Mrs C J Yates v Morgan Hunt and others: 3303432/2022

EMPLOYMENT TRIBUNALS

Case No 3303432/2022

Between

Mrs C J YatesClaimant

Morgan Hunt and othersRespondent

Before

Employment Judge M Warren

In person for claimant

Date 1 August 2023

REASONS

[1]Mrs Yates’ working relationship with The London Borough of Hounslow, (Hounslow) began on 10 October 2019 and ended on 10 March 2022. By a claim form submitted on 17 March 2022, she has brought complaints of automatic unfair dismissal for having made protected disclosures, (whistle blowing), of discrimination on the grounds of religion or belief and for unpaid wages. She has not submitted an Early Conciliation Certificate, but at page 2 Section 2.3 of the ET1 she has ticked the box to indicate her complaint of unfair dismissal includes an Application for Interim Relief, (for which an Early Conciliation Certificate is not required).

[2]The parties were notified of this Hearing by letter dated 22 March 2022.

[3]As is usually the case in these situations, no responses have been received yet from the Respondents. Documents Before Me Today

[4]Due to a fire at the Norwich Employment Tribunal building over the weekend, at short notice this hearing was conducted by Cloud Video Platform (CVP) from my home. I did not therefore have the Tribunal file. There is no bundle, (no criticism there, none was ordered) and the documents which I had before me were as follows:4.1 A copy of the Claimant’s claim form;

4.2 A copy of the Tribunal’s letter to the parties giving notice of this hearing, dated 22 March 2022;

4.3 A Contract of Employment between Umbrella-Company Limited and Mrs Yates;

4.4 A Health and Safety Temporary Workers Handbook for Morgan Hunt;

4.5 A Line Candidate Report from Morgan Hunt;

4.6 A document entitled, “Scrutiny Review of Non-Permanent Staff for Hounslow” dated 27 January 2011; and

4.7 Mrs Yates’ written grievance dated 8 March 2022.

Relevant Law

[5]Section 128 of the Employment Rights Act 1996, (“ERA”), provides that an employee who complains to an Employment Tribunal of automatic unfair dismissal for having made protected disclosures pursuant to s.103A may apply to the Tribunal for Interim Relief. Such an Application must be made within 7 days of the effective date of termination.

[6]Interim Relief is, in short, an order that the employer either re-instate the dismissed employee pending the outcome of the claim for unfair dismissal, or continue to remunerate the employee in accordance with her Contract of Employment pending that outcome.

[7]The application must be determined as soon as practicable after receipt by the Tribunal.

[8]Pursuant to s.129, such an application shall succeed if it appears to the Tribunal that it is likely that on determining the complaint, the Tribunal will find that the reason (or if more than one, the principal reason) for the dismissal was that the Claimant had made protected disclosures.

[9]The expression, “likely” means, “a pretty good chance of success”, see Tapplin v Shippam Limited

[1978] IRLR450

[10]In Dandpat v University of Bath UK

EAT/0408/09

the then President of the EAT, Mr Justice Underhill, (as he then was) set out that he had been invited to revisit Taplin. Declining that invitation, he said: “We see nothing in the experience of the intervening period to suggest that it should be reconsidered. On ordinary principles we should be guided by it unless we are satisfied that it is plainly wrong. That is very far from being the case. We do in fact see good reasons of policy for setting the test comparatively high in the way in which this Tribunal did, in the case of applications for interim relief. If relief is granted the Respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing and pay the Claimant until the conclusion of the proceedings. That is not a consequence that should be imposed lightly”.

[11]In London City Airport v Chacko

[2013] IRLR 610

, Mr Recorder Luba QC said that the question is whether it appears to the tribunal that the case has a pretty good chance, based upon an expeditious summary assessment on how the case appears on the material available, doing the best it can on the untested evidence advanced by each party. Necessarily, there will be a far less detailed scrutiny of the parties’ cases than would take place at the final hearing.

[12]In Al Qasimi v Robinson

UKEAT/0283/17/JOJ

HHJ Eady QC, (as she then was) similarly described the role of the Tribunal: ‘By its nature, the application had to be determined expeditiously and on a summary basis. The [tribunal] had to do the best it could with such material as the parties had been able to deploy at short notice and to make as good an assessment as it felt able. The employment judge also had to be careful to avoid making findings that might tie the hands of the [tribunal] ultimately charged with the final determination of the merits of the points raised. His task was thus very much an impressionistic one: to form a view as to how the matter looked, as to whether the claimant had a pretty good chance and was likely to make out her case, and to explain the conclusion reached on that basis; not in an over-formulistic way but giving the essential gist of his reasoning, sufficient to let the parties know why the application had succeeded or failed given the issues raised and the test that had to be applied.’

Discussion

[13]I must emphasise that I am not making findings of fact. Mrs Yates’ claim form is scant on detail. I have discussed with her today the nature of her case in relation to the claim for unfair dismissal, so that I can understand it before reaching a view on its prospects of success. Broadly speaking, I set out her case below.

[14]In 2019, Mrs Yates learned of a vacancy for a Community Engagement Officer with Hounslow. She was told that in order to apply for that post, she would have to submit her application through an employment agency, Morgan Hunt.

[15]Mrs Yates registered with Morgan Hunt on 19 September 2019. She had the option of being paid through Morgan Hunt or via an umbrella company which at that time was known as, “Six Cats”. She was placed with Hounslow, starting work on 10 October 2019. She was paid by Six Cats, who in 2020 went out of business and were replaced by the Second Respondent, Umbrella-Company Limited. I note at this point as an aside, that the Second Respondent has been named on the claim form as, “Umbrella.co.uk”; the correct name of the Second Respondent is clearly Umbrella-Company Limited and the name of the Second Respondent should be amended accordingly.

[16]I was provided with a copy of Mrs Yates’ contract with the Second Respondent. It describes itself as a Contract of Employment incorporating particulars required by the Employment Rights Act 1996. Her duties are described as that of a Community Engagement Officer and she is required to perform such assignments as may from time to time be allocated to her, (clause 1.4.1). She is obliged to carry out work allocated to her, (clause 1.4.8). Her place of work may be such place throughout the United Kingdom as may be specified from time to time, (clause 1.5.1). She will be paid by the Second Respondent, (clause 3). She will be paid rolled up holiday pay by the Second Respondent, (clause 4). She would receive statutory sick pay from the Second Respondent, (clause 6). The Second Respondent is to provide the required auto-enrolment pension, (clause 8). Clause 13 provides that termination of an assignment to a client does not terminate the Contract of Employment. As far as I can see, these and all other provisions of the contract are consistent with this being a genuine Contract of Employment. There are provisions for notice to terminate by both parties, (clause 13.2).

[17]Mrs Yates’ employment relationship with the Second Respondent has never been terminated.

[18]In respect of her complaint of automatic unfair dismissal for having protected disclosures, Mrs Yates clarified to me that she relies upon two disclosures:19.1 That at a meeting with a Christine Acock, which she think took place on 9 February 2022, she disclosed to Ms Acock that:19.1.1 Residents were scared to go to the dining hall because they were being bullied by other residents;

19.1.2 A resident I will identify as, “J” complained of not being able to walk properly and on investigation, it was discovered that he had toe nails that were inordinately long, causing him pain;

19.1.3 That another resident had threatened suicide because they were depressed; and

19.1.4 That before Ms Acock’s employment had begun, an employee had behaved violently in front of residents, that person had been dismissed, but had subsequently been re-instated.

19.2 To the Care Quality Commission on 14 February 2022:19.2.1 She repeated what she had told Ms Acock on 9 February 2022, and

19.2.2 She said that Ms Acock was not treating her disclosures seriously.

[19]Mrs Yates says that Hounslow were aware of her disclosures to the CQC because they were discussed with her by a member of Hounslow’s Safeguarding Team called Vivienne.

[20]Mrs Yates confirmed to me that she was not relying upon her Grievance of 8 March 2022 as a protected disclosure.

[21]Mrs Yates says that she began a period of sickness absence due to severe IBS for which she was initially hospitalised. She was certified as unfit for work for a period of four weeks, to 21 March 2022.

[22]On 9 March 2022, Mrs Yates says that she attempted to log in using her laptop and found that she was denied access. She was attempting to log in so as to complete a grievance form for Hounslow. Upon making enquiries, she was told by a Mohammed Patel, Interim Extra Care Specialist Manager with Hounslow, that IT had been informed that she had left because as she was not at work, the Respondent Hounslow needed somebody to perform her role and they did not want to pay two sets of wages. At that time, she says that she was in receipt of statutory sick pay.

[23]Mrs Yates said to me that she thought that she had been dismissed because she was on sick leave.

Conclusions

[24]On the documents before me, Mrs Yates’ appears to be the employee of Umbrella-Company Limited, (the Second Respondent).That employment appears not to have been terminated. She does not appear to have been an employee of Hounslow.

[25]Mrs Yates’ own commentary to me this morning is consistent with that being the legal position.

[26]An agency worker does not become an employee of the end user by reason of the mere passage of time. I did not find the “Scrutiny Review of Non-Permanent Staff” of January 2011 a helpful document. It pre-dates Mrs Yates’ working relationship with Hounslow by nine plus years and merely sets out expressions of views on the Borough’s reliance on nonpermanent staff, (agency workers), as a source of concern. It does not help me at all with the nature of the relationship between Mrs Yates and Hounslow.

[27]As for the reason behind the termination of the relationship, (the assignment of Mrs Yates to Hounslow) may be because of the protected disclosures, but it may also be because she was absent from work for a prolonged period of time.

[28]Doing the best I can on the material available to me, I cannot say that Mrs Yates has a pretty good chance of:28.1 Showing that she was an employee of Hounslow, (to whom the disclosures were made and the only one of the three Respondents that has terminated their relationship); or even if she was

28.2 The Tribunal finding that the reason for the termination of that relationship by Hounslow was because of the two disclosures and not because of her absence.

[29]I have stressed to Mrs Yates that I am not making a finding that she will not succeed, I am merely making a finding that I cannot conclude that she has a pretty good chance of succeeding.

Conclusions

[1]The claimant’s claim of unlawful deductions from wages against the first respondent (Morgan Hunt UK Limited) is dismissed on withdrawal.

[2]All other elements of the claimant’s claim against any respondent are struck out except for a claim of unfair dismissal (under s103A of the Employment Rights Act 1996 only) against the second respondent (Umbrella-Company Limited). JUDGMENT (on reconsideration) having been sent to the parties on 21 May 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:

Conclusions

[1]I am now considering the claimant’s application for reconsideration of my decision to strike out her claims against the London Borough of Hounslow.

[2]It is agreed between the parties that this decision was based on the claimant not having undertaken early conciliation with the London Borough of Hounslow (although that was not the only argument put forward by the London Borough of Hounslow at the hearing). It is also agreed that the claimant had, in fact, undertaken early conciliation with the London Borough of Hounslow. Shortly after the hearing at which I gave the relevant judgment the claimant produced an early conciliation certificate whose authenticity is accepted by the London Borough of Hounslow.

[3]There are some complications. The early conciliation certificate was only obtained after the claimant had submitted her claim. Her claim form was submitted on 17 March 2022 in respect of a dismissal said to have occurred on 10 March 2022. Her early conciliation certificate shows her start and end dates of early conciliation as being 8 May and 10 May 2022. Despite some suggestions from her that her original ET1 was accompanied by an early conciliation certificate in respect of the London Borough of Hounslow, her claim form as originally submitted says that she does not have an early conciliation certificate and apparently proceeds on the basis that she does not need one because her claim included a claim for interim relief.

[4]What ought to have happened on the original submission of her claim is that the claimant’s claim against the London Borough of Hounslow ought to have been rejected by the tribunal on the basis that she had not provided an early conciliation certificate number and to the extent that she relied on the exemption for a claim of unfair dismissal involving interim relief that could not apply as there was more than a claim of unfair dismissal against the London Borough of Hounslow (see EJ Eeley’s order of 1 February 2023 for a description of the claims the claimant originally sought to bring against the London Borough of Hounslow). That did not happen, and instead the claim proceeded directly to an (unsuccessful) interim relief hearing.

[5]We are thus in the territory contemplated in Sainsbury’s Supermarkets v Clarke

[2023] EWCA Civ 386

, in which Bean LJ held at para 42 of the judgment that: “If no such [initial] rejection occurs it is not in my view open to a respondent to argue at a later stage that the claim should have been rejected. The respondent’s remedy is to raise any points about non compliance with the Rules in their form ET3, or in appropriate cases at a later stage, and to seek dismissal of the claim … or apply for it to be struck out.”

[6]That is, of course, exactly what the London Borough of Hounslow did, and their application succeeded. It is the judgment on that successful application that I am now asked to reconsider.

[7](I note that Bean LJ goes on to speak of the possibility of waiver under rule 6, while also endorsing the decision of the EAT in Cranwell v Cullen UKEATPAS/0046/14 to the effect that the tribunal was correct in striking out a claim where there had been no early conciliation ahead of the claim being lodged and no exemption applied).

[8]That brings us to the point of the original judgment. The claimant’s claim against the London Borough of Hounslow was struck out or dismissed on the basis that she had not undergone early conciliation against the London Borough of Hounslow and no exemption from early conciliation applied.

[9]The claimant’s application for reconsideration is based on her having shortly after the hearing found and produced an early conciliation certificate against the London Borough of Hounslow which post-dates the submission of her claim.

[10]The claimant had known since March 2023 of the application from the London Borough of Hounslow and that it relied at least in part on her not having undertaking early conciliation in respect of them. It seems to me that even given the difficulties I have heard of from the claimant the obvious point at that stage for her to address was to look for and produce the early conciliation certificate at the point she knew the respondent was saying there was no early conciliation certificate, or by the hearing at the latest. She did not do so. She only looked for and found the early conciliation certificate after I had given my judgment. She was able to find it two or three days after I gave my judgment.

[11]The early conciliation certificate produced after the hearing is new evidence and thus would be subject to the test in Ladd v Marshall

[1954] 1 WLR 1489

– that is, for it to be considered the claimant would have to show that it could not have been obtained with reasonable diligence for use at the original hearing, was relevant and would probably have had an important influence on the hearing and was apparently credible.

[12]The latter two factors are less of a problem for the claimant than the first: whether it could have been obtained with reasonable diligence for use at the original hearing. I have already alluded to that earlier in these reasons. The claimant has always emphasised (and I accept) the personal difficulties she has been subject to during these proceedings, but she had four months’ notice that the lack of an early conciliation certificate was a matter that the London Borough of Hounslow were relying on in its application to strike out her claim. She did not produce it prior to the hearing but was able to find it within a few days of my judgment. That suggests to me that it could have been found with reasonable diligence prior to the hearing, and on that basis her new evidence does not meet the Ladd test and is not to be considered in this reconsideration decision. Accordingly, I refuse the claimant’s application for reconsideration of my decision. Approved by