times during the proceedings. The amounts claimed steadily rose. There was a significant increase once he had been ordered to pay the Defendants costs in the High Court. I rejected several aspects of the Claimant’s case and he recovered substantially less than he sought in the proceedings.

[68]I had not recorded in my judgment the fact that the during the final hearing very large periods of time were lost when the Claimant and his representative were asked to clarify the Claimant’s position. Hours of the hearing were lost in that way to the evident frustration of Mr McCombie.

[69]The Respondent encouraged me to have regard to the correspondence between the parties marked ‘without prejudice save as to costs’. Much of that correspondence was of little assistance in resolving this costs application. It is clear that prior to the hearing Mr McCombie and Ms Godwins were working constructively to narrow the issues. The Claimant had not at that stage conceded his automatic unfair dismissal claim and some time was taken with Mr McCombie attempting to clarify how that case was put. That case was abandoned at the outset of the hearing. As to the remainder of the correspondence it is clear that the Respondent was offering to pay any shortfall in wages and holiday pay but in return sought the withdrawal of the proceedings. The Claimant bettered that position at trial.

[70]On 13 February 2023 before I had dealt with all issues in the case the Claimant’s solicitor made an offer to settle in the following terms: ‘We write further to the ongoing trial in the Employment Tribunal at East London. As you will recall, the Employment Tribunal Judge (the EJ) indicated strongly to our respective counsel that there is a significant risk of reputational damage to both parties. The risk to our client is that of the possibility of criticism that he failed to file his tax returns etc which he argues would have been nil tax returns on account of his low income, notably lower than national minimum wage (NMW). However, the risk to your clients and the charity is far higher for several reasons, including the fine by HMRC for failing to pay an employee at least NMW, which is £20,000.00 per employee. No doubt, once HMRC is notified, there will be an investigation and it is likely that they are going to find evidence of underpayment for other employees also including the cleaners ALL of whom we understand were paid less than NMW, not to mention the failure to register for employee pension contributions, etc payment of tax at source for employees including NI and Income tax etc possibly followed by an intervention from the Charity Commission. This letter is not intended to be an exhaustive list of the potential reputational issues that may be faced by the parties as well as financial implications thereof. In light of the above, our client is willing to resolve the matters outstanding between our respective parties on the following terms: 1. Lump sum payment of £50,000.00 2. Contribution towards costs to be assessed if not agreed, 3. Reinstatement to 35 hours per week at NMW, and 4. Waiver of costs awarded in the High Court. We also reserve the right to produce this letter before the tribunal on the matter of costs, should it prove necessary. We look forward to hearing from you.’

[71]I will not comment upon the propriety of linking a demand for a settlement with what are described as reputational risks. Matters relating to the criminal law and of professional regulation are not my concern. The text of the letter speaks for itself. What is entirely unreasonable in this letter is the suggestion that the Respondent should pay a sum of £50,000 and waive a costs order of around £40,000 properly awarded in High Court proceedings. That is a sum far in excess of what might reasonably have been recovered in these proceedings. This letter is entirely unreasonable in tone and in content.

[72]Had I needed to have regard to these matters then they would have strongly reinforced my conclusion that an award of costs would not be a proper exercise of my discretion. Alternative findings as to the proper amount of any order

[73]The Claimant has indicated in his request for written reasons that he wishes to appeal my decision announced orally that I would not make a costs order. In my oral reasons I did not set out what I would have done had I been wrong about the exercise of my discretion. In order to avoid the need to remit the matter if I have got that wrong I make the following additional findings and reach conclusions on the remaining points.

[74]If I assume that I am in error in the exercise of my discretion and if it had been necessary to deal with the amount of any costs order I would have made the following decisions.

[75]I would have concluded that the failure to concede that the dismissal was unfair caused minimal additional preparation costs for the Claimant. If I needed to assess those I would have said that that inflated the costs of the preparing the witness statement of the Claimant by perhaps 2%. I would not have awarded any costs of the hearing as I find that the preparation for and the hearing length were unaffected by this point.

[76]In respect of the preliminary hearing If I ought to have exercised my discretion differently and awarded a sum to reflect the Respondent’s part in this hearing getting out of hand I would have ordered the Respondent to pay for 1 day of that hearing.

[77]I had no information that suggested that the Respondents do not have the means to make payment of sums of that order. If any appeal is successful the Respondents can draw any information to the attention of the appeal tribunal.

[78]I make it clear that whilst I have dealt with the quantification of costs on an alternative basis my primary position is that in the majority of his application the Claimant has failed to establish that the threshold conditions had been satisfied. Where he did so it was on the basis of conduct that could be categorised as unreasonable but not highly so. I did not consider that this case was one where I should exercise my discretion to make a costs order. Unreasonable conduct of this magnitude is unfortunately a common feature of many cases. If I were to make an award of costs each time a party or their representative takes a wrong step in proceedings making costs orders would no longer be exceptional contrary to the guidance in Gee v Shell Ltd. The Respondent’s application for the costs of

The hearing

[79]After I announced my decision Mr Mehta indicated that he wished to make an application for the Respondent’s costs of the hearing before me. He had not set out that application orally. I expressed some surprise that he had not done so. He was unable to elaborate on the basis of his application other than saying that the Respondent had succeeded and suggesting that it followed from the reasons I had given orally that the application should never have been made.

[80]I take this application to be made on the basis that making the costs application was unreasonable. I do not accept that it was. There was one aspect of the costs application, although not included in the written application, that I found had at least some real merit. The conduct of the preliminary hearing had led to an extraordinary waste of costs. A reasonably informed solicitor would never have allowed that hearing to develop into a 3 day hearing with live evidence from 5 witnesses. Had it I not been concerned that the Employment Judge indulged the parties I may have made a discrete costs order. I accept that the balance of the Claimant’s application had very poor prospects and should probably never have been made. I would have taken little persuasion that the costs application had the co-lateral purpose of stalling the obligation to make payment of the High Court Costs order. However given that there were at least arguable points raised by the Claimant I do not find that the threshold for making an award of costs to the Respondent is met. I therefore dismissed the application. An apology

[81]I apologise for the time it has taken me to prepare these reasons. I have had a series of long cases to deal with and a backlog of work. I have also had to deal with the ill health of a close relative. I have prioritised those cases where the parties were unaware of the outcome. Whilst those are my reasons I know that the delay will have inconvenienced the parties and for that I am very sorry.