Ms L Comarnitchi v Iron Mountain (UK) Services Ltd and Bishops Facilities Management Ltd: 3312554/2023
EMPLOYMENT TRIBUNALS
Case No 3312554/2023
Between
Ms L ComarnitchiClaimantIron Mountain (UK) Services Ltd and Bishops Facilities Management LtdRespondent
Before
Employment Judge LaidlerIn person for claimantDate 9 September 2025
JUDGMENT
[1]Both Respondents conceded that the Claimant is a worker for the purposes of her claim of protected disclosure detriment within the meaning of s.43K of the Employment Rights Act 1996 (“ERA”).[2]The Claimant was a contract worker of the First Respondent within the meaning of s.41 of the Equality Act 2010 (“EqA”).[3]The Second Respondent’s application to be removed from these proceedings is granted as the allegations made by the Claimant are not made against the Second Respondent or anyone employed by it.
REASONS
[1]This matter was last before this Employment Judge on 19 November 2024. The reasons for that Hearing being adjourned were set out in the Summary sent to the parties on 13 December 2024. The matter had been listed to determine the Claimant’s status, but the judge determined that in addition to s.230 of the Employment Rights Act 1996 (ERA) and s.83 of the Equality Act 2010 (EqA), the following provisions would need to be considered:- Case Number: 3312554/2023. 2 1.1. S.41 EqA 2010 – dealing with liability in respect of contract workers; and 1.2. S.43K ERA 1996 – giving an extended meaning to the definition of “worker” for Part IVA of the ERA 1996 (relevant as the Claimant brings a whistle blowing claim under that part of the Act).[2]As the parties had not been prepared to deal with those particular provisions, the matter was adjourned until this Hearing.[3]Directions were given for the represented Respondents to file and serve written submissions within 14 days of the date on which the Summary was sent to the parties, which would have been by 29 January 2025.[4]The First Respondent was not able to comply with that date in view of the Christmas holiday and set out its position in an email of 14 January 2025, in which it stated as follows:- “Section 41 Equality Act 2010 This section will only apply if the Claimant is deemed to have been a “contract worker”. The Claimant would only fall within the definition of a contract worker if she was employed by the Second Respondent. Whether the Claimant was an employee or worker of the Second Respondent is an issue for determination at the Preliminary Hearing. Section 43K Employment Rights Act 1996 It is conceded that the Claimant is deemed to be a worker for whistleblowing purposes and the extended definition of worker which includes agency workers and is therefore protected under the Act.” Counsel at this Hearing took the position that he was not bound by the position set out in his instructing solicitors letter as set out above. In respect of section 41 there was ‘capacity’ for the first respondent to come within subsection 5 but that the issue for this tribunal would be what the nature of the contract is that potentially engages that subsection. He did however accept that s43K was conceded.[5]The Second Respondent sent in submissions which were primarily quoting the relevant statutory provisions. However, it did make the following relevant point in that document:- “The First Respondent has confirmed that the Claimant was supplied to them by a third party, which is the Second Respondent. The terms of the engagement were determined by them, for that reason, section 43K is engaged and the Claimant is to be treated as a worker of the First Respondent by this extension.” Case Number: 3312554/2023. 3[6]Counsel for the First Respondent also provided some written submissions dated 18 January 2025 and all parties made oral submissions at the end of this Hearing. Evidence at this Hearing[7]The Tribunal had a bundle of documents of 207 pages including the witness statement of the Claimants and Francesca Kidner of the First Respondent and Danielle Bishop of the Second Respondent. All those witnesses were heard and questions put to them.[8]From the evidence heard, the Tribunal finds the following facts.
The Facts
[9]From the evidence of Danielle Bishop for the Second Respondent, the tribunal accepts that the Claimant was engaged as a data entry operative by the Second Respondent from 2 July 2022. She was specifically recruited for the role with the First Respondent. The Second Respondent is a recruitment agency that works solely with the First Respondent to place temporary staff into projects all over the UK. They do not have any other clients than Iron Mountain (UK) Services Limited.[10]The arrangement under which Bishops Facilities Management Limited provides staff was set out in a contract seen in the bundle at page 126. It is entitled, “Short Form Purchase of Goods and Services Agreement” and is dated 25 April 2022. It commenced on 1 May 2022. Although it refers to the supply of goods and / or services, it also states that the expression “services”, “…shall mean services of every kind to be performed by and / or work to be done by the supplier under the order as more particularly described in Schedule 1”. Bishops were the supplier.[11]Schedule 1 whilst still headed, “Goods and / or Services” refers to the current rate table and there sets out the temporary worker pay, the National Insurance contributions, pension deductions, holiday pay and “Bishops Margin”, ending with the cost to Iron Mountain. It also provides for fees to be paid if a temporary worker becomes a permanent worker. There is a section about payment terms confirming that Iron Mountain will be invoiced weekly.[12]In Schedule 2 was a graph showing a head count summary 2021 to 2022, new starters by site with the First Respondent and the current supply of staff as at 25 April 2022. There was also a table of hours worked per month, spend per month and at the end terms and conditions of purchase.[13]From the evidence heard from Danielle Bishop the tribunal is satisfied that that was the agreement that Bishops and Iron Mountain worked under and Case Number: 3312554/2023. 4 under which her organisation provided temporary staff to Iron Mountain. It is a contract.[14]It was argued in submissions on behalf of Iron Mountain (though not in its Grounds of Resistance) that this contract was not sufficient for it to come within the provisions of s.41 of the Equality Act 2010. It was argued that there were only bare details and ambiguities and the First Respondent should not as a result be “saddled with liability under s.41”.[15]It was absolutely clear from the evidence of Danielle Bishop that this was the contract entered into between her organisation and Iron Mountain under which temporary workers were supplied by her organisation to Iron Mountain. The workers would work at Iron Mountain premises but they had no guaranteed hours. Bishops received time sheets from the First Respondent and only that way did they know what to pay the Claimant. Bishops had no control over the work done by the Claimant, there was no substitution for the Claimant and all training was done by Iron Mountain.[16]It was as a result of being advised by Iron Mountain on 12 July 2023 that due to business requirements and volume going down they were forced to reduce the number of temporary employees and Bishops were asked to release the Claimant and five other workers with immediate effect.[17]The tribunal also heard from Francesca Kidner, Senior Operations Manager for Iron Mountain. She confirmed that the Claimant was employed as a temporary operative working in their processing site in Corby. The Claimant was supplied under the Goods and Services Agreement between Bishops and Iron Mountain. Bishops provided temporary resources to Iron Mountain’s multiple sites in the UK and are responsible for all their employee contractual requirements, for example pay and holiday pay.[18]The Claimant was initially engaged on an NHS project with Iron Mountain and moved to an HMPO project from 6 February 2023. Time sheets setting out hours worked for these projects were submitted to Bishops.[19]Iron Mountain would notify Bishops of the Claimant’s holiday dates so that Bishops, as the employer, would have a record of those for the purposes of holiday pay calculations.[20]The Claimant’s evidence was that she believed that she was an employee of Iron Mountain, but that they chose to hire her through Bishops rather than hiring her direct. There is, however, no evidence of that. It is quite clear from the evidence that it was Bishops who employed the Claimant, she entered into a contract with Bishops and it was they who placed her with Iron Mountain. Bishops had no control over the work that she did when at Iron Mountain’s premises.[21]In her witness statement the Claimant stated that when she had concerns she raised those with the team leaders at Iron Mountain and raised her Case Number: 3312554/2023. 5 whistleblowing report on their ‘Convercent’ platform. She also specifically states in her witness statement at paragraph 55, “All of the discriminatory and harassment actions that I experienced were done by the Team Leaders / Supervisors of Iron Mountain, employed directly by Iron Mountain.”[22]This was also recorded in the first Case Management Orders made by Employment Judge Hutchings and sent to the parties on 22 August 2024. From the List of Issues, it can be seen that the allegations were against those working for Iron Mountain. Submissions For the First Respondent[23]It was submitted that it cannot simply be the case that if there is a coexisting contract between the Claimant and the Second Respondent that the mere existence of a contract is enough. It was, however, acknowledged that there was no relevant authority on the point. It was submitted that the important language in subsection 5 is that the worker has been provided, “in furtherance of a contract”.[24]The contract in this case, it is suggested, refers to goods and there is an ambiguity as it is nothing more than a generic agreement between the First and Second Respondent.[25]It was still acknowledged that the Claimant came within the definition of s.43K of the Employment Rights Act 1996.[26]Following the line of cross examination, it was also submitted on behalf of the First Respondent that the Claimant wishes to saddle the First Respondent with liability as she has formed a view it is not a “man of straw” and it will be easier to enforce any award against it as opposed to the Second Respondent. For the Second Respondent[27]It is not disputed that there is an employment contract between the Second Respondent and the Claimant. It was submitted that there is sufficient control by Iron Mountain for this to potentially give rise to worker status under s.230 of the Employment Rights Act 1996. It is accepted she is a worker under s.43K.[28]With regard to the contract between the First and Second Respondent, it clearly sets out details of hourly rates, head count, hours worked per month, etc. and this clearly refers to the supply of staff. The contract is not ambiguous as has been suggested by the First Respondent and all Case Number: 3312554/2023. 6 witnesses agree that was the contract under which the Claimant was supplied.[29]It was further submitted that consideration should be given to the spirit of the legislation and the reasons for it, namely, to protect the worker carrying out work for the principal and to be protected against discrimination at their premises. Both the witnesses confirmed that it was this contract under which the Claimant was provided. This argument had never been raised before and was not in the First Respondent’s written submissions. For the Claimant[30]It was submitted that she was fully integrated into Iron Mountain, all the managers were at that entity and had control over what she did. The discrimination and harassment was carried out by the supervisors of Iron Mountain.
Relevant Law
[31]Section 41 of the Equality Act 2010 provides,[41]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; Case Number: 3312554/2023. 7 (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). 32. The type of arrangement envisaged by the above paragraph is discussed in Chapter 11 of the Code of Practice in Employment (2011). It describes at 11.5 the principal also being known as the end user, “Is a person who makes work available for an individual who is employed by another person and supplied by that other person under a contract to which the principal is a party”. 33. Reference is also made in the Code to subsection 7 of s.41 which defines a contract worker. It makes clear that contract workers can include employees who are seconded to work for another company or organisation and employees of companies who have a contract for services with an employment business. 34. At 11.7 of the Code it states, “Agency workers engaged by an employment business may also be contract workers as long as they are employed by the employment business. An agency worker supplied to a principal to do work and paid by an employment business under a contract will also be protected. Self employed workers who are not supplied through employment businesses are not contract workers but may still be covered by the Act (see paragraph 10.3).” Case Number: 3312554/2023. 8 35. At section 11.8 of the Code, referring to section 41(5)(b) the Code states, “There is usually a contract directly between the end user and supplier but this is not always the case. Provided there is an unbroken chain of contracts between the individual and the end user of their services, that end user is a principal for the purposes of the Act and the individual is therefore a contract worker.” 36. The first respondent handed up, amongst others, the following authorities. 37. Boohene v The Royal Parks Ltd CA-2023-000978. It was suggested that the tribunal consider paragraphs 57, 65, 66 and 74 but acknowledged that the claims made were quite different to that before this tribunal. There the tribunal had been concerned with employees of Vinci who worked on what was referred to as the ‘toilet and cleaning contract’ who were paid less than the London Living Wage. All but one of those employees was black or other ethnic minority. The directly employed workforce was predominantly white and were at all times paid the LLW by Royal Parks. The claim was put as one of indirect race discrimination against them as contract workers contrary to section 41 EA alleging that Royal Parks was the principal. The court was primarily concerned with which subsection of s41(1) was engaged and the claim of indirect discrimination. They are not issues before this tribunal. The tribunal had held that they were contract workers and that was not challenged in the EAT. The appeal to the Court of Appeal focused on which subsection of s41 was engaged, material differences between the claimants and the directly employed workforce such that they could not be treated as comparators and issues concerning the PCP. Paragraph 57 of the Court of Appeal decision did stated that: ‘…the peculiarity of contract work is that access to work and what happens at work is the responsibility not of the employer but of a third party, i.e. the principal: that situation creates an additional (non-contractual) relationship – ‘the principal – worker relationship’…’ 38. United Taxis Ltd v Comolly and others [2023] EAT 93. It was submitted on behalf of the first respondent that this authority might be ‘slightly more helpful’ as a consideration of worker status. The tribunal was not however taken to any specific aspects of it and as it has been conceded that the claimant was a worker within the meaning of s43K ERA the tribunal has not given this authority further consideration. 39. Leeds City Council v Woodhouse & Anor [2010] EWCA Civ 410. This case had been provided as it suggested that the enquiry into contract Case Number: 3312554/2023. 9 worker status may not be appropriate for a judge sitting alone at a preliminary hearing. At paragraph 29 Lady Justice Smith gave a ‘word of caution’ of dealing with what was then section 7 of the Race Relations Act 1976 at a preliminary hearing, stating that unless the case is ‘very straightforward, it will be necessary for the tribunal to make extensive findings of fact’. The hearing before this tribunal was listed on the last occasion and there have been no submissions at any stage that it was not appropriate for the issue to be determined at a preliminary hearing. Directions were made for witness statements, evidence heard and findings of fact made. Even when this case was referred to in submissions it was submitted that it ‘may not be so relevant’ and even at that stage it was not suggested that it had been inappropriate to hear the issue at a PH or that there was other evidence that still needed to be heard. 40. In written submissions the following were also referred to. 41. Harrods Ltd v Remick [1998] 1 All ER 52. The case concerned claimants employed as saleswomen at concessions in Harrods, the Court of Appeal holding that on the facts they could be said to ‘work for’ Harrods, which was therefore their principal. The court emphasised that: ‘…, in approaching the construction of [section 7(1) Race Relations Act] we should, in my judgment, give a construction to the statutory language that is not only consistent with the actual words used but also would achieve the statutory purpose of providing a remedy to victims of discrimination who would otherwise be without one.’[42]Day v Lewisham & Greenwich NHS Trust [2016] IRLR 415 which gave guidance on section 43K on which there is no longer a dispute.
Conclusions
[43]The Claimant was an individual who was employed by Bishops and supplied by Bishops in furtherance of a contract between it and Iron Mountain. The contract may state it was for goods and services, but looking at the schedules to it, it is clearly referring to the supply of people. Hourly rates for “temp pay”, National Insurance, pension deductions and the percentage attributed to holiday pay would not be referred to in relation to goods and services. There is also a section about the amount payable by Iron Mountain if the temporary member of staff becomes permanent. Both of the witnesses confirmed that was the agreement under which the Claimant was supplied to Iron Mountain. The arguments put forward at this Hearing on behalf of the First Respondent that there is an ambiguity in it are not accepted. Case Number: 3312554/2023. 10[44]There has never been a dispute by Bishops that it employed the Claimant. She was therefore, within the meaning of the section, employed by another person. She was then provided by that person to Iron Mountain, which entity was in fact its sole client. The work that the Claimant had to do, however, was the work for Iron Mountain. Bishops did not have work for her to do.[45]The Claimant was therefore a contract worker within the meaning of s.41 of the Equality Act 2010. Removal of the Second Respondent from these Proceedings[46]It follows from the Tribunal’s findings that the application of the Second Respondent to be removed from these proceedings is granted. All of the allegations made by the Claimant are against the First Respondent. For the First Respondent it was submitted that it would be “unhelpful” if the Second Respondent did not remain a party to these proceedings. It is not clear what part they would have to play in it. The list of issues finalised by Employment Judge Hutchings and the Claimant’s own evidence in her witness statement to this Hearing, are that the alleged acts of discrimination were perpetuated by representatives of Iron Mountain.[47]The Second Respondent would have no relevant evidence to give in connection with such matters. If they did, it would be open to the First Respondent to call a representative to give evidence.[48]As the claims proceed on this basis, the Judge has made further Case Management Orders to avoid the necessity of a further Hearing and these are set out in a separate document. Approved by: