L Moreira v Encore Personnel Services Ltd and Morrison Data Services Ltd: 3312982/2023
JUDGMENT
[1]The claimant is Loretta Moreira. The first respondent is Encore Personnel Services Limited. The second respondent is Morrison Data Services Limited.[2]THIS IS AN OPEN PRELIMINARY HEARING TO DETERMINE TWO ISSUES. Issues[3]The issues to be determined are: i.The status of the claimant; and ii.Whether it is just and equitable to extend the time limit to bring a claim against the first respondent. Procedure and hearing[4]The hearing was heard remotely by way of CVP. I heard submissions on behalf of each party. I heard oral evidence from the claimant. PHCM Order 1 of 6 September 2023[5]I was referred to a bundle of documents, the claimant’s witness statement, written submissions on behalf of each party.[6]I reserved my decision and reasons.[7]THERE WAS AN ACCIDENTAL SLIP IN THE ORIGINAL DOCUMENT SETTING OUT MY DECISION. THE CASE MANAGEMENT ORDERS SHOULD HAVE BEEN SEPARATE TO THIS JUDGMENT. I ALSO INCORRECTLY RECORDED THAT THIS WAS A PRIVATE HEARING WHEN IT WAS AN OPEN PRELIMINARY HEARING. I HAVE AMENDED MY JUDGMENT TO REFLECT THAT UNDER RULE 67 OF THE EMPLOYMENT TRIBUNAL RULES OF PROCEDURE 2024. Time limits[8]Section 123(1) of the Equality Act 2010 states: “ [Subject to [section 140B]2 proceedings]1 on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.” Status[9]Section 83(2) of the Equality Act 2010 states: “Employment” means— (a)employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;...”[10]Section 55 of the Equality Act 2010 states: “(1)A person (an “employment service-provider”) concerned with the provision of an employment service must not discriminate against a person— (a)in the arrangements the service-provider makes for selecting persons to whom to provide, or to whom to offer to provide, the service; (b)as to the terms on which the service-provider offers to provide the service to the person; (c)by not offering to provide the service to the person. (2)An employment service-provider (A) must not, in relation to the provision of an employment service, discriminate against a person (B)— (a)as to the terms on which A provides the service to B; (b)by not providing the service to B; (c)by terminating the provision of the service to B; (d)by subjecting B to any other detriment. (3)An employment service-provider must not, in relation to the provision of an employment service, harass— PHCM Order 2 of 6 September 2023 (a)a person who asks the service-provider to provide the service; (b)a person for whom the service-provider provides the service. (4)An employment service-provider (A) must not victimise a person (B)— (a)in the arrangements A makes for selecting persons to whom to provide, or to whom to offer to provide, the service; (b)as to the terms on which A offers to provide the service to B; (c)by not offering to provide the service to B. (5)An employment service-provider (A) must not, in relation to the provision of an employment service, victimise a person (B)— (a)as to the terms on which A provides the service to B; (b)by not providing the service to B; (c)by terminating the provision of the service to B; (d)by subjecting B to any other detriment. (6)A duty to make reasonable adjustments applies to an employment serviceprovider, except in relation to the provision of a vocational service. (7)The duty imposed by section 29(7)(a) applies to a person concerned with the provision of a vocational service; but a failure to comply with that duty in relation to the provision of a vocational service is a contravention of this Part for the purposes of Part 9 (enforcement).” 10. Section 41 of the Equality Act 2010 states: “(1)A principal must not discriminate against a contract worker— (a)as to the terms on which the principal allows the worker to do the work; (b)by not allowing the worker to do, or to continue to do, the work; (c)in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; (d)by subjecting the worker to any other detriment. (2)A principal must not, in relation to contract work, harass a contract worker. (3)A principal must not victimise a contract worker— (a)as to the terms on which the principal allows the worker to do the work; (b)by not allowing the worker to do, or to continue to do, the work; (c)in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; (d)by subjecting the worker to any other detriment. (4)A duty to make reasonable adjustments applies to a principal (as well as to the employer of a contract worker). (5)A “principal” is a person who makes work available for an individual who is— (a)employed by another person, and (b)supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that other person is a party to it). PHCM Order 3 of 6 September 2023 (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).” Submissions[11]The first respondent conceded that the claimant was either a prospective applicant for employment under section 83(2) of the Equality Act or a prospective recipient of service under section 55 of the Equality Act. It was said that the circumstances of the case were one or the other, and that in reality it did not matter which one. In respect of time limits, it was submitted that it was not just and equitable for the tribunal to allow an extension.[12]The second respondent submitted that in respect of status, the claimant had never been employed by the second respondent and, at the most, had been an agency worker. The claimant had been employed by the first respondent.[13]The claimant’s view was that she was an agency worker working on the understanding that she would become a permanent employee of the second respondent. She noted that she carried out the same role as permanent employees. She submitted that any delay in making the claim was minimal and reasonable. Findings[14]There was a contract between the claimant and the first respondent. This is found at pages 165 to 166 in the bundle. That clearly states that the claimant was engaged as an agency worker and that the terms of the contract did not give rise to a contract of employment (see clause 2.2).[15]There was a contract between the first and second respondent. That is found at pages 112 to 138 in the bundle. Clause 14.2 of that contract states that “...Temporary Resources supplied by the Employment Business under this agreement are engaged under contracts of employment. They are the employees of the Employment Business but are deemed to be under the supervision and direction of the Client...”[16]There is a disconnect between the two contracts. The first respondent should have supplied those who were engaged under contracts of employment to the second respondent. It did not do so in this case.[17]The claimant was line managed by the second respondent. She was paid by the first respondent. This was the claimant’s evidence, and it was not challenged by the respondents.[18]There are relevant time limits for the claims of direct disability discrimination against the first respondent. Those are set out on page 105 in the bundle. Two allegations relate to events said to have occurred on 16 June 2023 and one event on 6 July 2023. Therefore, the time limit for claims to be brought to be brought is 16 September 2023 for the first two allegations and 6 October 2023 for the third. PHCM Order 4 of 6 September 2023[19]The claimant first started Early Conciliation with ACAS on 18 August 2023. A certificate was issued on 29 September 2023. However, the name of the first respondent on that certificate is “Encore (GI Group UK)” which the claimant accepts was an error. A further early conciliation certificate was obtained on 3 November 2023 in the correct name of the first respondent.[20]The claim form was presented to the tribunal on 4 November 2023. All three of the claims were therefore late. Conclusions[21]The claimant was an employee of the first respondent within the meaning of section 83(2)(a) of the Equality Act 2010. This is because the claimant was under a contract to personally do work. There is no provision in the contract between the claimant and the first respondent for the claimant to send a substitute to carry out the work instead. The terms of engagement all relate to the claimant directly undertaking the work for the third party.[22]The claimant was not an employee of the second respondent. She was an agency worker. The contract of employment existed between the claimant and the first respondent. There was no contact between the claimant and the second respondent.[23]The claimant was also a prospective recipient of a service provided by the first respondent as an employment service provider. This was conceded by the first respondent.[24]It is just and equitable to allow an extension of time. The delay caused was minimal and did not prejudice the first respondent which is able to defend the claim in the same way as if it had been brought in time. The cogency of the evidence is not impacted. On the other hand, the prejudice to the claimant in not allowing the extension would be that her claims could not proceed. The reasons for the delay include that the claimant had been signed off sick by her GP in August 2023 and assessed by local mental health services in September 2023 which affected her ability to deal with the claim more promptly. I also accept her evidence that she made a mistake in the name of the first respondent, which she corrected as soon as she realized the error had been made. A new ACAS certificate was required to be issued. The error appears to have been an easy one to make, as the names in the two ACAS certificates are very similar. This added a small amount of delay. Approved by:[1]Leave to amend is refused to bring a claim of victimisation as against the first respondent.[2]The claim of unauthorised deductions from wages is dismissed on withdrawal by the claimant