Employment Judge MaxwellIn person for claimantMr Paulin (instructed by Counsel) for respondentDate 29 June 2023
JUDGMENT
It is just and equitable to extend time for the Claimant’s claim under section 123 of the Equality Act 2010.
REASONS
Conclusion
[1]The Claimant complains of disability discrimination. He says that he received an offer from Trant Engineering on 14 May 2021 to work for them on a contract in the Falkland Islands. He had worked at this location previously in June 2019, January 2020 and July 2020. On this occasion, however, the offer was withdrawn because of his diabetes.[2]The Claimant contacted ACAS on 31 December 2021, a certificate was issued on 11 January 2022 and he presented his claim on 11 February 2022. The Response[3]The Respondent says that on 12 July 2021, it decided not to approve the Claimant to work for its contractor Trant Engineering Ltd, due to limited healthcare resources on the Falkland Islands. The Respondent carries out health screening of contractors so as to be satisfied they are medically supportable whilst working at that location. The Claimant was informed of this decision on 16 July 2021.
The Issues
[4]The Respondent says the Claimant’s services were provided by way of an employment agency to its contractor and for that reason, it denies any employment relationship or other basis upon which liability could be established under the Equality Act 2010.[5]Separately, the Respondent contends the Tribunal has no jurisdiction because the Claimant’s claim is out of time. The Respondent said that as the decision about which the Claimant complains was made on 12 July 2021, he had until 11 October 2021 in which to bring a claim in the Tribunal. As the limitation period had already expired, time was not extended by the Claimant engaging in ACAS conciliation. In the circumstances, his claim on 11 February 2022 was four months late. Evidence[6]I was provided with a bundle of documents running to 99 pages, including the index. This comprised the pleadings and case management orders, a screenshot and a copy of one of the Respondent’s policy documents.[7]I heard oral evidence under oath from the Claimant. I invited him to confirm the truth of the information he had provided in his claim form and asked him a number of questions about the circumstances in which he came to present his claim when he did. Mr Paulin cross-examined the Claimant on behalf of the Respondent. Facts[8]The Claimant found out about the Respondent’s decision on 16 July 2021, when he was informed the Respondent’s Medical Officer would not allow him to travel to the Falkland Islands. There is no evidence before me today on which I can make finding about when the Respondent made the relevant decision, although I am aware it’s position is this was on 12 July 2021.[9]Following this turn of events, in August 2021 one of the Claimant’s friends suggested to him that he should bring a claim. The Claimant decided to look into this and carried out some research online in mid-September 2021. At this time, he found his way to the ACAS website and discovered there was a three-month time limit for bringing a claim in the Employment Tribunal. This is something the Claimant wished to do, although he found it difficult to take it forward. He has some difficulty with reading and writing. The Claimant describes himself as being dyslexic. Whilst he might then have sought some support in this from his brother, he decided not to. The Claimant explained and I accept that he is embarrassed by his difficulty with reading and writing. He tries to find ways around the difficulties he encounters. The Claimant works long hours in a physically demanding role.[10]The Claimant works far away from home most of the time. He went back home to South Shields, in late December 2021. On Christmas Day, his brother asked him what he had done about bringing a claim. Prompted by this the Claimant contacted ACAS. He was later assisted in presenting his claim, which was done on 11 February 2022.[11]The Claimant’s claim was circa 4 months late (with time running from either 11 or 16 October 2021). Law[12]Section 123(1) of the Equality Act 2010 (“EqA”) provides: (1) Subject to sections 140A and 104B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.[13]An Employment Tribunal applying section 123 has a broad discretion. A useful summary of the case law and multifactorial approach was given by the EAT in Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] ICR 283 per HHJ Peter Clark: 11. A useful starting point is the judgment of Smith J in British Coal Corpn v Keeble [1997] IRLR 336. That was a case concerned with the just and equitable extension of time question in the context of a sex discrimination claim. Smith J, sitting with members, in allowing the employers' appeal and remitting the just and equitable extension question to the employment tribunal, suggested that in exercising its discretion the tribunal might be assisted by the factors mentioned in section 33 of the Limitation Act 1980, the provision for extension of time in personal injury cases. The first of those factors, as Mr Peacock emphasised in the present appeal, is the length of and reasons for the delay in bringing that claim. 12. However, as the Court of Appeal made clear in Southwark London Borough Council v Afolabi [2003] ICR 800, in deciding the just and equitable extension question, a tribunal is not required to go through the matters listed in section 33(3) of the Limitation Act 1980, provided that no significant factor is omitted. That principle was more recently reinforced in a different context by the Court of Appeal in Neary v Governing Body of St Albans Girls' School [2010] ICR 473, where the leading judgment was given by Smith LJ. There, it was held that a line of appeal tribunal authority requiring a tribunal to consider the factors in the CPR, rule 3.9(1), as it then was, when deciding whether or not to grant relief from sanction following non-compliance with an unless order, was incorrect. Following Afolabi it is sufficient that all relevant factors are considered. 13. Section 33(3) of the 1980 Act does not in terms refer to the balance of prejudice between the parties in granting or refusing an extension of time. However, Smith J referred to the balance of prejudice in Keeble, para 8, to which Mr Peacock has referred me. That, it seems to me, is consistent with the approach of the Court of Appeal in the section 33 personal injury case of Dale v British Coal Corpn, where Stuart-Smith LJ opined that, although not mentioned in section 33(3), it is relevant to consider the plaintiff's (claimant's) prospect of success in the action and evidence necessary to establish or defend the claim in considering the balance of hardship. That passage neatly brings together the two factors which, Mr Dutton submits, were not, but ought to have been, considered by this tribunal in the proper exercise of its discretion: prejudice and merits. I shall return to those factors in due course.[14]What has emerged from the cases thus far reviewed, it seems to me, is that the exercise of this wide discretion (see Hutchison v Westward Television Ltd [1977] ICR 279 ) involves a multi-factoral approach. No single factor is determinative.[15]Returning to the balance of prejudice, this concept arises elsewhere in our jurisdiction. For example, in deciding applications to amend the form ET1, the Selkent principle: Selkent Bus Co Ltd v Moore [1996] ICR 836. 14. Importantly, there is no presumption that time will be extended; see Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 343 CA, per Auld LJ:[25]It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. […] 15. The Court of Appeal considered the exercise of this discretion again in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, per Leggatt LJ: 18. First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] EWCA Civ 15; [2003] ICR 800, para 33. […] 19. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). Conclusion 16. The reason for the delay in this case is that after having undertaken some initial online research in mid-September 2021, found the ACAS website and discovered there was a 3-month time limit, the Claimant was put off because he was busy at work, thought it would be too difficult to prepare the paperwork and was too embarrassed to ask his brother for help. Prompted and supported by his brother, following a conversation on Christmas Day the Claimant began to take the steps to present a claim. Whilst this explanation would not show a lack of reasonable practicability that is not the test I must apply. The sequence of events is an understandable one and I am satisfied the Claimant faced some obstacles, although these were far from insurmountable. 17. Mr Paulin did not say the Respondent was prejudiced by the delay and it is difficult to see how that would be so, as the decision made by the Respondent’s medical officer must have been documented. 18. The other potentially relevant consideration was merits. Mr Paulin referred me to the recent EAT decision Kumari v Greater Manchester Mental Health NHS Trust in connection with the proposition that I should take into account merits. This is not a new principle and I accept that in an appropriate case, the apparent merits (if these were sufficiently clear) would be a relevant consideration. Mr Paulin argued the Claimant would not be able to show he was an employee, worker or contract worker. In the course of being cross-examined, the Claimant said he was self-employed, working for an agency, Fusion People, who supplied his services to Trant Engineering Limited. He did not agree that Fusion supplied him to PSI, who then in turn supplied him to Trant. The Claimant agreed he did not have any contract with the Respondent. Mr Paulin said the Claimant’s claim lacked merit because he was not an employee or worker (i.e. within the extended definition of employment under EqA section 83) or contract worker (EqA section 41). 19. I have given careful consideration to the Respondent’s argument on merits. The Claimant appears very unlikely to be in employment, within the meaning of EqA section 83. The position on section 41 is, however, less clear. The Respondent has provided no documentary or witness evidence to show the nature of the various contractual relationships leading from the Claimant to the Respondent. I have not been referred to any case law on the interpretation of EqA section 41 or whether this can apply where there is an additional “link in the chain” such as an agency (Fusion) between the Claimant and the party the Respondent contracted with (Trant). Nor do I consider it safe to rely upon the Claimant simply having agreed he was self-employed, in circumstances where it appears he was working on a succession of assignments doing the same of similar work for clients of that agency. 20. Taking all of these matters into account, I have decided it is just and equitable to extend time. As far as the Claimant’s reason for delay is concerned, his explanation is understandable even if it is capable of some criticism. There would be no prejudice to the Respondent in facing the claim presented when it was, as opposed to when it should have been. As far as merits are concerned, whilst he has little or no prospect of showing he was in employment per EqA section 83 (and I would not have extended time on that basis) the position on section 41 was not sufficiently clear today and that requires a determination. EJ Maxwell Date: 16 November 202217/12/2022 N Gotecha[1]The claimant was not in employment within the meaning of the Equality Act 2010 section 83.[2]The claimant was not a contract worker and the respondent was not a principal within the meaning of the Equality Act 2010 section 41.[3]The claimant’s claims are dismissed in their entirety for want of jurisdiction.[4]Following a case management hearing on 22 November 2022 this preliminary hearing was listed to decide the following two issues: 4.1. was the claimant in employment within the meaning of the Equality Act 2010 section 83; 4.2. was the claimant a contract worker and the respondent a principal, within the meaning of the Equality Act 2010 section 41.
The Hearing
[5]The hearing took place via CVP. At one point the claimant dropped out and immediately reconnected. There were no difficulties with communication or connection.[6]I heard oral evidence from the claimant and, for the respondent, Mr Kerr.
The Law
[7]Section 41 Equality Act 2010: Contract workers (1)A principal must not discriminate against a contract worker— (a)as to the terms on which the principal allows the worker to do the work; (b)by not allowing the worker to do, or to continue to do, the work; (c)in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; (d)by subjecting the worker to any other detriment. (2)A principal must not, in relation to contract work, harass a contract worker. (3)A principal must not victimise a contract worker— (a)as to the terms on which the principal allows the worker to do the work; (b)by not allowing the worker to do, or to continue to do, the work; (c)in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; (d)by subjecting the worker to any other detriment. (4)A duty to make reasonable adjustments applies to a principal (as well as to the employer of a contract worker). (5)A “principal” is a person who makes work available for an individual who is— (a)employed by another person, and (b)supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that other person is a party to it). (6)“Contract work” is work such as is mentioned in subsection (5). (7)A “contract worker” is an individual supplied to a principal in furtherance of a contract such as is mentioned in subsection (5)(b).[8]Section 83 Equality Act 2010: (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; (b)Crown employment; (c)employment as a relevant member of the House of Commons staff; (d)employment as a relevant member of the House of Lords staff. (3) This Part applies to service in the armed forces as it applies to employment by a private person; and for that purpose— (a)references to terms of employment, or to a contract of employment, are to be read as including references to terms of service; (b)references to associated employers are to be ignored. (4)A reference to an employer or an employee, or to employing or being employed, is (subject to section 212(11)) to be read with subsections (2) and (3); and a reference to an employer also includes a reference to a person who has no employees but is seeking to employ one or more other persons. (5)“Relevant member of the House of Commons staff” has the meaning given in section 195 of the Employment Rights Act 1996; and such a member of staff is an employee of— (a)the person who is the employer of that member under subsection (6) of that section, or (b)if subsection (7) of that section applies in the case of that member, the person who is the employer of that member under that subsection…
Findings of Fact
[9]There was limited dispute about the facts that are relevant to the issues that I have to decide today.[10]My findings of facts relating to the general background are as follows: 10.1. The respondent entered into a contract with Trant Engineering Services Ltd (“Trant”) to build a new power station on the Falkland Islands; 10.2. Trant relied on an employment agency, Fusion People, to procure individuals in order to provide the labour that was required for the power station project; 10.3. the individuals who were required to go to the Falkland Islands for the project were subject to approval from the respondent’s medical officer; 10.4. in July 2021 the claimant was denied medical approval to travel to the Falkland Islands by the respondent’s medical officer because he had type II diabetes; 10.5. the claimant was a scaffolder; 10.6. the claimant had previously worked in the Falkland Islands in relation to this project including for a period of approximately three months around June 2020. Despite having type II diabetes at those times, no issue had been raised by the respondent’s medical officer.[11]There are a number of parties that are involved in the contracting arrangements relating to the project and who worked or provided work for it. In relation to those contractual arrangements, I make the following findings: 11.1. as is set out above the respondent had entered into a contract with Trant to build a new power station on the Falkland Islands. Under that contract Trant made arrangements to procure the labour and materials to carry out the project; 11.2. Trant sourced labour for the project, which included individuals such as the claimant, via an employment agency called Fusion People; 11.3. Fusion People required the people it sourced to sign a contract with Simplify Contracting Services Ltd (“Simplify”) when they commenced working/providing services; 11.4. the intention was that the claimant would sign a contract with Simplify (the Simplify Contract which I have identified below) on the first day or within the first few days that he started work in the Falkland Islands on the project. It is not disputed that this contract was never signed. It would have been signed if the claimant had arrived at the Falkland Islands airport on the date he was expected. However, the claimant was not permitted to fly to the Falkland Islands because the medical officer of the respondent refused him. Therefore, no contract was signed; 11.5. the bundle contained a document which is called Contract for the Supply of Construction Industry Services which is between Simplify and the claimant (the “Simplify Contract”). The date has been redacted for some reason I do not understand. Simplify is referred to as the contractor and the claimant is referred to as a subcontractor; 11.6. the Simplify Contract contains a number of terms to which I was referred this includes but is not limited to the following: 11.7. there was no dispute that these terms did not differ from the terms on which the claimant had previously provided services; 11.8. the proposed arrangement was that the claimant’s services were to be supplied to Trant via a company called SMP Support Services Ltd trading as Simplify. The result is that Trant would have paid Simplify and Simplify would have paid the claimant. He was paid through CIS arrangements. The claimant confirmed that this is what had happened previously and he had a contract with Simplify. He needed to engage in this arrangement to be paid. I accept the claimant’s evidence in this regard.[12]I find that to satisfy the definition of employment set down in section 83 of the Equality Act 2010 the claimant’s relationship with the respondent must be that he was under a contract to personally do work.[13]The claimant was not under a contract personally do work for the respondent. The only contract that was proposed and would have existed was the Simplify Contract which was between the claimant and Simplify. Even if the respondent had been some sort of end user there was still not a contract between the respondent and the claimant to personally do work.[14]I find that the claimant was not employed within the meaning of section 83 of the Equality Act 2010. Section 41 Equality Act 2010[15]Section 41 is designed to apply the Equality Act 2010 to an individual who is part of somebody else’s business, rather than somebody who is carrying on a business on their own account, in furtherance of a contract of which the principal is a party. The fact that there is more than one person in the chain of supply between the individual and the principal does not prevent somebody becoming a contract worker as long as the line of contracts is unbroken. The principal, who is the end user, is somebody that can have obligations under the Equality Act 2010.[16]I find that the claimant is not a contract worker and the respondent is not a principle within the meaning of section 41 of the Equality Act 2010 because the claimant is not an employee of anybody. The claimant is self-employed and he has a contract of services with Simplify. If the contract of services with Simplify was a contract for him to do the work personally, the claimant would have been a contract worker however, in this situation I have found that the claimant did not have a contract with Simplify for him to do the work personally.[17]I find that the claimant did not have a contract to do the work personally for Simplify for the reasons set out below: 17.1. On the face of it the terms of the Simplify Contract do not create a relationship under which the claimant was contracted personally to do work. This is evident from the terms I have set out above. They provide, for example that the appellant is self-employed and in business on his own account, he must be able to work without supervision or direction, he is responsible for his own negligent acts, Simplify is not liable for the services provided by the subcontractor and at 4.1.5 the claimant is expressly permitted to provide a substitute. However, I have also considered the situation as a whole after applying the guidance from case law such as Ready Mix Concrete v Minister of Pensions [1968] 2QB 497. I have given consideration to the Supreme Court judgement in Uber v Aslam [2021] UKSC 5 and its rejection of Uber’s argument that the applicable written agreements are the starting point. I consider that this point is wellestablished from case law such as Autoclenz Ltd v Belcher [2011] UKSC 41. At para 87 the Supreme Court stated the following: “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””. 17.2. In addition to the Simplify Contract, I heard evidence from Mr Kerr that the contract was not signed until the first day or shortly after because sometimes individuals did not turn up, sometimes they provided a substitute for reasons such as having another commitment or being able to obtain a higher rate of pay somewhere else. Mr Kerr’s evidence about how the relationship operated was consistent with the terms of the Simplify Contract. In cross examination, the claimant also accepted that it was up to him to do the scaffolding work properly and he was not under anybody else’s control. He did not dispute Mr Kerr’s evidence about substitutions. 17.3. I was not provided with any evidence from either side about the level of control, if any, the respondent operated in respect of individuals such as the claimant. Obviously, as a result of the basis of the claimant’s case the respondent did operate some control because it effectively vetoed the claimant working or providing services to the project. However, there was no other evidence that the respondent operated any control on a day-today basis about work the claimant had done in the past on the project or was intended to do if he had been allowed to in 2021.[18]I recognise that my conclusions indicate that the claimant would have no protection against theoretical discrimination by the end user, I find that this is consistent with case law such as Muschett v HM Prison Service and Brook Street (UK) Ltd, EAT [2010] UKEAT/0132/08/LA where the agency worker's discrimination claims failed against both the employment business and the enduser client (akin to the respondent on these facts). In that case it was held that: 18.1. The worker was not "employed" by the employment business for discrimination purposes, as there was no mutuality of obligation between him and the employment business and his contract did not oblige him to perform work personally for that business. This is similar to this case. 18.2. As he was not employed by the employment business, the worker did not fall within the definition of a "contract worker" of the end-user. This is similar to this case. 18.3. Further, the worker was not employed by the end-user. This is similar to this case.[19]Therefore, as I have found that even if the claimant had signed the Simplify Contract, which he did not, he was not a contract worker, the fact that he did not sign the Simplify Contract further means that he cannot benefit from the protections of s41 of the Equality Act 2010.[20]The claimant’s claims are dismissed for want of jurisdiction. ___J Bartlett