Mr Jack PearceClaimantNL Recruitment LimitedRespondent
Before
Employment Judge BarrettRepresented himself for claimantNot represented for respondentDate 10 December 2023
JUDGMENT
No response has been presented to this claim and an Employment Judge has decided to issue the following judgment on the available material under rule 21:-[1]The Respondent has made unauthorised deductions from the Claimant’s wages and breached the Claimant’s contract of employment by failing to pay the Claimant’s holiday entitlement outstanding at the time his employment terminated.[2]The Respondent shall pay the Claimant the sum of £541. The judgment sum is calculated as follows:a. The Claimant was entitled to 8 days’ holiday not taken when his employment terminated.b. At a daily rate of £84, the Claimant was entitled to £672 in holiday pay.c. The Respondent has paid the Claimant £131 in respect of holiday pay owing, leaving a remaining balance of £541. Case Number: 3201436/2023[1]It is necessary in the interests of justice for the original judgment dated 10 December 2023 to be reconsidered.[2]On reconsideration, Mr Nikolaos Lambeas is substituted for NL Recruitment Limited as the Respondent to this claim.[3]The Respondent shall pay the Claimant the sum of £541.
REASONS
[1]The Claimant notified ACAS of his prospective claim on 30 May 2012. Following a period of early conciliation he was issued with an early conciliation certificate dated 11 July 2023 on which the prospective Respondent was named as “NL Recruitment Ltd”, with an address on Fleet Street. On 4 August 2023, the Claimant presented an ET1 claim form naming his employer as “Nick Lambeas”, with the same Fleet Street address. The claim was for outstanding holiday pay.[2]The Tribunal sent the Notice of Claim to “FAO: Nick Lambeas, NL Recruitment Ltd” and recorded NL Recruitment Limited as the Respondent. The Respondent did not present an ET3 response to the claim.[3]At a hearing by CVP on 4 December 2023, which the Claimant attended but the Respondent did not, the Claimant provided a witness statement with exhibits comprising an employment contract and payslips, and a schedule of loss. His evidence was that he had been employed between 17 March and 30 June 2023. All his dealings had been with Mr Lambeas. He believed that he was employed by Mr Lambeas’ company, NL Recruitment Limited, as a B2B (“business to business”) agent on a placement with a company called Comdata in its call centre. After he had been working there for a month or so (and therefore after the employment contract was formed) he was presented with an employment contract in the name of another company, EG McIntosh Limited, and subsequently a further contract in the name of a third company, AS Holloway Limited. He did not agree to be employed by those companies and was given to understand Mr Lambeas was simply changing the mechanism for paying him. His payslips were issued in the same format throughout the period of employment save that the contact email address changed from “info@egmcintosh.co.uk” to “info@asholloway.co.uk”. When his employment ended, Mr Lambeas refused to pay him outstanding holiday pay, stating that as a zero-hours contract worker he was not entitled to any. At the hearing, the Claimant said he had checked NL Recruitment Limited was still trading and its website was still live.[4]Following that hearing a judgment was issued, dated 10 December 2023 and material under rule 21 Employment Tribunal Rules of Procedure 2013 against NL Recruitment Limited.[5]The judgment was as follows: 1) The Respondent has made unauthorised deductions from the Claimant’s wages and breached the Claimant’s contract of employment by failing to pay the Claimant’s holiday entitlement outstanding at the time his employment terminated. 2) The Respondent shall pay the Claimant the sum of £541. The judgment sum is calculated as follows: a) The Claimant was entitled to 8 days’ holiday not taken when his employment terminated. b) At a daily rate of £84, the Claimant was entitled to £672 in holiday pay. c) The Respondent has paid the Claimant £131 in respect of holiday pay owing, leaving a remaining balance of £541.[6]On 21 January 2024 the Claimant wrote to the Employment Tribunal: Dear Judge Barrett, I trust this letter finds you well. I am writing to provide an update following the resolution of my court case in December, wherein I won my case against NL Recruitment Ltd. However, regrettably, I am yet to receive the rightful compensation from NL Recruitment Ltd. Despite my earnest attempts to contact them through their website, I have not managed to do so. Subsequent investigations have revealed challenges in locating the company on Companies House. Notably, I discovered that the Director and owner, Mr. Nick Lambeas, maintains multiple businesses with similar names, as outlined in Appendix A. It has come to my attention that NL Recruitment Ltd might be employing different names on legal documents and their website, possibly to obscure the genuine identity of their business. In support of this claim, I present Appendix B, featuring a screenshot of their website clearly displaying in the footer the company name as “NL Recruitment Ltd.” I emphasize that this is not an oversight on my part; the provided company name to the court is accurate. In light of these circumstances, I respectfully seek your guidance on the appropriate course of action to pursue this matter further. Yours faithfully, Jack Pearce[7]The Claimant appended a list of appointments on the Companies House website under Mr Lambeas’ name, showing there was no company registered as “NL Recruitment Limited”, although there was a company called “N L Recruit Ltd” which was dissolved. The Claimant also enclosed a screenshot of the NL Recruitment Limited website.[8]On 10 April 2024, the Tribunal wrote to the Claimant, NL Recruitment Limited and Mr Nikolaos Lambeas as follows: EXTENSION OF TIME GRANTED FOR RECONSIDERATION OF JUDGMENT Employment Tribunals Rules of Procedure 2013 Employment Judge Barrett has decided to treat the claimant’s letter of 21 January 2024 as an application under rule 70 of the Employment Tribunal Rules for reconsideration of her judgment dated 10 December 2023, or alternatively she proposes to reconsider the judgment of her own initiative. The claimant’s letter was received more than 14 days after the date on which the decision was sent to the parties, which is the usual timeframe for a reconsideration application provided for by rule 71 of the Employment Tribunal Rules. However, having considered the reasons for the delay, Employment Judge Barrett considers that it is in the interests of justice to extend time. The Employment Judge’s provisional view is that the judgment should be reconsidered because it appears that NL Recruitment Limited may not be the correct respondent to the claim, and that Mr. Nikolaos Lambeas may in fact be the correct respondent, as the person who entered into a contract of employment with the claimant. Rule 34 of the Employment Tribunal Rules provides that “The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and may remove any party apparently wrongly included.” If the Employment Judge reconsiders her judgment, she may decide to vary her judgment to substitute Mr. Nikolaos Lambeas for NL Recruitment Limited as the respondent to the claim. Rule 35 of the Employment Tribunal Rules provides that “The Tribunal may permit any person to participate in proceedings, on such terms as may be specified, in respect of any matter in which that person has a legitimate interest.” It appears to the Employment Judge that Mr. Nikolaos Lambeas has a legitimate interest in the issues of(1) whether he should be substituted as the respondent; and if so substituted then(2) whether he should be liable for the judgment sum of £541 awarded by the judgment dated 10 December 2023. He is therefore permitted to address the Tribunal in correspondence and to attend any reconsideration hearing that may be listed. If either Mr. Nikolaos Lambeas or the current respondent NL Recruitment Limited thinks that the judgment should not be reconsidered, he or they must write to us, giving reasons, by 23 April 2024 The claimant, respondent and Mr. Nikolaos Lambeas are asked to write to us by 23 April 2024 setting out their views on whether the application for reconsideration can be determined without a hearing.[9]Neither NL Recruitment Limited for Mr Lambeas responded to that letter. The Claimant wrote to the Tribunal asking for the name of the Respondent to be changed on the judgment. Applicable legal principles[10]The tribunal's powers concerning reconsideration of judgments are contained in rules 70 to 73 of the Employment Tribunals Rules of Procedure 2013. A judgment may be reconsidered where “it is necessary in the interests of justice to do so.”[11]Applications are subject to a preliminary consideration. They are to be refused if the judge considers there is no reasonable prospect of the decision being varied or revoked. If not refused, the application may be considered at a hearing or, if the judge considers it in the interests of justice, without a hearing. The process is set out at rule 72 as follows:(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.[12]Upon reconsideration the decision may be confirmed, varied or revoked and, if revoked, may be taken again (rule 70).[13]As set out in the letter above, the Rule 34 of the Employment Tribunal Rules provides that: The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and may remove any party apparently wrongly included.[14]When tasked with ascertaining the identity of a claimant’s true employer, the approach for the Tribunal to take is set out in the EAT’s judgment in Clark v Harney Westwood and Riegels [2021] IRLR 528 at §52:a. Where the only relevant material to be considered is documentary, the question as to whether A is employed by B or C is a question of law.b. However, where (as is likely to be the case in most disputes) there is a mixture of documents and facts to consider, the question is a mixed question of law and fact. This will require a consideration of all the relevant evidence.c. Any written agreement drawn up at the inception of the relationship will be the starting point of any analysis of the question. The Tribunal will need to inquire whether that agreement truly reflects the intentions of the parties.d. If the written agreement reflecting the true intentions of the parties points to B as the employer, then any assertion that C was the employer will require consideration of whether there was a change from B to C at any point, and if so how. Was there, for example, a novation of the agreement resulting in C (or C and B) becoming the employer?e. In determining whether B or C was the employer, it may be relevant to consider whether the parties seamlessly and consistently acted throughout the relationship as if the employer was B and not C, as this could amount to evidence of what was initially agreed.[15]This approach follows well-established case law including Autoclenz Ltd v Belcher [2011] ICR 1157 as applied in Dynasystems for Trade and General Consulting v Moseley UKEAT/0091/17/BA, which allows the Tribunal to look beyond the terms of the initial written agreement in order to ascertain what was agreed as a matter of reality. Discussion and conclusion[16]Notice having been sent to the parties in compliance with rule 71(1) setting out a provisional view and inviting representations as to whether the parties sought a hearing, I considered that a hearing was not necessary in the interests of justice. The parties have had a reasonable opportunity to make further written representations and only the Claimant has done so, asking the Tribunal to substitute the name of the Respondent.[17]The Claimant believed at the time he entered into an employment contract to perform work at Comdata that his employer would be Mr Lambeas’ company, NL Recruitment Limited. He was not provided with a written agreement drawn up at the inception of the relationship. He has since discovered that Mr Lambeas did not have a registered company in that name. The offer of employment was made by Mr Lambeas. Although the Claimant was subsequently provided with written contracts in the names of two other companies, these post-dated the formation of his employment contract and he did not understand nor agree that there would be a novation of his employment to these companies; rather, he was given to understand that they would pay him on behalf of Mr Lambeas. After the Claimant commenced working, throughout his employment and after its termination all communication regarding the Claimant’s employment was with Mr Lambeas personally. The parties seamlessly and consistently acted throughout the relationship as if the employer was Mr Lambeas.[18]I therefore conclude that Mr Lambeas was the Claimant’s employer. Under rule 34, there is an issue between Mr Lambeas and the Claimant falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; namely, the Claimant’s claim for outstanding holiday pay. That issue was determined as against NL Recruitment Limited in the rule 21 judgment dated 10 December 2024. However, it is in the interests of justice to vary that judgment so that the correct employer is named as the Respondent. Therefore, the judgment is varied to substitute Mr Lambeas as the Respondent to the claim.