: Employment Judge Hyams, sitting aloneDate 17 October 2022
JUDGMENT
[1]The claimant’s claim for unpaid wages is outside the jurisdiction of the employment tribunal. That is because it was made outside the primary time limit period of three months (extended as applicable by any period of early conciliation) and it was reasonably practicable to make it within that period.[2]The claimant’s claim of discrimination because of pregnancy or maternity is within the tribunal’s jurisdiction despite having been made outside that primary period. That is because it is just and equitable to extend time for the making of the claim.
REASONS
[1]The claimant’s claim form which was allocated the case number 3305960/2021 was the subject of the above determinations. A previous claim form was presented. That previous claim form was (in the circumstances which I describe below) allocated case number 3300382/2021. I refer to the latter claim form as “the first claim form”, and to the one which was the subject of the above determinations as “the second claim form”.[2]The first claim form was made well within the primary time limit and after an early conciliation certificate had been issued by ACAS in respect of the claims made in the claim form. However, the claim form was (in the circumstances which I describe below) rejected because the name on the ET1 claim form of the respondent was not that of the respondent on the early conciliation certificate.[3]The claimant’s evidence was that she did not know about that rejection until 20 April 2021. The second claim form was certainly issued on that day. That claim form was out of time in respect of all of the claims made in it unless time was extended for each of those claims.[4]There was a preliminary hearing in relation to the claims made in the second claim form on 6 January 2022. It was conducted by Employment Judge (“EJ”) Manley. In paragraph 1 of her record of that hearing, EJ Manley wrote this: “This matter requires a preliminary hearing for jurisdictional issues. It has been listed for one day before an employment judge at Watford Employment Tribunal, Radius House, 51 Clarendon Road, Watford, WD17 1HP to start at 10am or so soon thereafter as possible on Tuesday 21 June 2022. The issues that the preliminary hearing will be, as far as is just, the following:[1]Whether the claim has been presented in time, including the question of whether it was not reasonably practicable to present the unlawful deduction of wages claim in time and whether it is just and equitable to extend time for the pregnancy/maternity discrimination claim if the claim was presented late;[2]Whether the claimant was employed by the respondent between April 2019 until November 2020 under section 83 Equality Act 2010 to allow her pregnancy/maternity discrimination claim to proceed;[3]Whether the claimant is a worker for the respondent as defined by section 230(3) Employment Rights Act 1996 to allow her unlawful deduction of wages claim to proceed;[4]Any necessary case management issues should the claim or part of it proceed.”[5]I conducted that one-day hearing. During it, I heard oral evidence from the claimant and Ms Krupinska, her representative. They were both crossexamined by Ms Barnes. In what follows below, any statement about the factual position is a finding of fact made by me by reference to the documents before me and after hearing that oral evidence. The first claim form[6]The first claim form was presented on 12 January 2021. In it, the claimant claimed by ticking the relevant boxes on page 6 of the ET1 claim form that she had been discriminated against “on the grounds of pregnancy or maternity” and that she was owed “holiday pay” and “other payments”. The claimant and Ms Krupinska worked together in compiling and presenting the claim form. The claimant relied on Ms Krupinska as her representative as Ms Krupinska had previously made a claim to an employment tribunal. Ms Krupinska had no legal expertise. The claims would all have been made in time if they had been presented on or before 5 March 2021. The claimant relied on Ms Krupinska to help her in part because the claimant was (as she told me, and I accepted) somewhat distracted by her pregnancy and then (after it was born) her new baby.[7]During the first part of 2021, there was a highly restrictive lockdown in place, in response to the Covid-19 public health emergency. Ms Krupinska said (and I also accepted) that she and the claimant thought that there would be greater than usual delays as a result of that lockdown.[8]In box 8.2 of the first claim form, this was said (and only this): “I started a grievance as I was discriminated by manager once I informed about my second pregnancy. My manager tried to cut my hours, so I raised dispute, however that led to further damage. He tried to cut me off parking so I would not be able to travel to work as I had to drop my child to nursery before getting into workplace. Once I informed ACAS my employer started to claim I am not employed while I had verbal contract and also written statement of employment as he served it to my bank when applying for mortgage. I believe my employer is trying to avoid legal responsibilities and he did not take my grievance into account as the behaviour I was exposed to by my manager who is actually my employers son could lead to disciplinary action against manager. There is conflict of interests for my employer to deal with my dispute. He also had not paid me Statutory Sick Pay once I started Acas Conciliation. I have been very distressed with situation so I am not undertaking work as I am worried of further discrimination. There is also outstanding holiday pay as since first pregnancy I did work less hours so I was not aware of my entitlement.”[9]In box 9.2 of the claim form, the claimant claimed “Compensation tor my loss of income, maternity pay guarantee as I am due in May, any holiday and other payments owed and discrimination award.”[10]The claimant’s representative was stated to be Ms Krupinska. The early conciliation form named as the respondent Al-Shifa Trading Limited, and stated the address of the respondent as “Priory Pharmacy, 2 Priory Road, High Wycombe HP136SE”.[11]The name of the respondent on the claim form was “Shabbir Jogiat”, whose address was stated to be “2 Priory Pharmacy, High Wycombe, Bucks HP136SE”.[12]The claimant and Ms Krupinska both received an email from the tribunal on 12 January 2021 in the following terms (the copy which was before me was sent to Ms Krupinska’s email address, but the claimant told me on 21 June 2022 that she had been sent and received a copy of it as well): “Claim number: 332015248500 Kamila Slawik Thank you for submitting your claim to an employment tribunal. WHAT HAPPENS NEXT We’ll contact you once we have sent your claim to the respondent and explain what happens next. At present, this is taking us an average of 25 days. Once we have sent them your claim, the respondent has 28 days to reply. SUBMISSION DETAILS Claim submitted: 12 January 2021 Tribunal office: Watford Contact: watfordet@justice.gov.uk, 01923 281 750”.[13]On 26 January 2021, Ms Krupinska was sent by the tribunal a letter in the following terms: “Your claim form has been referred to Employment Judge R Lewis who has decided to reject it. The Judge’s reasons for this decision are that, although you have given an early conciliation number in section 2 of the claim form, the name of the prospective respondent on the early conciliation certificate is not the same as the name of the respondent on the claim form. I enclose some explanatory notes called ‘Claim Rejection - Early Conciliation: Your Questions Answered’. They include information about applying for reconsideration of the decision to reject your claim.”[14]It was Ms Krupinska’s evidence that she had not received that letter at the time it purported to have been sent (i.e. either by email on 26 January 2021 or in the post shortly after that day). I concluded that she had not received it at that time, if only because of the circumstances in which she certainly did receive it and what she did on the day that she did in fact receive it. She received it with an email which was sent to her on 20 April 2021, which she was sent by the tribunal staff at Watford after she had telephoned the office to find out what had happened to the claim that had been presented and acknowledged on 12 January 2021. The email of 20 April 2021 was sent at 10:36 and was in these terms: “Dear Katarzyna Krupinska, Thank you for getting in touch with the Employment Tribunal. Unfortunately claim 3300382/2021 Kamila Slawik v Shabbir Jogiat was rejected, a letter was originally sent out on the 26th January 2021. I have attached the letter which details why the claim was rejected. Kind regards”. The second claim form[15]Ms Krupinska then on that day filed a new claim form, which was then given the number 3305960/2021 (i.e. the second claim form). The same early conciliation number was given on it, but this time the name of the respondent was “Al-Shifa Trading Ltd”, whose address was stated to be “2, Priory Road, High Wycombe, Bucks HP136SE.” That claim form contained some slightly different details of the claim. In box 8.2 of the new claim form, this was said: “I started grievance as I was discriminated by manager once I informed him about second pregnancy. My manager tried to cut my hours, so I raised dispute, however that led to more problems. He tried to cut me off parking so I would not be able to travel to work as I had to drop my child to nursery before getting into workplace. Once I asked ACAS for help to resolve disputes my employer started to claim I am self employed while I had verbal contract and also written statement of employment as he provided it to me just before returning to work after maternity I took prior. My employer is not dealing with my grievance as the manager involved is his son. I also has not been paid SSP once I started ACAS conciliation. There is also outstanding holiday pay as I have not taken any since first pregnancy as there was not as much allowance as I have worked less hours until my son started nursery.”[16]In box 9.2 of the claim form, there was almost the same content as that which was in box 9.2 of the first claim form. The content of the second box 9.2 was this: “Compensation for loss of income, maternity pay and any other payments owed and discrimination award.”[17]Ms Krupinska said that she had not seen the letter dated 26 January 2021 until 21 June 2022. That was because she said that it was not attached to the email of 20 April 2021 the text of which I have set out in paragraph 13 above. I found that difficult to believe. Ms Krupinska said that she had viewed the email on a Samsung tablet, and I doubted that the enclosure would have been hidden by the software on that tablet. She said that she was able to see it when she viewed it on the Windows laptop which she had borrowed from a friend for the purposes of the hearing of 21 June 2022.
The relevant law
[18]Rule 12 of the Employment Tribunals Rules of Procedure 2013 (“the 2013 Rules”) provides (and provided at all material times): “(1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be ... (f) one which institutes relevant proceedings and the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation number relates. (2A) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraph (e) or (f) of paragraph (1) unless the Judge considers that the claimant made an error in relation to a name or address and it would not be in the interests of justice to reject the claim.”[19]Paragraph (2A) used (until 8 October 2020, when SI 2020/1003 came into effect) to contain the words “a minor” where there is now the word “an” before the word “error”. There is a small series of cases concerning the impact of rule 12(2A) as it stood with the word “minor” qualifying the word “error”. It is discussed in paragraphs PI[290.31]-[290.36] of Harvey on Industrial Relations and Employment Law (“Harvey”). The cases include the decisions of the Employment Appeal Tribunal (“EAT”) in Giny v SNA Transport Ltd UKEAT/0317/16 and Chard v Trowbridge Office Cleaning Services Ltd UKEAT/0254/16 (4 July 2017, unreported). The approach of Kerr J in the latter case was described helpfully in this way in paragraph PI[290.36]: “In considering the correct approach to the interpretation of r 12(2A), Kerr J rejected a literal interpretation, which involved a two-stage test of deciding, first, whether an error is minor, and, second, only if it is, whether it is in the interests of justice to reject the claim. He did so on the basis that it is ‘too purist’ an approach; is inconsistent with the overriding objective; and risked causing injustice (para 68). Instead, he preferred to read the rule: ‘as indicating that the “interests of justice” part of the rule is a useful pointer to what sort of errors ought to be considered minor. To put the point another way, minor errors are ones that are likely to be such that it will not be in the interests of justice to reject the claim on the strength of them.’ In Chard the employment judge, having concluded that the error was not minor, did not go on to consider the interests of justice point at all.”[20]The absence now of the word “minor” in rule 12(2A) was in my view of considerable significance.[21]Rule 13 of the 2013 Rules was also significant. It was at all material times in these terms. “(1) A claimant whose claim has been rejected (in whole or in part) under rule 10 or 12 may apply for a reconsideration on the basis that either—(a) the decision to reject was wrong; or(b) the notified defect can be rectified. (2) The application shall be in writing and presented to the Tribunal within 14 days of the date that the notice of rejection was sent. It shall explain why the decision is said to have been wrong or rectify the defect and if the claimant wishes to request a hearing this shall be requested in the application. (3) If the claimant does not request a hearing, or an Employment Judge decides, on considering the application, that the claim shall be accepted in full, the Judge shall determine the application without a hearing. Otherwise the application shall be considered at a hearing attended only by the claimant. (4) If the Judge decides that the original rejection was correct but that the defect has been rectified, the claim shall be treated as presented on the date that the defect was rectified.”[22]As for the legal tests to be applied when considering whether time should be extended for making a claim, they were the well-worn ones of whether it was (so far as relevant) reasonably practicable to make the claim within the primary time limit (which applied to the claim for unpaid wages by reason of section 23(4) of the ERA 1996) and whether (applying section 123(1)(b) of the EqA 2010) it was just and equitable to extend time for making the claim. In applying the first of those two tests, I took into account the case law referred to in paragraphs PI[190]-[196], PI[222]-[228], and (although these were less important, they were nevertheless helpful by way of background where there is a postal error) PI[231]-[231.04] of Harvey. In the latter passage, I found the following extract from paragraph PI[231.02] to be particularly helpful here: “A litigant cannot simply post the ET1, hear no confirmation of its safe arrival, and then sit back and rely on a ‘not reasonably practicable’ extension some days, weeks or months later. This was the scenario in Capital Foods Retail Ltd v Corrigan [1993] IRLR 430 where an unfair dismissal complaint was posted by the claimant's solicitors five weeks before the expiry of the time limit. There was no acknowledgment of receipt by the tribunal, nor was the document returned by the Post Office. Three months after the time limit had expired, the solicitor realised that something was amiss and sent a copy of the claim to the tribunal. The tribunal accepted the solicitor’s evidence as to the posting of the original claim and granted an extension of time on the ground that it was not reasonably practicable for it to have been presented in time. The EAT, however, reversed the decision, and dismissed the complaint. It held that it was not sufficient for the solicitor simply to rely on the presumption that what is posted will be delivered, for reliance on that presumption must itself be shown to be reasonable. The ‘not reasonably practicable’ test is only satisfied if the claimant or their advisers can show that they have taken all reasonable steps to see that the claim was received in time, and this includes checking the position if no reply has been received. In the circumstances, as the solicitor had not carried out any such check to ensure that ‘the conduct of business was taking a normal course’, it could not be said to have been reasonably impracticable for it to have presented the claim in time.”[23]In applying the second of the two relevant tests, namely when considering whether it was just and equitable to extend time, I took into account the principles in Robertson v Bexley Community Centre [2003] IRLR 434 as explained in Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327, and the judgment of the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 27, [2021] ICR D5. In paragraph 37 of his judgment in the latter case, with which Moylan and Newey LJJ agreed, Underhill LJ said this: ‘The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes [in ([1995] UKEAT 413/94]) “the length of, and the reasons for, the delay”. If it checks those factors against the list in [British Coal Corporation v Keeble [1997] UKEAT 496/98, [1997] IRLR 336], well and good; but I would not recommend taking it as the framework for its thinking.’[24]There was one appellate case concerning reasonable practicability which was on what were in one respect similar facts to those of this case. That was Adams v BT plc UKEAT/0342/15, [2017] ICR 382. There, Simler P (as she then was) was invited to, and did, apply the reasonable practicability test where the claimant had fallen foul of the then-applicable early conciliation requirements by failing to put the full conciliation number on the claim form. There is now an escape route where the requirement in issue in that case has not been met. That escape route exists as a result of changes made to the statutory regime which were of the same sort as that which has led to the removal of the word “minor” from rule 12(2A). Thus the facts of Adams would not now be repeated. In paragraph 30 of her judgment in that case, Simler P said this: “I accept that an error in transposing the certificate number onto the form is not something that [the claimant] would necessarily have been focused on to the same degree as other (on the face of it) more critical matters such as ensuring that her name, the respondent’s name and the addresses were correctly reflected on the form together with the appropriate claims she wished to make, some of which raised issues of some complexity. Her failure to appreciate that she had made an error is more understandable in the circumstances.” My conclusions Was it reasonably practicable to make the claim of unpaid wages within the primary time-limit period?[25]Ms Barnes submitted, and I agreed, that the decision in Adams could be distinguished, if only because the error on the claim form here was in regard to one of the matters which Simler P had regarded (see the preceding paragraph above) as being “more critical”, such “more critical matters [included] ensuring that ... the respondent's name and the addresses were correctly reflected on the form”.[26]In fact, that decision could be regarded as no more than a decision on its facts, even though the decision had been made by the EAT.[27]In addition, here the claimant or Ms Krupinska could, and in my view if they had been acting reasonably would, have contacted the tribunal after the period of 25 days referred to in the email which I have set out in paragraph 14 above. If the claimant or Ms Krupinska had done that within a month (28 days or more), or even (allowing for a longer delay than usual because of the Covid-19 lockdown) within 6 weeks, i.e. 42 days, then a new claim form would have been presented by them and it would have been in time.[28]In those circumstances, I was bound to conclude that the claim of unpaid wages was outside the jurisdiction of the employment tribunal. Was it just and equitable to extend time for making a claim under the EqA 2010?[29]I found several factors to be of particular importance here. The first was that the claimant could have applied for a review of the decision of EJ R Lewis to reject the first claim form. She could have done that under rule 13 of the 2013 Rules, and argued that the “decision to reject was wrong”, pointing out that (as it was now clear from the evidence before me) Mr Jogiat, the named respondent in the first claim form, was the directing mind of the company which had been named in the early conciliation certificate. If that had been done then there was in my judgment a very good chance that the decision to reject the claim would have been reversed by EJ R Lewis.[30]In addition, the claimant had relied on her friend, Ms Krupinska, to guide her on the basis that Ms Krupinska had relevant experience in that she had made a claim on her own behalf before, but Ms Krupinska’s experience was so limited as to be in the circumstances positively a hindrance rather than a help. As it is often said, a little bit of knowledge can be a dangerous thing. That maxim in my view was applicable here.[31]The claimant did, through Ms Krupinska, then file a new claim as soon as (i.e. on the same day that) she knew that her first claim had been rejected.[32]I was unable to conclude that the new claim was obviously without merit.[33]In all of the above circumstances, I concluded that it was just and equitable to extend time for the making of the claim of a breach of the EqA 2010.
Introduction
[34]We allowed her time to decide and provide us with the days and hours she could commit to on a fixed basis.[35]At this time, she continued to work but sent a message to the superintendent pharmacists on the 30 October 2020 (page 79) in which she claimed Equality Act discrimination. She claimed that we were cutting her working hours, which was not the case at all, and so were confused by her message.[36]On 2 November 2020 the superintendent pharmacists had a meeting with the Claimant. During this meeting we clarified that her current commitment to the business was not enough to meet the increasing demands. In this meeting it was explained that we still wanted her to work, requiring her services but needed commitment on days/hours. She was under the impression her half-days were cut which wasn’t the case. In fact, we asked her to work a full day instead of the halfday on a fixed day basis. At this point the Claimant still could not confirm if she could work 2 full days on a fixed basis.[37]On 11 November 2020 the pharmacy manager came to work whilst the superintendent pharmacists and the Claimant were already working. Both the Claimant and the superintendent pharmacist had brought their cars to work, occupying both the car parking spaces. As mentioned earlier, the Claimant had never been promised a car parking space. The pharmacy manager had to temporarily park in another car parking spot, at risk of parking enforcement.[38]During work, the pharmacy manager politely and simply asked that the Claimant not bring her car to work any longer as the needs of the business had changed and both car parking spaces were now going to be occupied throughout the day. One parking space would be occupied by the pharmacy manager as usual, and the other by the superintendent pharmacist.[39]The Claimant took this offensively and insisted that the car parking spot was hers and she was entitled to this. She began shouting and swearing aggressively in a pharmacy full of staff and patients, clearly being insubordinate.[40]She continued to work that day and left early at around 5pm without permission.[41]On 15 November 2020 the Claimant sent a WhatsApp message to the superintendent pharmacist (page 99, 86-87), with a sick note attached, explaining that she would not be coming into work.[42]On 18 November 2020 another sick note was received from the Claimant stating she would not be able to work until 1 December 2020.[43]We explained to the Claimant that since she was self-employed, she was not entitled to any statutory sick pay.[44]The Claimant then took this up with the HMRC by completing a selfassessment questionnaire (pages 72-75). However, she completed boxes 4, 6 and 7 with misleading information when she we had no control over her working hours whatsoever.[45]After HMRC had done their investigation, they concluded that the Claimant was not entitled to Statutory Pay as from 11 November 2020 since they also concluded that she was a self-employed person (pages 80- 82).[46]During HMRCs investigation she told them that she not aware why the employer asked her to sign the documents or that her employment status would change (page 78). The truth of the matter is that not only she had independent advice from an accountant but has been filing tax returns as a self-employed person. There is a chain of emails from the accountants to this end that confirms that the Claimant agreed to work on a self-employed basis and the fact she engaged them to complete her personal tax returns (pages 103-104 ).” 13 I have quoted almost the whole of the part of Mr Jogiat’s witness statement dealing with the factual issues relating to the claimant’s status because the quoted part was all highly material to the issue which I had to decide. In fact, I ended up hearing oral evidence from both Mr Jogiat and the claimant on almost all aspects of the claim, which rather suggested that it was a false economy to list the hearing for the determination of preliminary points. 14 The message from the claimant at page 99 was in these terms. “Dear Mr. Shabbir Jogiat, I am writing regarding recent communication relating to my working hours. I have been employed with you for about 12 years now and I’m strongly disappointed with cutting my working days to 1 a week. We have just agreed for me to undertake extra day as my son has childcare. Last week I informed you that I am pregnant and suddenly my working pattern is changing. I honestly feel discriminated as described in Equality Act. I hope we can work this matter out and find a solution so I can carry on work as agreed previously To gain better maternity pay allowance. Please do not hesitate to contact me to arrange a formal grievance meeting. Regards Kamila Slawik 30.10.2020” 15 Thus, one of the things which Mr Jogiat did not make clear in his witness statement and which was clear only from the document at page 99 (to which he referred in paragraph 30 of that statement) was that the claimant informed the respondent of her pregnancy only “last week” before 30 October 2020, so that if I accepted paragraphs 31-34 of Mr Jogiat’s witness statement then the issue of an increase in the claimant’s working hours and the need for her to “commit to fixed full days instead” might have been raised before the claimant informed the respondent of her pregnancy. If it was so raised then that was of considerable significance for the claim of less favourable treatment of the claimant because she was pregnant. Unfortunately, the claimant was not asked in crossexamination what she meant by “last week” in the document at page 99. 30 October 2020 was a Friday, so the claimant might theoretically have been referring to any day from Monday 19 October 2020 onwards. 16 I add that the claim was in part about the claimed removal of a right to the use of a parking space at the pharmacy at which the claimant worked, and that removal was the subject of full oral evidence. 17 The letter at page 78 to which Mr Jogiat referred in paragraph 46 of his witness statement was dated 16 September 2021. It was a determination of the claimant’s claim to be entitled to statutory sick pay. It was written to the claimant, but I was told that it was sent also to the respondent. The letter from HM Revenue & Customs (“HMRC”) at page 82, dated 16 September 2021, showed that that was correct. In any event, the parties agreed that the letter at page 78 was in fact sent by HMRC. It contained these paragraphs: “An opinion letter was issued to you and AI-Shifa Trading Limited on 15 April 2021 advising that HMRC considered you were not entitled to SSP as you appear to be registered as self-employed whilst working for the employer. You have disagreed with our opinion on the basis that you were not aware why the employer asked you to sign the documents or that your employment status would change.” 18 The email exchange at pages 103-104 to which Mr Jogiat referred in paragraph 46 of his witness statement was also capable of being important evidence (depending on whether or not I accepted Mr Jogiat’s evidence that the exchange was what it purported to be). The exchange was between the respondent’s solicitors and Ms Maria Rodriguez, who used the letters “FMAAT” after her name and was the “Office Manager and Client Partner” of TaxAssist Accountants’ at Beaconsfield. 19 On 25 March 2022, Ms Rodriguez wrote to the respondent’s solicitors (page 104; the minor textual errors in the following quotation are original): “Mr. Jogiat ask me to confirm with you the meeting we had with Mrs. Kamila Slavik to discuss the possibility to return to work full time, on that meeting Mrs. Slavik did confirm to Mr. Jogial and myself that due to lack of child care she could not return as a full-time employee to the company, we discussed the options and Mrs. Slavik did agree she would work as Self-employed as it was better suitable under the circumstances.” 20 The respondent’s solicitors replied (the text was at the top of page 104; I quote the text as it was on that page): “Thank you very much for your email. We have a hearing listed on 25 June to resolve the issue of whether Ms Slavik was an employee, as being claimed. Are you able to a) provide a witness statement and b) attend the hearing to give evidence? The Witness Statement have to be filed by 29th April, 2022.” 21 Ms Rodriguez replied: “I am sorry but that would be impossible as Ms. Slavik did engage me as her accountant to complete her personal tax return, so for GDPR I cant disclose any information concerning her tax affairs.” 22 At page 85 of the bundle, to which Mr Jogiat referred in paragraph 18 of his witness statement, there was an email from Ms Rodriguez to Mr Jogiat dated 14 December 2020. It enclosed three pdf files as attachments. Their file names were these:22.1 Kamila Slawik - Statutory Pay Calculation and Schedule2.pdf22.2 Payslips – Month Ending 31 March 2019.pdf22.3 Payslips – Month Ending 30 April 2019.pdf 23 The email’s text was this: “HI Jogiat, Her last paid payslip was for March 2019, this included the maternity payment, after that date March 2019 she was self-employed after your meeting with her.” The claimant’s evidence 24 On 2 October 2022, the claimant signed a witness statement. It contained this passage (which I quote verbatim): “4. On the 21st February 2019 I have received email from the Respondent reconfirming terms of my return to work, as I couldn’t do full time hours we agreed to work on 0 hour basis but agreed on regular days which were full hours Mondays, half day Wednesdays and half day Thursdays fortnightly. 5. I returned from my maternity leave on the 2nd April 2019 under terms agreed verbally between myself and Respondent and there was no communication regarding becoming self employed locum. 6. Within few months of my return around July 2019 Respondent asked me to his office where his accountant was present and she offered help with childcare arrangements as that could be taken off tax and she updated my address records. There was no discussion regarding self employment as within few minutes I had return to pharmacy technician responsibilities. That was first and only time I have seen her. 7. My employment carried on as normal with same duties and responsibilities as before my first maternity leave, I had uniform given by Respondent, I had my timesheets, also given parking permit, was part of workplace group chat on line, I would not be able to carry out any other work as i was doing my best to return to full time hours with the Respondent, at any time it would not come to my understanding or being advised by Respondent that my work status has changed. 8. While my working pattern stayed similar, there were occasions where I could work full week when my mother had holiday leave but there were days when i could not work as my child was unwell. 9. Unfortunately when pandemic happened I had difficulties to arrange nursery but worked as much as I was needed and always tried family members to help out. In September 2020 I found nursery that could provide full time care however that required time as my son needed to adjust and started on settling-in sessions. I informed Respondent and they seemed happy that I will be able to commit to more work. 10. On the 14th October 2020 I informed my manager of my second pregnancy. 11. Within few days on the 17th October 2020 Respondents son Mr Sohail Jogiat carried out pregnancy risk assessment and as pregnancy goes further he would check against any new guidelines because of pandemic. 12. Suddenly on the 21st October 2020 Respondents son Sohail Jogiat informed me that he needs to reduce my hours as it suits business. He proposed for me to work on Mondays only. 13. On the 30th October 2020 I started grievance as I felt discriminated against for getting pregnant. 14. Following that Respondent on the 2nd November 2020 asked me on the side and explained it is a misunderstanding and it would be better if I worked full days instead of halves. As some nursery days I had set for half day only it created an issue however I said I can do arrangements with my family. At the time I needed to stay at work to pay nursery fees and prepare for another child. 15. Shortly after Respondents son, on the 11th November 2020 approached me and said I am not allowed to use parking on Wednesdays and I could use a bus. He began to threaten me and say impolite things such as I am nobody and I am no longer needed. That meant I would not be able to work those days as I needed to drop of my son at nursery at 8am and get to work for 9am which would make it impossible without getting late to work and after paying £10 parking charge it would also be not affordable to work on that day, and if I took a bus I would also turn up late and possibly missed pick up time for my sons nursery. 16. I got very stressed with the situation and as I was pregnant I left to my car and messaged Respondent accordingly that I am not well, I spoke to my GP shortly after as could not calm down and I was signed off sick to avoid further stress triggers. 17. On the 15th November I contacted Respondent to follow up with my grievance requesting formal procedure and also asked my representative to help me further with it to get any response. 18. On the 18th November 2020 my representative Katarzyna Krupinska visited me and told me about ACAS, as it was best way to encourage employer to respond to my grievance. My representative explained me how conciliation works and I decided to start the dispute. 19. Since the conciliation process started I was sending my sick notes to the Respondent but never had any response in any form. 20. On the 1st January 2021 I received ACAS notification where Respondent stated their position and it was first time that he said that I am self employed and he claims it started in April 2019. That was a shock to me as I was half way through pregnancy and did not understand where his position came from. 21. On the 5th January 2021 I logged in on my personal tax account online and it showed AIShifa Trading Limited as my employer, which was confusing. 22. On the 8th January 2021 Respondents accountant emailed me asking for tax return, so I responded that I never required any such a service and did not wish to be contacted by her, as it was unsettling.” 25 However, on 19 July 2022, the claimant, via Ms Krupinska, wrote to the tribunal, seeking permission to amend the claim by the addition of a claim of unfair dismissal. The application enclosed and was based on a letter from HMRC to the claimant dated 28 June 2022 which was stated to have been written “about [her] phone call of 27 June 2022, asking for [her] employment history.” The letter had under the heading “Source of income for the tax year ended 5 April 2021” a box with the respondent’s name on the left under the heading “Employer/Pension provider”, and to the right of that box a box with a “Start date” of “04/02/2015” and a box with an “End date” of “05/04/21”, with the pay for the whole of that period shown as “£0”. 26 On 21 June 2022, I said that Ms Rodriguez’ evidence was likely to be of considerable materiality, and I pointed out that the GDPR did not apply to speaking to a solicitor in connection with litigation or to giving evidence to a court or tribunal. On 13 October 2022, I said the same thing, but I also pointed out that the claimant could have called Ms Rodriguez to give evidence. Ms Krupinska said that she and the claimant had sought documents from Ms Rodriguez by email and that Ms Rodriguez had replied. I asked the claimant to forward me the email exchange, and she did. Initially it came without any attachments, although the email showed that it had originally had at least one attachment in the form of a file with the name “Signed Terms of Engagement Kamila Slawik.pdf”. 27 I then assisted the claimant to forward to me and Mr O’Keeffe the email with the attachments actually included, and it became clear that the claimant had been sent the documents before the hearing of 21 June 2022, but she had not told the respondent about those documents at that time. She had of course also not told me about them. The email enclosing the “Signed Terms of Engagement” letter was dated 18 May 2022. 28 That letter was dated 1 June 2019. The letter was in these terms: “Dear Kamila Slawik, Engagement Letter We enclose our terms of engagement that set out the terms under which we agree to act and our standard terms of business. Please read the contents carefully. Providing that they meet with your approval, I would be grateful if you could sign our proposal. If we are required to carry out any additional work for you in the future, we will send a further proposal for you to sign outlining the additional services which will then apply to your circumstances. If you have any queries or would like to discuss any aspects of this proposal, please do not hesitate to contact us. Services Provided 3d. Personal Tax Recurring compliance work• We will prepare your self assessment tax returns together with any supplementary pages required from the information and explanations that you provide to us. After obtaining your approval and signature, we will submit your returns to HM Revenue & Customs (HMRC).• We will calculate your income tax, national insurance contributions (NIC) and any capital gains tax liabilities and tell you how much you should pay and when. We will advise on the interest, penalty and surcharge implications if tax or NIC is paid late. We will also check HMRC’s calculation of your tax and NIC liabilities and initiate repayment claims if tax or NIC has been overpaid.• Other than as regards tax credits (see below) we will advise you as to possible tax return related claims and elections arising from information supplied by you. Where instructed by you, we will make such claims and elections in the form and manner required by HMRC.• We will review PAYE notices of coding provided to us and advise accordingly. On Completion £250.00 3d. Personal tax £250.00 All prices are exclusive of VAT Period of Engagement This engagement starts on 1 June, 2019 and will continue until such time as we reissue our terms, or either of us terminates the agreement. We will deal with the financial period ending 19 June, 2019 and no earlier periods unless you specifically ask us to do so and we agree. Yours sincerely, Maria Rodriguez” 29 Ms Rodriguez had not signed the letter physically, but her name was there in different font to show that she had signed it. The claimant had signed the letter in the same font, and the date of her signature was 2 July 2019. 30 Mr O’Keeffe reminded me that litigation privilege attached to any communications between the claimant and Ms Rodriguez in relation to any contact made about giving evidence, and I informed the claimant of the effect of that privilege. However, I understood from her that she had not asked Ms Rodriguez to give evidence. 31 The email of 18 May 2022 from Ms Rodriguez was sent in response to one from the claimant of the same day. The claimant’s was sent to TaxAssist at 09:37 and was in these terms: “Dear tax assist, I have been recently informed that I am your client where I do not believe that I have ever been. You have been using my details where sharing emails with organisation I work for but never on my behalf as alleged your client. My details are as follows: Kamila Slawik D.o.b. 21.01.1987 I would kindly request you to provide all details you hold about me and your logs of when my personal account was accessed and what changes were done. As I am your alleged client I would like to receive any documentation regarding commencement of such a service. I would also request all email communication where you have used my details. I hope you can quickly and amicably resolve my query as I believe there is no need to involve ICO at present time. I would like to receive all correspondence via email please. Any information requested above between 01.01.18 and 17.05.22. Please do not hesitate to contact me in case you require payment for Subject Access Request. Kind regards, Kamila Slawik”. 32 Ms Rodriguez’s reply was this: “Dear Kamila, Hope you are well. Find attached the emails communications in our records, including the signed terms of engagements signed by you on the 2nd of July 2019.• Signed Terms of engagement• Onboarding completed email (confirming our agent authorisation was accepted by HMRC and also acknowledged by you)• Final Reminder Self-Assessment Tax Return• Disengagement email As per our disengagement email, we never completed any tax returns for you as we did not hear from you following our requests for your tax information. As we no longer act for you your accounts have been archived in our database following your contractual 21 days written notice on 9th January 2021. I hope this clarifies your position with our firm once again. Please let me know if you have any further queries.” 33 The enclosed emails were indeed to the effect stated by Ms Rodriguez. The “onboarding” email dated 16 December 2019 from TaxAssist showed that TaxAssist had “applied for [the claimant’s] UTR [i.e. unique tax reference] number online (on 2nd July 2019)” and that the claimant had, on 16 December 2019, sent TaxAssist a photograph of her passport for identification purposes in that regard. That email contained also this paragraph: “You UTR can be found on any correspondence you may have received from HMRC. They should have sent something by now as we initially registered in July 2019.” 34 The claimant said in cross-examination that the Signed Terms of Engagement letter from Ms Rodriguez which I have set out in paragraph 28 above was (and this is what I recorded in my notes of the cross-examination as it continued shortly after lunch on 13 October 2022) “a generic company email”. I then asked the claimant whether she had read it, and she said (as so recorded): “I have not read it; I have read it now. I would not be able to understand for it to be worded like this.” 35 The claimant was a qualified Accuracy Checking Technician (“ACT”). In crossexamination, the claimant accepted that the role is one of some responsibility in a pharmacy. I therefore asked her at that point whether she had taken the examination in order to obtain that qualification in English. Her answer (as noted by me) was this: “Yes; but I did not understand tax emails. This was all very confusing to me, especially when I was not expecting something like this [by which she meant a change in status from being an employee to being self-employed] to happen to me; and it was confusing for all of this to happen.” 36 There were no documents in the bundle relating to the payments which the respondent made to the claimant after March 2019. The claimant said that she had been paid by the respondent by direct bank transfer. I pointed out that if the payments were made gross into her bank account then they were made without deductions of income tax or national insurance contributions. She did not say that such deductions were made from the payments which she received from the respondent for her work after 31 March 2019. The factors which affected the credibility of the evidence before me 37 The claimant’s new witness statement, dated 2 October 2022, contained in paragraph 10 (which I have set out in paragraph 24 above) evidence that she had told the respondent on 14 October 2020 of her pregnancy. That was not consistent with the document at page 99 which I have set out in paragraph 14 above. 38 It was only after I had asked the claimant and Ms Krupinska whether or not they had asked Ms Rodriguez to give evidence, or to supply documents if only to the tribunal, that they told me that the claimant had in fact contacted Ms Rodriguez and only then did I receive a copy of the emails to which I refer in paragraphs 26- 34 above. 39 It appeared to me that those emails supported the respondent’s case rather than the claimant’s. I found it hard to believe that the claimant, whose understanding of written English was plainly good enough for her to become a qualified ACT, did not understand what she was signing. 40 I also found it very difficult to accept that Ms Rodriguez would have been engaged to help the claimant to “help with childcare arrangements as that could be taken off tax” as claimed by the claimant in paragraph 6 of her witness statement, which I have set out in paragraph 24 above. The emails to which I refer in paragraphs 26-34 above were firmly to a different effect, and in any event it was unlikely that Mr Jogiat would have arranged for the attendance of Ms Rodriguez to help the claimant to obtain free childcare. 41 In addition, the claimant said in paragraphs 4 and 5 of her witness statement of 2 October 2022 that she had agreed to whatever she said she had agreed to with Mr Jogiat orally only. Yet she had, according to HMRC’s letter of 16 September 2021 from which I have set out the relevant passage in paragraph 17 above, said to HMRC that she was asked to sign documents by the respondent. I pointed out to the claimant on 13 October 2022 that the document in which she did that was not in the bundle. She did not then say that HMRC’s letter of 16 September 2021 was inaccurate in so far as it stated that she had asserted to HMRC, when disagreeing with HMRC’s opinion that she was self-employed when working for the respondent, that she had signed documents relating to her employment status. 42 The respondent had paid the claimant statutory maternity pay when she was first pregnant. My resolutions of the material conflicts of evidence 43 All of the factors in paragraphs 26-42 above, taken together, undermined the reliability of the claimant’s evidence. 44 Ms Krupinska laid great store in oral submissions on the fact that the respondent had not obtained documents from HMRC which supported the respondent’s position, and also on the fact that (as recorded in paragraph 25 above) HMRC had recorded the claimant to have been employed by the respondent until 5 April 2021. However, those documents necessarily relied on what HMRC had been told, and in any event the content of the document to which I refer in paragraph 25 above appeared to be markedly unreliable, given that the claimant was recorded in it to have received no pay at all during the period of her employment with the respondent from 2015 to 2021 and it was the claimant’s own evidence that she had been paid by the respondent at least until the end of 2020. I had, in contrast, heard and seen the claimant and Mr Jogiat give evidence and I had probably seen more of the material documentation. 45 I bore in mind the fact that while I had had the advantage of seeing and hearing both Mr Jogiat and the claimant give evidence, as Leggatt J (as he then was) pointed out with the utmost clarity and cogency in paragraphs 15-22 of his judgment in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), memories are often unreliable, and the best approach to take at least in commercial cases is as Leggatt J described it in paragraph 22 of his judgment, which was this: “In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.” 46 Having heard and seen the claimant and Mr Jogiat give evidence, I came to the firm conclusion that Mr Jogiat’s evidence was to be preferred to that of the claimant in all respects. As a result, I accepted what he said in the passages of his witness statement which I have set out above. I accepted that the claimant was, in April 2019, engaged, with her express agreement, to work on a selfemployed basis by the respondent, and that after then she regarded herself as being a locum contractor whose services the respondent needed. She also, I accepted, did not regard herself as being subservient to the respondent, and she acted as an independent contractor. If (as seemed likely) the claimant did not then obtain locum work elsewhere, then that was the result of the fact that she did not have time to do so.[47]I concluded in those circumstances that the claimant had agreed in April 2019 with the respondent that she would work as a locum ACT. If and to the extent that she did not subsequently do work for other employers as a locum ACT, that did not affect the fact that she had in April 2019 resumed working for the respondent as an independent contractor, who was intended to be in business on her own account and who did, in practice, not regard herself, and was not treated by the respondent, as being in a position of subordination. My conclusion on the issue of the claimant’s status[48]For the above reasons, I concluded that the claimant was not employed by the respondent within the meaning of section 83(2) of the EqA 2010. Accordingly, her claim of a breach of sections 18 and 39 of that Act had to be dismissed. In addition, as the parties agreed on 13 October 2022, the claimant’s application to amend her claim to add a claim of unfair dismissal had to be dismissed.