Mr J A Caesar v Anti-Graffiti Systems Ltd: 3200823/2024

EMPLOYMENT TRIBUNALS

Case No 3200823/2024

Between

Mr J Appiah CaesarClaimant

Anti-Graffiti Systems Ltd RECORD OF A PUBLIC PRELIMINARYRespondent

Before

Employment Judge Shore

In person for claimant

Ms A Amesu (instructed by Counsel) for respondent

Date 22 July 2025

JUDGMENT

[1]The Tribunal can hear both the claims brought by the claimant because he complied with the requirement to obtain an ACAS Early Conciliation certificate against both proposed respondents;

[2]All the claimant’s claims should be dismissed because they have no reasonable prospect of success under Rule 38

[3]Whether part or all of the claimant’s claims should be made the subject of a deposit order under Rule 40 because they have little reasonable prospect of success; and

[4]No case management orders should be made, save that the preliminary hearing that was postponed on 8 July 2025 shall not be relisted as all claims have been dismissed. 1 of 24

REASONS

[5]This hearing arises from a preliminary hearing that I conducted on 6 January 2025. I can only apologise to the parties and representatives for the delay in promulgating this decision, which has been due to pressure of work and family health matters.

[6]The claimant started early conciliation against: AGS One Anti-Graffiti Systems Ltd The Hyde Unit D The Hyde Business Centre on 28 March 2024 and obtained an ACAS early conciliation certificate number R153175/24/71 on 2 April 2024 [1].

[7]The claimant started early conciliation against: Lanes Group Lanes for Drains Ltd

[16]Lamson Road 2 of 24 RM13 9YY on 28 March 2024 and obtained an ACAS early conciliation certificate number R153176/24/62 on 2 April 2024 [2]. 8. The claimant presented his ET1 on 8 April 2024 [3-14] naming the following respondents: Andrew Sim Unit D Prospect House The Hyde Business Park Wayne Earnshaw Lamson Road RM13 9YY 9. He completed no details of when his employment started or ended in Box 5 [6]. 10. The claim was coded by the Employment Tribunal as consisting of:10.1 Unfair dismissal; 3 of 24

10.2 Race discrimination;

10.3 Breach of contract;

10.4 Unauthorised deduction from wages; and

10.5 Holiday pay. 11. At paragraph 15 of the ET1 [14], the claimant stated “I was directly employed by AGS One…I worked 5 nights a week directly with AGS One. This was for a period of 8 years. 12. The claim was rejected by Regional Employment Judge Burgher on 20 June 2024 [15] because the claimant had not given an early conciliation certificate number: the numbers given did not match the respondents’ names on the ET1. The claimant had also entered the same EC certificate number (R153176/24/71) for both respondents. 13. The claimant responded on 26 June 2023 [16] by apologising for his error. He attached a copy of certificate number R153176/24/62 [17], which stated that the EC notification had been received on 28 March 2024 and that the EC had been issued on 2 April 2024. The name of the respondent had been changed to: Lanes Group Lanes for Drains Ltd 16 Lamson Road RM13 9YY 14. The claimant produced a copy of certificate number R153175/24/71 [not produced in the bundle], which stated that the EC notification had been received on 28 March 2024 and that the EC had been issued on 2 April 2024. The name of the respondent had been changed to: 4 of 24 AGS One Anti-Graffiti Systems Ltd The Hyde, Unit D, The Hyde Business Centre 15. The above certificate was not produced in the bundle prepared for this hearing. I have taken the above details form the Tribunal’s digital file, where it appears as an attachment to the claimant’s email of 26 June 2023 [16]. 16. The claimant also produced an amended copy of his ET1 [20-30], which was identical to the original, save that EC certificate number for the first respondent (who remained as “Andrew Sim”) had been amended to “R153175/24/71”.

[17]The claimant’s email requested a reconsideration of the rejection of his claim.

[18]The claimant’s email and documents were referred to a Legal Officer by a member of the administration team. The member of the administration team noted in their referral that:18.1 The name of the first respondent (Andrew Sim) differed from the name on the EC certificate (AGS One), but AGS One was named as the employer in paragraph 15 of the ET1.

18.2 The first respondent’s address on the ET1 differed from the ACAS EC certificate address.

18.3 The EC certificate address for AGS One was the same as the Companies House address for AGS One Group Limited.

18.4 The second respondent’s name on the ET1 (Wayne Earnshaw) differed from the EC certificate (Lanes Group), but Lanes Group were mentioned in paragraph 15 of the ET1 [14]. 5 of 24

[19]The Legal Officer referred the matter to REJ Burgher who made the following order on 1 July 2024 [31]: 19.1. The claim against AGS One was not rejected (the ET1 was deemed to be presented on 8 April 2024); 19.2. The claim against Lanes Group was rejected on the grounds that the claimant had not complied with Rule 10(1)(c) of the 2013 Rules of Procedure because the name on the ET1 did not match the name on the EC certificate for Lanes Group.

[20]The claimant’s claim was served on “AGS One, Anti Graffiti Systems Ltd” on 1 July 2024 [33-34].

[21]It appears from the Tribunal record that Wayne Earnshaw remained on the record as second respondent.

[22]AGS One presented its ET3 and Grounds of Resistance on 29 July 2024 [39-51], which was accepted on 14 August 2024 [52-53]. The Grounds of Resistance asserted that AGS One was the trading name of Anti-Graffiti Systems Limited.

[23]The Tribunal made some case management orders of its own volition on 14 August 2024 [54-55]. The claimant applied for a postponement of a preliminary hearing listed for 14 October 2024 due to ill health [35-36] in an email dated 18 September 2024 [56]. In another email of 18 September, the claimant applied to amend his claim to add three respondents to the case [57].

[24]In an email dated 24 September 2024, the respondent did not oppose the adjournment application and could not comment on the amendment application. A postponement to 6 January 2024 was confirmed by REJ Burgher on 11 October 2024.

[25]I heard the postponed preliminary hearing on 6 January 2025 and made a case management order dated 7 January that was sent to the parties on 15 January 6 of 24 2025 [67-76] following the hearing. That included setting up this public preliminary hearing to determine: 25.1. Whether the Tribunal can hear any of the claims brought by the claimant because the claimant failed to comply with the requirement to obtain an ACAS Early Conciliation certificate against any of the proposed respondents; 25.2. Whether part or all of the claimant’s claims should be dismissed because they have no reasonable prospect of success under Rule 38; 25.3. Whether part or all of the claimant’s claims should be made the subject of a deposit order under Rule 40 because they have little reasonable prospect of success; and 25.4. What case management orders should be made.

[26]At the preliminary hearing, I discharged Anti-Graffiti Systems Limited (AGS) as a respondent from these proceedings. I spent some time reading the Tribunal’s digital file after the hearing and found the referral made to REJ Burgher concerning the disparity between the ACAS EC certificate filed by the claimant with his original ET1 (R153176/24/62) and the names of the respondents in the ET1: Andrew Sim and Wayne Earnshaw.

[27]I have reconsidered my decision to discharge AGS from the claim on my own initiative and reversed that decision. My decision did not mean that I had made a finding that the claimant had complied with the Rules in relation to the proceedings against AGS. I indicated that matter would be resolved at the PPH that I listed. I asked the administration to provide AGS with copies of the documents in the possession of the Tribunal relating to claim number 3200823/2024.

[28]Andrew Sim had not been removed as a claimant in these proceedings, so he was advised to attend this PPH. As he was the MD of AGS, I dispensed with service on him. 7 of 24

[29]Wayne Earnshaw was still on the Tribunal’s digital file as a respondent, but as he was replaced by Lanes Group and that claim was rejected, he was removed as a respondent. I asked the administration to complete that task, but it was not done. I will ensure that it is now done.

[30]For the avoidance of doubt, the two potential respondents in this case as it stood on 6 January 2025 were Anti-Graffiti Systems Limited (AGS One) and Andrew Sim.

[31]I refused the claimant’s application to add the Mayor of London, Transport for London, and Lanes Group as respondents as a claim against Lanes Group was rejected by the Tribunal in June 2024 and the claimant could have had no possible claim against the Mayor of London or TfL.

[32]In preparation for this hearing, the respondent produced an agree bundle of documents and index. The bundle consisted of 148 pages. I was also provided with witness statements from: 32.1. Andrew Sim; 32.2. Jesse Appiah Caesar; 32.3. Andre Mfade (in support of the claimant); and 32.4. Reginald Bannor (in support of the claimant.

[33]I read the bundle and the witness statements before the hearing. Discussion at hearing

[34]The hearing was scheduled to start at 10:00am and was listed for three hours. At the scheduled start time, there was no sign of the claimant. I asked the Tribunal Clerk to ring the claimant to see if he was having any problems logging in. I was told that the claimant had rung the office for the CVP link. 8 of 24

[35]The claimant joined by telephone at 10:09am. He confirmed that he had submitted all the EC certificates he had and that this was the only ET1 he had presented. Ms Amesu confirmed that it was. The claimant had confirmed his claims and the respondents that he was claiming against in an email dated 17 February 2025 [86]: Claim Respondents Direct Race Discrimination Both respondents Breach of contract and other Both respondents payments Unfair dismissal Both respondents

[36]As a matter of law, unfair dismissal and breach of contract can only be brought by an employee against and employer. The claimant had not alleged that Mr Sim was his employer; he had specifically said that AGS One was his employer.

[37]As a matter of law, money claims can only be brought by a worker or employee against the entity with which they are contracted to do the work.

[38]Discrimination claims can be brought against an employer or a member of the employer’s staff.

[39]On that basis, only the claim of direct race discrimination could be brought against Mr Sim.

[40]In his email of 17 February 2025 [86], the claimant agreed the List of Issues that the respondent had sent him on 17 February 2025 [87-90]. That List of Issues included a claim for automatic unfair dismissal because the claimant made a protected disclosure (paragraph

[41]Given the orders made by EJ Burgher and the EC certificates produced by the claimant, I determined that the claimant had produced valid EC certificates against AGS One and Mr Sim. 9 of 24

[42]At 10:29am, I started to hear the evidence of the second respondent, Andrew Sim, who is Managing Director of Anti-Graffiti Systems Limited, who gave evidence on affirmation and relied on his witness statement dated 18 March 2025 that consisted of thirty-five paragraphs. The statement only really dealt with the status of the claimant. I had no questions for Mr Sim. Ms Amesu had no supplementary questions.

[43]The claimant cross-examined Mr Sim until 10:49am. Ms Amesu asked reexamination questions until10:57am, when we took a break until 11:02am.

[44]The claimant, Jesse Appiah-Caesar, gave evidence on oath and relied on his witness statement dated 17 March 2025 that consisted of twenty-six paragraphs. The statement dealt with the whole of the claim. Ms Amesu cross-examined the claimant until 11:50am. I had no questions for Mr Appiah-Caesar.

[45]Neither Mr Mfade nor Mr Bannor attended the hearing. I considered their statements but could give them little weight.

[46]As there was only just over an hour left of the hearing and I had another hearing scheduled to start at 2:00pm, I advised the parties that I would reserve my decision on this PPH and would list a further preliminary hearing to make case management orders, as I would not be able to make any orders until I had determined the matters of strike out and/or deposit. That preliminary hearing was listed for 8 July 2025, and I apologise for not promulgating this Judgment and Reasons until now.

[47]The claimant made his closing submissions from 11:52am until 12:04pm. Ms Amesu made her closing submissions from 12:04pm until 12:20pm. I gave the claimant the right of reply and he spoke until 12:22pm, when I closed the hearing.

Law

[48]For the purposes of the unfair dismissal claim, the relevant sections of the Employment Rights Act 1996 (ERA) are section 98, and section 230. Section 98 Employment Rights Act 1996 10 of 24(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show- (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it- (a) Relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) Relates to the conduct of the employee, (c) Is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical, or professional qualification relevant to the position which he held. 11 of 24

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal was fair or unfair (having regard to the reason shown by the employer)- (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”

[49]Section 230(3) of the Employment Rights Act 1996 (“ERA 96”) provides in part; 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. 12 of 24

[50]The relevant sections of the EqA 2010 for the claims of direct and indirect discrimination are sections 13 and 83: 13. Direct discrimination A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. The relevant protected characteristics are— … (a) race; … 83 Interpretation and exceptions (1)This section applies for the purposes of this Part. (2)“Employment” means— (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;…

[51]The relevant statutory law for the breach of contract (notice pay) claim is Articles 3 and 7 of the Employment Tribunal Extension of Jurisdiction (England & Wales) Order 1994: Extension of jurisdiction 3. Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if— 13 of 24(a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;

(b) the claim is not one to which article 5 applies; and

[52]The relevant statutory law for an unauthorised deduction of wages claim is sections 13 and 23 of the ERA 1996: 13 Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction… 23 Complaints to employment tribunals.

[53]The legislation on whistleblowing, which now sits in the ERA 1996, extended the scope of its protection beyond employees, applying to 'workers'. This adopted the general definition of 'worker' in the ERA 1996 s 230(3), which I have set out above.

[54]However, section 43K of the ERA further extended the scope of worker in whistleblowing cases to include a further category. Section 43K includes the following provisions that may be relevant to this case: 43K Extension of meaning of “worker” etc. for Part IVA. (1) For the purposes of this Part “ worker ” includes an individual who is not a worker as defined by section 230(3) but who— 14 of 24 (a) works or worked for a person in circumstances in which— (i) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them, (b) contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”…

[55]Following the authority of the Employment Appeal Tribunal in the case of Croke v Hydro Aluminium Worcester Ltd

[2007] ICR 1303

, the claimant, as the sole director of Jessklin Limited could have been supplied or introduced to the first respondent and met the definition of ‘worker’ under section 43K ERA.

[56]The Court of Appeal case of MHC Consulting Ltd v Tansell

[2020] ICR 789

(at paragraphs 46-49) is authority for the proposition that if there is no express contract between a claimant and an employee under which he personally performed personal service for the company, he could only be a ‘worker’ within the meaning of section 230(3)(b) of the ERA. This decision pre-dated the implementation of section 43K of the ERA.

[57]A Tribunal has power, 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 (Rule 38) on the grounds:(a) that it is scandalous or vexatious or has no reasonable prospect of success (r 38(1)(a)); 15 of 24

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious (r 38(1)(b));

(d) that it has not been actively pursued (r 38(1)(d));

(e) that the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out) (r 38(1)(e)).

[58]In this hearing, I am only concerned with whether the claimant’s claims have any reasonable prospects of success (r38(1)(a)). A strike out application is often in practice accompanied in the alternative by an application for a deposit order, as in this case.

[59]Deposit orders are regulated by Rule 40. Where a Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may order the party putting forward the allegation or argument ('the depositor') to pay a deposit of an amount not exceeding £1000 as a condition of continuing to advance the allegation or argument (r 40(1)).

[60]However, before making an order, the tribunal must make reasonable enquiries into the ability of the depositor to pay the deposit and have regard to any such information when deciding the amount of the deposit (r 40(2)). The tribunal's reasons for making the order must be provided with the order and the paying party must be notified about the potential consequences of the order (r 40(3)). The order will specify the date by which the deposit must be paid (r 40(4)).

[61]In considering the claimant’s chances of success, I considered the likelihood of him being able to demonstrate that he was a worker or employee for AGS One. 16 of 24

[62]In Autoclenz Ltd v Belcher and ors

[2011] ICR 1157

, the Supreme Court held that the written agreement is not decisive in determining employment status, and the relative bargaining powers of the parties must be considered.

[63]There are three conditions for the existence of a contract of employment set out by McKenna J in Ready-Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2QB 497

, albeit in the old-fashioned terminology of ‘master’, ‘servant’ and ‘contact of service’, rather than ‘employer’, ‘employee’, and ‘contract of employment’: ''(1) 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. (2) He agrees, expressly or impliedly, that in the performance of that service he will be subject to that other's control in a sufficient degree to make that other master. (3) The other provisions of the contract are consistent with its being a contract of service.''

[64]The above formulation has been binding for a long time and is often the starting point for arguments about status.

[65]In Uber BV and ors v Aslam and ors

[2021] ICR 657

, the Supreme Court held that ‘worker’ status is a question of statutory, not contractual, interpretation, and it is therefore wrong in principle to treat the written agreement as a starting point. The following are some relevant extracts from of the speech of Lord Leggatt: “38. The effect of these definitions, as Baroness Hale of Richmond observed in Bates van Winkelhof v Clyde & Co LLP

[2014] UKSC 32

; [2014], paras 25 and 31, is that employment law distinguishes between three types of people: those employed under a contract of employment; those selfemployed people who are in business on their own account and undertake 17 of 24 work for their clients or customers; and an intermediate class of workers who are self-employed but who provide their services as part of a profession or business undertaking carried on by someone else. Some statutory rights, such as the right not to be unfairly dismissed, are limited to those employed under a contract of employment; but other rights, including those claimed in these proceedings, apply to all “workers”. ….

[69]Critical to understanding the Autoclenz case, as I see it, is that the rights asserted by the claimants were not contractual rights but were created by legislation. Thus, the task for the tribunals and the courts was not, unless the legislation required it, to identify whether, under the terms of their contracts, Autoclenz had agreed that the claimants should be paid at least the national minimum wage or receive paid annual leave. It was to determine whether the claimants fell within the definition of a “worker” in the relevant statutory provisions so as to qualify for these rights irrespective of what had been contractually agreed. In short, the primary question was one of statutory interpretation, not contractual interpretation. ….

[75]The correlative of the subordination and/or dependency of employees and workers in a similar position to employees is control exercised by the employer over their working conditions and remuneration. As the Supreme Court of Canada observed in McCormick v Fasken Martineau DuMoulin LLP 2014 SCC 39, para 23: “Deciding who is in an employment relationship ... means, in essence, examining how two synergetic aspects function in an employment relationship: control exercised by an employer over working conditions and remuneration, and corresponding dependency on the part of a worker. ... The more the work life of individuals is controlled, the greater their dependency and, consequently, their economic, social and psychological vulnerability in the workplace ...” … 18 of 24 87. In determining whether an individual is a “worker”, there can, as Baroness Hale said in the Bates van Winkelhof case at para 39, “be no substitute for applying the words of the statute to the facts of the individual case.” At the same time, in applying the statutory language, it is necessary both to view the facts realistically and to keep in mind the purpose of the legislation. As noted earlier, the vulnerabilities of workers which create the need for statutory protection are subordination to and dependence upon another person in relation to the work done. As also discussed, a touchstone of such subordination and dependence is (as has long been recognised in employment law) the degree of control exercised by the putative employer over the work or services performed by the individual concerned. The greater the extent of such control, the stronger the case for classifying the individual as a “worker” who is employed under a “worker’s contract”. …. 91. Equally, it is well established and not disputed by Uber that the fact that an individual is entirely free to work or not, and owes no contractual obligation to the person for whom the work is performed when not working, does not preclude a finding that the individual is a worker, or indeed an employee, at the times when he or she is working.”66. I also considered the cases of Clark v Oxfordshire Health Authority [1998], IRLR 125 CA, Pimlico Plumbers Ltd v Smith

[2018] UKSC 29

, and Ter-Berg v Simply Smile Manor House Ltd and ors

[2023] EAT 2

. Findings Agreed Facts

67. The following facts were either agreed by the parties or one party’s evidence was not challenged by the other: 67.1. The first respondent, Anti-Graffiti Systems Limited, trades as AGS One and provides services that include commercial graffiti removal and cleaning services to customers that include Network Rail and Transport for London (TfL). 19 of 24 67.2. Andrew Sim, the second respondent, is the Managing Director of the first respondent. 67.3. The first respondent operates in a highly regulated industry where safety is a primary concern. People working on or around National Rail and Underground tracks are required to have regular safety training and certification. 67.4. The process of certification was labyrinthine. 67.5. The claimant began work for the respondent as an employee in the role of Temporary General Labourer in 2016. Neither side was able to provide evidence of the dace of commencement of employment. Mr Sim’s unchallenged evidence was that the claimant was employed by AGS People Limited, not the first respondent. The claimant asserts he was never given a contract of employment. 67.6. It was not disputed that people who work on rail must have a Sentinel card (also known as the Industry Common Induction (“ICI”) card). It was not disputed that the claimant had a Sentinel card from the start of his career with AGS. 67.7. It was not disputed that it was a precondition of taking the Sentinel course, for the individual to be ‘sponsored’ by a company to ensure that people with the Sentinel card did not gain access to the dangerous rail infrastructure without having a reason to be there. If a company stops sponsoring an individual, that person loses the right to work on the rail until they are sponsored by another company. 67.8. The claimant also held a Personal Track Safety (“PTS”) qualification under the Sentinel scheme. The claimant’s Sentinel details were produced in the bundle [96-97]. 67.9. The parties agreed that the claimant’s role changed from employed Labourer in 2018, when he obtained a “Protecting Workers on the Track” Licence (“PWT”). The PWT Licence is necessary for anyone wishing to work as a Protection Master. It was not disputed that AGS paid for the claimant to obtain the Licence because it was looking to increase the number of people available to it who had the qualification. At paragraphs 7 and 8 of his witness statement, the clamant wrote, “It was made clear to me when I became a PWT that I needed to become self-employed. I was therefore forced to register and work as self-employed.” The claimant’s evidence at paragraph 6 of his witness statement was that “To get work, I would contact the planner with my availability and he would respond with available shifts.” 67.10. The claimant’s evidence that the respondent provided all PE and chemicals required to work was unchallenged. 20 of 24 67.11. Page 95 of the bundle was a letter dated 14 February 2018 addressed to “Dear Sir/Madam” with no address or name of a recipient. The letter contained the following: “This letter is to confirm that Jesse Appiah-Caesar will be working for Anti-Graffiti Systems Limited from 18 February 2018 as a SPC- EH/PWT-EH.” 67.12. It was agreed that the claimant provided his services through Jessklin Limited, a private limited company owned and controlled by the claimant. 67.13. The respondents’ case is that the first respondent would have given the claimant a contract in the form of the pro forma provided in the bundle [122-125]. The actual contract was not produced. The pro forma was titled “Agreement with the Contractor (Terms of Engagement)”. 67.14. The circumstances of the change in the claimant’s status are disputed and dealt with below. 67.15. The issues of control, substitution, personal service, tools, and mutuality of obligation are disputed and dealt with below. 67.16. It is not disputed that the claimant took a mandatory Drug and Alcohol test on 23 January 2024. The claimant did not dispute the assertion in paragraph 12 of the respondents’ Grounds of Response that the first respondent’s contract with Network Rail required 20% of the workforce to be randomly tested for drugs and alcohol each year and London Underground required 5% of the first respondent’s workforce to be randomly tested for drugs and alcohol each year. 67.17. The claimant failed the alcohol test. The first respondent cancelled its contract with Jessklin Limited 67.18. The claimant field a grievance on 22 March 2024, which was rejected by an external HR consultant appointed by the first respondent to hear the grievance. Disputed facts

68. I made my findings below based on the evidence and documents produced and the principles of law set out above after hearing submissions from the parties. Status

69. I find that the claimant has no reasonable prosect of showing that the second respondent, Andrew Sim, discriminated against him on the grounds of race. I make that finding because the claimant and neither of his two witnesses made any mention of Mr Sim in any of the three statements submitted. There was absolutely 21 of 24 no evidence in the witness statements produced or in the documents that suggested that Mr Sim did anything unlawful in respect of the claimant.

70. I repeat my finding above that the Tribunal has no jurisdiction to hear claims of unfair dismissal, unauthorised deduction form wages, breach of contract, or a claim for holiday pay as the second respondent could not have been the claimant’s employer.

71. All claims against the second respondent, Andrew Sim are struck out.

72. I find that the claimant has no reasonable prospect of showing that he was an employee of the first respondent as defined in section 230(1) of the ERA. I make that finding because: 72.1. Mr Sim’s evidence that the respondent contracted with Jessklin Limited from 18 February 2018 was not disputed. 72.2. There was no evidence of an express contract under which the claimant provided personal services for the first respondent. 72.3. The case of MHC v Tansell (see above) therefore precludes the claimant from showing that he was an employee as defined in section 230(1). 72.4. The claimant admitted he was self-employed. 72.5. The claimant was paid under the IR35 scheme and had the beneficial tax status of a self-employed person. 72.6. The claimant’s assertion that “…if any self-employed person worked with another business, they would be reprimanded for moonlighting” makes no factual or logical sense, given the undisputed evidence that the claimant could accept or refuse work with the first responder’s customers. 72.7. There is no reasonable prospect that the claimant will be able to show that there was a mutuality of obligation. 72.8. The claimant’s submission that he used the Kronos HR system meant he was an employee has no reasonable prospect of succeeding given Mr Sims’ evidence that everyone engaged by the first respondent used the system. 72.9. The claimant has no reasonable prospect of showing that the first respondent exercised a degree of control over his work. The claimant rang the respondent to obtain assignments. He was told where and when to attend. There were several examples in the evidence of the respondents and the documents of the claimant simply not turning up for work and/or refusing work. There was no evidence of any repercussions for the claimant if he refused work or failed to turn up. 22 of 24

73. I find that the claimant’s claims of ‘ordinary’ unfair dismissal, automatic unfair dismissal because he made a protected disclosure, and breach of contract have no reasonable prospect of success because the claimant does not meet the relevant definition of ‘employee’ in section 230(1) and are struck out.

74. I find that the claimant has no reasonable prospect of showing that he was an employee as defined in section 83 of the Equality Act 2010. I make that finding because: 74.1. He has no reasonable prospect of showing that he was engaged in employment under a contract of employment, a contract of apprenticeship or a contract personally to do work. 74.2. I repeat my findings above. 74.3. I find that the claimant has no reasonable prospect of showing that he was required to undertake work for the second respondent personally. 75. The claimant’s claims of race discrimination are therefore struck out for lack of jurisdiction.

Findings

[76]I find that the claimant has no reasonable prospect of showing that he was a worker as defined in section 230(3) of the ERA because he will not be able to demonstrate that he worked under “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”, because he will not be able to show that he was required to perform the work personally and he was, by virtue of the agreement between the first respondent and Jessklin Limited, providing the service by through that contract.

[77]The claimant’s claims of for unauthorised deduction from wages and holiday pay are therefore struck out as having no reasonable prospect of success.

[78]I find that the claimant meets the definition of worker in section 43K of the ERA because of its wider definition of ‘worker’.

[79]However, I find that the claimant has no reasonable prospect of success because: 79.1. The claimant’s claimed protected disclosure in his witness statement (paragraph 10) is entirely different from the one in the draft List of Issues [88]. The difference fatally undermines his credibility. 79.2. The claimant’s allegation at paragraph 10 of his witness statement does not have any prospect of being found to be a protected disclosure. 79.3. The claimant’s allegations are undated and vague. 23 of 24

[80]The claimant’s claims of detriment because he made a protected disclosure and automatic unfair dismissal (if it had not already been struck out for lack of jurisdiction) are struck out. Approved by