Mr Ali Karami v Mr Anthony Hall: 3200838/2019
JUDGMENT
[1]The Claimant was not an employee of the Respondent. Therefore, his claim for unfair dismissal is dismissed.[2]The Claimant is ordered to pay the Respondent £25.00 in respect of costs.REASONS
[1]The matter was listed before me for an open preliminary hearing to consider whether the Claimant’s claim for unfair dismissal should be dismissed because he is not an employee of the Respondent. The parties were notified of the scope of the preliminary hearing by letter dated 6 August 2019.[2]The Claimant had prepared a witness statement focussing on the perceived unfair actions of the Respondent in removing him from working at the London Borough of Waltham Forest. I therefore clarified with the parties the limited scope of my enquiry. 1 of 3Law
[3]Section 94 of the Employment Rights Act 1996 states: “(1) An employee has the right not to be unfairly dismissed by his employer.”[4]Section 230 of the Employment Rights Act 1996 defines an employee as follows: “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.”[5]The Tribunal was referred to a bundle of documents consisting of 68 pages. The Claimant raised whether a full copy of the bundle had been invited to him. In particular, the Claimant took issue with the contract alleged to be between the London Borough of Waltham Forest (LBWF) and NSL that appeared between pages 62 and 68 of the bundle. The Claimant alleged that the document was a fabrication.[6]The Tribunal heard evidence from the Claimant. He accepted that he was employed by NSL in various positions working at LBWF and it was NSL who terminated his employment on 8 May 2019. The Claimant brought claims against NSL under case numbers 3202429/2018 and 3200908/2019 and has a claim for unlawful deduction of wages pending against them.[7]The Respondent gave evidence on his own behalf. He is an employee of the LBWF and is employed as Head of Parking. LBWF have service level agreement with NSL whereby it is able to remove staff onsite. I do not accept that the excerpt of the agreement is a fabrication.[8]The Claimant’s case against the Respondent is based on the fact that Mr Hall was the person behind his dismissal, in that he allegedly made unfair and unjustified assertions and prevented the Claimant from continuing to work at the LBWF. Mr Hall, rightly or wrongly, did decide to communicate NSL preventing the Claimant’s return to work at LBWF. As far as the Claimant was concerned, Mr Hall acted unjustifiably. Whilst the Claimant may feel this disclosed an unfair abuse of power the consideration for me was limited to whether Mr Hall was his employer.[9]The Claimant also relied on a complaint he made to LBWF. He received a response from LBWF on 25 March 2019 stating that his complaint falls outside the complaints procedure as it is an employment issue that is a personnel matter which includes complaints by members of staff or ex-members of staff regarding personal matters such as appointments, dismissals, pay, pensions and discipline. The Claimant contends that this email demonstrated that he was employed by the Respondent. 2 of 3 However, it does not reference Mr Hall at all and at most would be indicative of a relationship between the Claimant and LBWF but not the Respondent.[10]It is clear from the documentation that I was referred to and the Claimant’s admissions that his employer was NSL. It is inconceivable for him to assert that Mr Hall employed him. Mr Hall clearly had an impact and influence on his continued engagement with LBWF, through NSL but could not be seen as his employer in any way.[11]As Mr Hall was not the Claimant’s employer the Claimant's claim for unfair dismissal must fail and is dismissed. Costs[12]Following delivery of the Judgment dismissing the Claimant’s claim, the Respondent’s solicitor applied costs against the Claimant pursuant to rule 76 of the ET rules. He contended that the Claimant maintaining the claim was misconceived in view of the documentation and indeed the evidence the Claimant gave about his employer. The Respondent sought the sum of £554 in relation to the cost of attendance. It asserted that it communicated with the Claimant a number of times and invited the Claimant to withdraw his claim.[13]The Claimant objected to the application. He stated that he believed that he had been unfairly treated by Mr Hall and he sought justice. He stated that he tried to resolve matters but was unable to do so.[14]I conclude that it was not reasonable for the Claimant to maintain that he was employed by Mr Hall for the hearing today. The parties were fully informed by the Tribunal letter of 6 August 2019 that the scope of enquiry would be whether Mr Hall employed the Claimant. The Claimant was clear that NSL was his employer. However he maintained that whilst Mr Hall did not employ him, Mr Hall was responsible for the decision to dismiss him. They were not the same things and the Claimant ought to appreciate the difference. Having considered that the Claimant was unreasonable in proceeding with the hearing today, I considered whether to exercise my discretion to award costs and considered the Claimant’s means. The Claimant is receiving universal credit.[15]I decided to exercise my discretion to award costs and conclude that the Claimant should pay the Respondent £25 in respect of his legal costs of attendance.