Mr J Doris v Royal Mail Group Ltd and others: 3313401/2023
EMPLOYMENT TRIBUNALS
Case No 3313401/2023
Between
Mr J DorisClaimantRoyal Mail Group Limited (R1) Gi Group Recruitment Limited (R2) Angard Staffing Solutions Limited (R3) Manpower UK Ltd (R4)Respondent
Before
Employment Judge Quill (in the hearing room)In person for claimantDate 5 August 2024
JUDGMENT
[1]All claims against R4 are dismissed on withdrawal and it is therefore not necessary for me to decide paragraphs 1.1.2 and 1.2.2 of the list of preliminary issues.[2]In relation to paragraphs 1.1.1 and 1.2.1 of the list of preliminary issues, the Claimant was an “employee” of R3 [applying the definitions in section 230 of the Employment Rights Act 1996 (“ERA”)] from 6 March 2019 until a date that was no earlier than early April 2020 and no later than 23 June 2020.[3]In relation to paragraph 1.3 of the list of preliminary issues, between those Case No: 3313401/2023 same dates (as a minimum), the Claimant was an employee of R3’s within the meaning of section 83 of the Equality Act 2010 (“EQA”). A final decision about the exact dates of “employment” within section 83 EQA was not one of the preliminary issues to be decided today, but the period in question (for section 83 EQA) is not shorter than the period for which the Claimant was an “employee” within the ERA definitions.[4]In relation to paragraph 1.4.1 of the list of preliminary issues, there was no contract, express or implied, between the Claimant and R1 at the relevant dates. It therefore follows that the Claimant was not a “worker” of R1’s at the relevant dates. There was no contract falling within either “limb A” or “limb B” of section 230(3) ERA.[5]The preliminary issues to be decided today did not include: “Was the claimant an employee of the first respondent within the meaning of section 83 of the Equality Act 2010?”. Strictly speaking, therefore, that question has not been decided as a preliminary issue. However, my decision that there was no contract at all between the Claimant and R1 (which had to be determined to deal with preliminary issue 1.4.1) is intended to be final (subject to reconsideration or appeal), and is therefore likely to be found to be determinative of the section 83 EQA issue too.[6]In relation to paragraph 1.4.2 of the list of preliminary issues, the relationship between the Claimant and R2 is such that the Claimant was a “worker”, within the meaning of section 230 ERA. The preliminary issues did not require me to decide start and finish dates, or to decide which of “Limb A” or “Limb B” of section 230(3) ERA the contract fell into (provided it was covered by one of them, which it was).[7]For avoidance of doubt, no decisions have been made about whether any of the parties fall within any of the definitions in section 41 EQA, or about whether the Claimant is a “worker” within the expanded definition in section 43K ERA (or whether R1 was the Claimant’s “employer” within the expanded definition in section 43K ERA).[8]The following claims are dismissed because of employment status: 8.1. Any claim against R1 for unauthorised deduction from wages, or holiday pay, or unfair dismissal. 8.2. For avoidance of doubt, the claim identified at item 6.1.6 of list of issues, as a detriment claim, is not dismissed.[9]The Claimant alleges unauthorised deduction from wages by R2 for the period April 2023 to July 2023. The alleged deductions in that period form part of a series of alleged deductions which continued until after 20 June 2023. The complaint for that series of deductions is in time.[10]All complaints of alleged deductions prior to that alleged series did not form part of the same series of deductions. The latest date to present a claim for those earlier alleged deductions was 30 November 2022. Case No: 3313401/2023[11]It would have been reasonably practicable to present a claim by 30 November 2022 and the claim alleging deductions up to 31 August 2022 (or any other alleged deductions prior to April 2023) is therefore out of time, and the Tribunal does not have jurisdiction.[12]As a result of the decision on time limits, the following complaints are dismissed. 12.1. Any claim against R3 (or R1) for unauthorised deduction from wages, including holiday pay. 12.2. Any claim against R2 for unauthorised deduction from wages, other than the alleged non-payment for April 2023 to July 2023. 12.3. Any claim against R2 for holiday pay, other than for payment in lieu of holiday on termination.
REASONS
Introduction
[1]Rules 70-72 of the Tribunal Rules provides as follows: 70. Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. 71. Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 72. Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked(including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application. Case No: 3313401/2023 Page 2 of 4(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. …[2]The Tribunal has discretion to reconsider a judgment if it considers it in the interests of justice to do so. Rule 72(1) requires the judge to dismiss the application if the judge decides that there is no reasonable prospect of the original decision being varied or revoked. Otherwise, the application is dealt with under the remainder of Rule 72.[3]In deciding whether or not to reconsider the judgment, the tribunal has a broad discretion, which must be exercised judicially, having regard not only to the interests of the party seeking the reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[4]The reconsideration rules and procedure are not intended to provide an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way. They are not intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed (with or without different emphasis). Nor do they provide an opportunity to seek to present new evidence that could have been presented prior to judgment.[5]Under the current version of the rules, there is a single ground for reconsideration — namely, “where it is necessary in the interests of justice”. In Outasight VB Ltd v Brown 2015 ICR D11, the EAT explained that the revision to the rules had not been intended to make it more easy or more difficult to succeed in a reconsideration application. In the current version of the rules, it had not been necessary to include more specific grounds for an application because an application relying on any of those other arguments can still be made in reliance on the “interests of justice” grounds.[6]When deciding what is “necessary in the interests of justice”, it is important to have regard to the overriding objective to deal with cases fairly and justly, which includes: ensuring that the parties are on an equal footing; dealing with cases in ways which are proportionate to the complexity and importance of the issues; avoiding unnecessary formality and seeking flexibility in the proceedings; avoiding delay, so far as compatible with proper consideration of the issues; and saving expense.[7]The situation remains, as it had been prior to the 2013 rules, that it is not necessary for the applicant to go as far as demonstrating that there were exceptional circumstances justifying reconsideration. There does, however, have to be a good enough justification to overcome the fact that, when issued, Case No: 3313401/2023 Page 3 of 4 judgments are intended to be final (subject to appeal) and that there is therefore a significant difference between asking for a particular matter to be taken into account before judgment (even very late in the day) and after judgment. As was stated in Ebury Partners Uk Limited v Mr M Acton Davis Neutral Citation Number: [2023] EAT 40 The employment tribunal can therefore only reconsider a decision if it is necessary to do so “in the interests of justice.” A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a “second bite of the cherry” and the jurisdiction to reconsider should be exercised with caution. The Claimant’s application[8]The Claimant submitted an email dated 3 October 2024, within the relevant time limit, seeking reconsideration.[9]I am aware of the contents of the emails of 17 October 2024 at 12:23 from the representatives of R1 and R3, and of 16 October 2024 at 12:51 from the representatives of R2. I have not taken those comments into account. The respondents would have the opportunity to comment should the application get past the “no reasonable prospects” stage, but not otherwise.[10]The Claimant’s comments about preliminary issue 1.4.1 suggest that my legal conclusion was wrong. He does not suggest that he has obtained new evidence, or possesses evidence that he failed to provide at the hearing. Although it is sometimes appropriate to correct a clear error of law on reconsideration, I do not consider that there was a clear error of law1, and, following Ebury, if the Claimant seeks to challenge the decision, it is more appropriate to do so by way of appeal (to the Employment Appeal Tribunal) rather than by way of reconsideration.[11]The same applies to what he says about “Schedule 2”, paragraphs 3, 4 and 5.2 and 6.1.6.[12]In relation to time limits for the deductions from 10 June 2020 to 31 August 2022, the Claimant’s arguments that it was not reasonably practicable to bring the claim in time because he had not noticed the (alleged) shortfall and/or because he was working hard and was exhausted have no reasonable prospects of causing me to change my decision. He had every opportunity to put forward any arguments or evidence at the hearing on the time limit point.[13]For the reasons stated above, having considered the Claimant’s application, I am satisfied that there is no reasonable prospect of the original decision 1 In fact, I do not consider that there is any error of law, but that is a separate point. Case No: 3313401/2023 Page 4 of 4 being varied or revoked, and the application is refused. Employment Judge Quill Date: 25 October 2024[1]Employment status1.1 Was the claimant an employee of:1.1.1 The third respondent within the meaning of section 230 of the Employment Rights Act 1996?1.1.2 The fourth respondent within the meaning of section 230 of the Employment Rights Act 1996?1.2 If so, for what period was the claimant employed by:1.2.1 The third respondent?1.2.2 The fourth respondent?1.3 Was the claimant an employee of the third respondent within the meaning of section 83 of the Equality Act 2010?1.4 Was the claimant a worker of the:1.4.1 First respondent within the meaning of section 230 of the Employment Rights Act 1996?1.4.2 Second respondent within the meaning of section 230 of the Employment Rights Act 1996?1.5 Do the decisions about employment status mean that any of the claims against the respondents do not proceed to a final hearing?[2]Time limits 2.1 Were the unauthorised deductions made within the time limit in section 23 of the Employment Rights Act 1996? The Tribunal will decide:2.1.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made?2.1.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?2.1.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?2.1.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[3]The decisions that I made at the hearing were set out respectively in the judgment and in the case management summary and orders document. Those decisions were made having taken account of the parties’ submissions, and of the evidence which I received during the hearing.
The Law
[4]The definitions of employee and worker appear in s.230 of the Employment Rights Act 1996. (“ERA”) Case Number: 3313401/2023 Page 3 of 24 230.— Employees, workers etc.(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract shall be construed accordingly.(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.(5) In this Act “employment”— (a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and (b) in relation to a worker, means employment under his contract; and “employed” shall be construed accordingly.(6) This section has effect subject to sections 43K, 47B(3) and 49B(10); and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker's contract” and, in relation to a worker, “employer” , “employment” and “employed” have the extended meaning given by section 43K.(7) This section has effect subject to section 75K(3) and (5).[5]There does have to be a contract between the parties. If there is no contract between the parties then the claimant cannot be an employee.[6]However, where there is a contract then there are a number of tests to apply in order to determine whether that is, on the one hand, a contract of service (to use the old terminology) or a contract of employment (to use the more modern terminology), or, on the other hand, some other type of contract.[7]Subsection (3) of section 230 ERA defines worker; the part of the definition in paragraph (b) describes something that is sometimes known as a “Limb B worker”. Because of paragraph (a), anyone who has a contract of employment falls within the definition of “worker” contained in subsection (3) of section 230 ERA, However, Case Number: 3313401/2023 Page 4 of 24 the definition of “worker" is not limited to people who have a contract of employment.[8]To be a “Limb B worker”, there does have to be a contract between the parties. If there is no contract between the parties then the claimant cannot be “Limb B worker”. Furthermore, this cannot be a contract of employment. A contract of employment would mean that the person was a worker because they fell within section 230(3)(a) ERA. To fall within section 230(3)(b), there has to be some “other contract”, not a contract of employment.[9]Thus, in general, when it is true that there is a contract of some sort between the Claimant and the Respondent, there are three possibilities:9.1 That it is a contract of employment.9.2 That it is a contract such that the Claimant is a Limb B worker9.3 That it is neither of the above, and the Claimant is not a worker at all.[10]However, when considering Part IVA ERA, in particular, as section 230(6) makes clear, there is an expanded definition of “worker” for the purpose of considering who is protected (and from whom) when they make a protected disclosure. Deciding whether a contract is a contract of employment[11]Making the decision includes taking account of the following factors. Where some of these factors point in opposite directions, then it is necessary to weigh them up and assess their relative importance.11.1 There has to be sufficient control by the respondent (the alleged employer).11.2 There has to be a mutuality of obligation11.3 There has to be an agreement by the claimant to do the work personally.[12]The degree of control which must be exercised by the respondent over the claimant in order for there to be a decision that the contract in question is a “contract of employment” is discussed in Ready Mixed Concrete v Ministry of Pensions and National Insurance [1967] EWHC QB 3. The factors relevant to mutuality of obligation are discussed in Carmichael v National Power [1999] UKHL 47. Deciding whether the contract is a Limb B Worker contract[13]The Tribunal must have regard to the purpose behind the legislation when deciding whether a particular contract is such that the Claimant has the protections granted to “workers” by section 230(3)(b) ERA. Case Number: 3313401/2023 Page 5 of 24[14]In Byrne Bros (Formwork) Ltd v Baird EAT/542/01, at paragraph 17, the EAT commented: (4) It seems to us that the best guidance is to be found by considering the policy behind the inclusion of limb (b). That can only have been to extend the benefits of protection to workers who are in the same need of that type of protection as employees stricto sensu — workers, that is, who are viewed as liable, whatever their formal employment status, to be required to work excessive hours (or, in the cases of Part II of the Employment Rights Act 1996 or the National Minimum Wage Act 1998 , to suffer unlawful deductions from their earnings or to be paid too little). The reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-á-vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position. Thus the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arm's-length and independent position to be treated as being able to look after themselves in the relevant respects. (5) Drawing that distinction in any particular case will involve all or most of the same considerations as arise in drawing the distinction between a contract of service and a contract for services — but with the boundary pushed further in the putative worker's favour. It may, for example, be relevant to assess the degree of control exercised by the putative employer, the exclusivity of the engagement and its typical duration, the method of payment, what equipment the putative worker supplies, the level of risk undertaken etc. The basic effect of limb (b) is, so to speak, to lower the pass-mark, so that cases which failed to reach the mark necessary to qualify for protection as employees might nevertheless do so as workers.[15]The contract has to be such that the Claimant has agreed to work personally for the Respondent.15.1 An unfettered right to substitute another person to do the work or perform the services is inconsistent with a requirement to do the work “personally”; however,15.2 a conditional right to substitute may or may not be inconsistent with personal performance, but this will ultimately depend on the nature and extent of the conditionality. This was discussed in Pimlico Plumbers Ltd v Smith [2018] UKSC 29, at paragraphs 20 to 34, and the Supreme Court’s analysis included:[20]If he was to qualify as a limb (b) worker, it was necessary for Mr Smith to have undertaken to "perform personally" his work or services for Pimlico. An obligation of personal performance is also a necessary constituent of a contract of service; so decisions in that field can legitimately be mined for guidance as to what, more precisely, personal performance means in the case of a limb (b) worker.[21]Express & Echo Publications Ltd v Tanton [1999] ICR 693 was a clear case. Mr Tanton contracted with the company to deliver its newspapers around Devon. A term of the contract provided: Case Number: 3313401/2023 Page 6 of 24 "In the event that the contractor is unable or unwilling to perform the services personally he shall arrange at his own expense entirely for another suitable person to perform the services." The Court of Appeal held that the term defeated Mr Tanton's claim to have been employed under a contract of service.[22]Nevertheless, in his classic exposition of the ingredients of a contract of service in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 , Mackenna J added an important qualification. He said at p 515: "Freedom to do a job either by one's own hands or by another's is inconsistent with a contract of service, though a limited or occasional power of delegation may not be …" He cited Atiyah's Vicarious Liability in the Law of Torts (1967), in which it was stated at p 59 that "it seems reasonably clear that an essential feature of a contract of service is the performance of at least part of the work by the servant himself". 16. A further requirement to be a Limb B Worker is that the Claimant will fall outside the definition if it is determined that:16.1 The Claimant was carrying out a profession or business, and16.2 By virtue of the contract, the Respondent’s status was that of a client or customer of that profession or business 17. In Byrne Bros within at paragraph 17, the EAT noted: (2) “[Carrying on a] business undertaking” is plainly capable of having a very wide meaning. In one sense every “self-employed” person carries on a business. But the term cannot be intended to have so wide a meaning here, because if it did the exception would wholly swallow up the substantive provision and limb (b) would be no wider than limb (a). The intention behind the regulation is plainly to create an intermediate class of protected worker, who is on the one hand not an employee but on the other hand cannot in some narrower sense be regarded as carrying on a business. … It is sometimes said that the effect of the exception is that the Regulations do not extend to “the genuinely self-employed”; but that is not a particularly helpful formulation since it is unclear how “genuine” self-employment is to be defined. 18. In Cotswold Developments Construction Ltd v Williams [2006] IRLR 181, at paragraph 53, the EAT he stated: "… a focus upon whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, will in most cases demonstrate on which side of the line a given person falls." Case Number: 3313401/2023 Page 7 of 24 19. In Jivraj v Hashwani [2011] UKSC 40, the Supreme Court identified the relevant question as being: "… whether, on the one hand, the person concerned performs services for and under the direction of another person in return for which he or she receives remuneration or, on the other hand, he or she is an independent provider of services who is not in a relationship of subordination with the person who receives the services." Section 83 of the Equality Act 2010 (“EQA”) 20. In EQA, section 83 defines “employment” for the purposes of Part 5. (2) “Employment” means— (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work; … (4) A reference to an employer or an employee, or to employing or being employed, is (subject to section 212(11)) to be read with subsections (2) and (3); and a reference to an employer also includes a reference to a person who has no employees but is seeking to employ one or more other persons. 21. Section 83 of EQA uses a wider definition of employment than in section 230(1) ERA. People who are genuinely self-employed will not fall within the definition. However, by comparison to the definitions in section 230(3), a person who is a “worker” as defined by section 230(3) ERA will be an “employee” as defined by section 83 EQA. 22. There does have to be a contract between respondent and claimant for section 83 to apply, and it has to be for the Claimant to personally do the work in question.[23]In Smith, the Supreme Court noted:13. On its face section 83(2)(a) of the Equality Act defines "employment" in terms different from those descriptive of the concept of a "worker" under section 230(3) of the Act and under regulation 2(1) of the Regulations. For it defines it as being either under a contract of employment or of apprenticeship or under "a contract personally to do work". Comparison of the quoted words with the definition of a limb (b) "worker" in section 230(3) of the Act demonstrates that, while the obligation to do the work personally is common to both, the Equality Act does not expressly exclude from the concept a contract in which the other party has the status of a client or customer.14. As it happens, however, this distinction has been held to be one without a difference. Part 5 of the Equality Act , which includes section 83 , primarily gives effect to EU law. Article 157(1) of the Treaty on the Functioning of the European Union requires member states to ensure application of "the principle of equal pay for male and female workers for equal work or work of equal value". In Allonby v Accrington and Rossendale College (Case C-256/01) [2004] ICR 1328 the Court of Justice of the European Communities, at paras 67 and 68, interpreted the word "workers" in what Case Number: 3313401/2023 Page 8 of 24 is now article 157(1) as persons who perform "services for and under the direction of another person in return for which [they receive] remuneration" but excluding "independent providers of services who are not in a relationship of subordination with the person who receives the services". In Hashwani v Jivraj [2011] UKSC 40, [2011] 1 WLR 1872, the Supreme Court applied the concepts of direction and subordination identified in the Allonby case to its interpretation of a "contract personally to do … work" in the predecessor to section 83(2)(a). In Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32, [2014] 1 WLR 2047, Lady Hale observed at paras 31 and 32 that this interpretation of the section yielded a result similar to the exclusion of work for those with the status of a client or customer in section 230(3) of the Act and in regulation 2(1) of the Regulations. She added, however, at para 39 that, while the concept of subordination might assist in distinguishing workers from other self-employed people, the Court of Appeal in that case had been wrong to regard it as a universal characteristic of workers.[24]The paragraphs referred to from Bates van Winkelhof v Clyde & Co were:[31]As already seen, employment law distinguishes between three types of people: those employed under a contract of employment; those self-employed people who are in business on their own account and undertake work for their clients or customers; and an intermediate class of workers who are self- employed but do not fall within the second class. Discrimination law, on the other hand, while it includes a contract “personally to do work” within its definition of employment (see, now, Equality Act 2010, s 83(2) ) does not include an express exception for those in business on their account who work for their clients or customers. But a similar qualification has been introduced by a different route.[32]In Allonby v Accrington and Rossendale College (Case C-256/01) [2004] ICR 1328, the European Court of Justice was concerned with whether a college lecturer who was ostensibly self-employed could nevertheless be a “worker” for the purpose of an equal pay claim. The Court held, following Lawrie-Blum v Land Baden-Wurttemberg (Case C-66/85) [1987] ICR 483 that “there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration” (para 67). However, such people were to be distinguished from “independent providers of services who are not in a relationship of subordination with the person who receives the services” (para 68). The concept of subordination was there introduced in order to distinguish the intermediate category from people who were dealing with clients or customers on their own account. It was used for the same purpose in the discrimination case of Jivraj v Hashwani.[39]… there is “not a single key to unlock the words of the statute in every case”. There can be no substitute for applying the words of the statute to the facts of the individual case. There will be cases where that is not easy to do. But in my view they are not solved by adding some mystery ingredient of “subordination” to the concept of employee and worker. The experienced employment judges who have considered this problem have all recognised that there is no magic test other than the words of the statute themselves. As Elias J recognised in Redcats, a small business may be genuinely an independent business but be completely dependent upon and Case Number: 3313401/2023 Page 9 of 24 subordinate to the demands of a key customer (the position of those small factories making goods exclusively for the “St Michael” brand in the past comes to mind). Equally, as Maurice Kay recognised in Westwood, one may be a professional person with a high degree of autonomy as to how the work is performed and more than one string to one's bow, and still be so closely integrated into the other party's operation as to fall within the definition. As the case of the controlling shareholder in a company who is also employed as chief executive shows, one can effectively be one's own boss and still be a “worker”. While subordination may sometimes be an aid to distinguishing workers from other self- employed people, it is not a freestanding and universal characteristic of being a worker. Deciding what the actual agreement was 25. Outside the field of employment law the ability of the courts to look behind the a written express contract is limited to situations where the partis have a common intention to mislead a third party as to the true nature of the arrangement and that is called a “sham”. However, in the field of employment law, that principle is modified by the leading cases of Autoclenz Limited v Belcher [2011] UKSC 41 and Uber v Aslam [2021] UKSC 5. A tribunal that is faced with an allegation that a written contract is not what it appears to be must consider whether or not the words in the written contract represent the true intentions or expectations of the parties. In doing so, it is relevant to take into account that the purpose of employment legislation (including of the Employment Rights Act 1996 and the Equality Act 2010) is to provide protection, including to those who do not have equal bargaining power with the alleged employer. 26. A tribunal faced with an argument that the claimant’s assertion to be an employee or a worker is defeated by a written document must consider whether or not the words of the written contract represent the true intentions or expectations of the parties (and therefore their implied agreement and contractual obligations). The Tribunal must answer that question not only when deciding those intentions or expectations at the inception of the contract, but also at any later stage where the evidence shows that the parties have expressly or impliedly varied the agreement between them. 27. Determining the true intentions of the parties does not mean that a tribunal should base its decision on what one (or each) party thought privately to itself; rather it requires the tribunal to determine what was actually mutually agreed – in reality – between the parties. 28. The principles do not apply just to analysis of written contracts between alleged employer and alleged employee. For example, in Protectacoat Firthglow Ltd v Szilagyi 2009 ICR 835, CA (“Szilagyi”) there was what purported to be a written partnership agreement between the Claimant and a third party, which also fell to be analysed in a manner which took account of the role of the alleged employer, and its bargaining power. In Szilagyi, if the Claimant’s case was correct, then there Case Number: 3313401/2023 Page 10 of 24 would really be no “third party” at all; the partnership would not exist, and the other member of the partnership would also (potentially) be a worker or employee. 29. Similarly, in Uber, what were, on the face of it, contracts between the claimants and third parties were actually drawn up by the respondent. The lack of a written agreement between the Claimant and the Respondent did not prevent a finding that there was such a contract, and the written agreements with the third parties did not prevent a finding that the true nature of the agreement between the Claimant and the Respondent was such that they were Limb B Workers. 30. In Dynasystems for Trade and General Consulting Ltd v Moseley EAT 0091/17, the issue was the identity of the claimant’s true employer. The claimant had started work in 2011 and had been issued with a contract that expressly stated that he was employed by DTGC Ltd, a Jordanian company. However, at the same time, the Claimant also received a letter of authority signed by D Ltd. Throughout the following years, the claimant did no work for DTGC Ltd and dealt only with D Ltd. All of his instructions came from directors and employees of D Ltd, and he was held out to third parties as being an employee of D Ltd. Salary payments were made to him by DTGC Ltd. The tribunal decided that the terms of the written contract with DTGC Ltd did not reflect the actual agreement between the parties, and that - in reality – the true agreement that had been reached was that the UK company was the employer. The EAT held that the tribunal had correctly applied Autoclenz and had taken an appropriate approach to evidence about the subsequent course of dealing between the parties when analysing what the 2011 agreement had been. Situations were there is a genuine tripartite relationship 31. As just mentioned, when the alleged employer argues that there was, in reality, no direct contract between them and the claimant, that assertion does not have to be taken at face value. The Tribunal might decide, applying Uber principles, that the true nature of the agreement was that the true nature of the agreement between the parties resulted in a direct contract between claimant and respondent. However, there can also be situations where it is genuinely true that each of the claimant and the respondent did have contracts with a third party. 32. There can be situations where:32.1 there is an actual tripartite relationship, between A, B and C, and where C does work for A, but with no express contract (written or otherwise) between A and C.32.2 A and B have a contract such that B agrees to supply an individual (C) to do work for A which is supervised by A, and A agrees to pay B for this; Case Number: 3313401/2023 Page 11 of 2432.3 B and C have a contract such that C agrees with B that C will do work for A which is supervised by A, and B agrees to pay C for this. 33. In a situation such as this one, the test for whether there is an implied contract directly between A and C is as set out in James v Greenwich UKEAT/0006/06, which in turn referred to the test explained in The Aramis [1989] 1 Lloyd's Rep 213 (“Aramis”). In order to imply a contract, the question is whether it is necessary to imply a contract between the worker and the end user “in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with one another in circumstances in which one would expect that business reality and those enforceable obligations to exist.” 34. As per Aramis, the fact that the conduct of the parties was more consistent with an intention to contract than with an intention not to contract it is insufficient to imply a contract between them. Furthermore, if A and C would (or might) have acted exactly as they did in the absence of a direct contract between them, then that is fatal to the argument that it is necessary to imply a contract between them. 35. This test of necessity is the correct test to apply even in situations where there is a lengthy and/or complex chain of organisations involved in the supply of C to A, and even in situations where the claimant raises a human rights argument to suggest that proper protection of C’s rights requires that s/he have the same rights that would be afforded to a worker or employee of A’s. 36. As per Dacas v. Brook Street Bureau (UK) Ltd [2004] ICR 1437, the existence of an implied contract between the individual and the end user is a possible finding that a court or tribunal might make in an appropriate case, if such a decision is justified on the facts, and if the necessity test is met. 37. As discussed by the Court of Appeal in Tilson v Alstom Transport, [2010] EWCA Civ 1308, 2010 WL 4642142:37.1 The mere fact alone that C might be integrated in A’s business does not make it necessary to imply a contract between A and C, because it is equally consistent with someone supplied to work as an agency worker. The court added, at paragraph 41, “The degree of integration may arguably be material to the issue whether, if there is a contract, it is a contract of service. But it is a factor of little, if any, weight when considering whether there is a contract in place at all.”37.2 A simple divergence between what one of the written contracts says and the actual practice does not – in itself – make it necessary to imply a contract between A and C. It could be the case, for example, that one of the parties is in breach of the contract between A and B, or in breach of the contract between B and C, without the fact of that breach existing (and – perhaps – being ignored or waived) making it necessary to imply a contract between A and C. On the Case Number: 3313401/2023 Page 12 of 24 facts of that case, a s per paragraph 47, “The contract between Morson and Alstom under which Morson undertook to provide his services fully explained why he was working for Alstom, and there was no evidence before the Employment Tribunal that in their dealings with the appellant, Alstom acted inconsistently with the terms of that contract.”37.3 The mere fact alone that C might have to give advance notice to A of absence (or even the fact that A might have the right to veto C’s voluntary absence) is not, in itself, enough to require that a contract between A and C needs to be implied to explain the business reality. Time Limits 38. Section 207B of ERA and 140B EQA are worded similarly, and each describes how time limits are affected by early conciliation. In summary:38.1 Where early conciliation commences after the time limit has expired, then the time limit is not extended.38.2 Where early conciliation commences before the time limit expires, then the Claimant will have at least a calendar month from then end of the conciliation (“Day B”) to present the claim.38.3 In some cases, they might have longer than one month from Day B. The period from the day after conciliation starts until Day B is ignored when calculating the time limit. 39. Insofar as it is relevant, section 23 ERA states: (2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, … (3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments … … the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (3A) … section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply for the purposes of subsection (2). (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period Case Number: 3313401/2023 Page 13 of 24 of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.[40]As made clear by the Supreme Court in Chief Constable of the Police Service of Northern Ireland v Agnew [2023] UKSC 33, when considering whether deductions form part of a series, the Tribunal must take into account all relevant factors and ignore all irrelevant factors. The question is not decided solely by analysing the gap between successive deductions, although the length of time between successive deductions will be relevant. Whether there is a “series” of deductions is a question of fact, requiring a sufficient factual and temporal link between the underpayments. There must be a sufficient similarity of subject matter, so that each event is factually linked. There might, of course, be a factual dispute between the parties as to why particular deductions were made, and that will have to be resolved prior to deciding whether the deductions form part of a “series”. The mere fact alone that the Claimant remained employed under same contract when particular deductions were made does not, in itself, establish they were part of the same series.[41]If the latest of the series of deductions was out of time, then the Tribunal needs to consider section 23(4) ERA. Reasonable Practicability[42]When a claimant argues that it was not reasonably practicable to present the claim within the time limit, there are questions of fact for the tribunal to decide. In other words, whether it was, in fact, reasonably practicable or not. The onus of proving it was not is on the claimant. When doing so, the phrase “not reasonably practicable” should be given a liberal interpretation in favour of the Claimant.[43]If the tribunal is satisfied that it was not reasonably practicable to present the claim within the time limit, then it is necessary to consider whether the period between the expiry of the time limit and the eventual presentation of the claim was reasonable in the circumstances. This does not necessarily mean that the Claimant has to act as fast as would be reasonably practicable.[44]The fact that an employee pursued an internal appeals procedure is a relevant circumstance which can, and should, be considered by the tribunal. However, generally speaking, it is not usually enough by itself to make it "not reasonably practicable" for the complaint to be presented within the prescribed period, even if the employer is slow to announce the outcome. See the Court of Appeal’s review in Palmer and anor v Southend-on-Sea Borough Council 1984 ICR 372.[45]When a claimant is ignorant about (or makes a mistake about) a fact which is relevant to the calculation of time limit (and/or their ability to seek to enforce their rights), the question is whether that ignorance (or that mistake) is reasonable. Case Number: 3313401/2023 Page 14 of 24[46]The assessment of reasonableness has to take into account that a potential claimant ought to be aware of the importance of not missing a time limit.[47]Even if it is true that the claimant did not know all of the relevant true facts at the time of the deduction, then that does not necessarily mean that it was not reasonably practicable to issue the claim in time. The claimant must also show that the ignorance was reasonable and that he could not reasonably have been expected to have discovered the true situation during the limitation period.[48]Furthermore, ignorance of the true facts must be the actual reason for failing to issue the claim sooner.[49]Fault on the part of the claimant’s adviser may be a relevant factor when determining whether it was reasonably practicable for the claimant to present the claim within the prescribed time limit. It is important to consider all the circumstances and the type of adviser involved.[50]Health issues potentially could amount to a factor such that it was not reasonably practicable to present the claim in time. That will depend on the Claimant proving that the health issues did have that effect.
The Facts
[51]The claimant entered into an agreement with R3 in March 2019 [Bundle 214].[52]It specifies that it is a contract of employment and the respondents do not allege otherwise.[53]R3 is a separate entity to R1 but is wholly owned by R1.[54]By virtue of the contract with R3, the Claimant agreed, with R3, to do work for R1 which was described as a secondment arrangement. Clause 1.2 stated: You are employed by Angard but you shall be seconded to the Royal Mail Companies during any period of engagement (an "Engagement’') This statement also sets out the terms and conditions that will apply to an Engagement. During an Engagement you shall remain employed by Angard and your terms and conditions of employment shall be governed by this statement. You shall carry out any work that is reasonably required of you by Angard at Royal Mail's request. You shall continue to report to, and be managed by Angard but shall report on day-to-day matters to such person at Royal Mail as notified to you from time to time.[55]Clause 3 of the agreement stated that it would automatically terminate 28 days after the end of his last engagement if he did not work on another Engagement. As per clause 1.2, “Engagement” meant a secondment to R1. Case Number: 3313401/2023 Page 15 of 24[56]The Claimant also had done some work directly for R1 but that was many years ago.[57]At different times, the Claimant has also done work for R1 either via R4 (which has been dismissed from the proceedings) or via R2.[58]Historically, the Claimant had only been able to do work for R1 via R2 at particular times of year, specifically Christmas. However, in around March or April or May of 2020, the Claimant became dissatisfied with the number of assignments (or “Engagements” to use the expression in clause 1.2 of the agreement) which R3 was providing to him. The Claimant had formed the belief that it might be possible to get more assignments (to do work for R1) via R2. The Claimant was confident that that would be the case and, in fact, it did turn out to be the case.[59]In approximately January 2020, the Claimant had signed an agreement with R2. This appears at [Bundle 294]. It stated that the claimant was not obliged to accept any assignment offered to him by R2[60]The document stated it was not a contract of employment. (That is a relevant factor but not conclusive. It is ultimately a question for me to decide; I am merely finding, as a fact, what was written in the document)[61]The written document specified that the claimant was under no obligation to accept assignments which were offered to him. It did contain obligations to notify R2 if the Claimant accepted an assignment but was unable to attend it.[62]The contract specified what an assignment was and what could lead to the termination of the assignment.[63]The definitions included: “Assignment" means assignment services to be performed by the Agency Worker for the Hirer for a period of time during which the Agency Worker is supplied by the Employment Business to work temporarily for and under the supervision and direction of the Hirer; "Engagement" means the engagement (including the Agency Worker's acceptance of the Hirer's offer), employment or use of the Agency Worker by the Hirer or any third party to whom the Agency Worker has been introduced by the Hirer, on a permanent or temporary basis, whether under a contract of service or tor Services, and/or through a company of which the Agency Worker is an officer, employee or other representative, on agency, license, franchise or partnership arrangement, or any other engagement; and "Engage", "Engages' and “Engaged" shall be construed accordingly; "Hirer" means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) to whom the Agency Worker is supplied or introduced; Case Number: 3313401/2023 Page 16 of 24[64]The termination clause stated: 9. TERMINATION 9 1 . Any of the Employment Business, the Agency Worker or the Hirer may terminate the Agency Worker's Assignment at any time without prior notice or liability. 9.2. The Agency Worker acknowledges that the continuation of on Assignment is subject to and conditioned by the continuation of the contract entered into between the Employment Business and the Hirer. In the event thot the contract between the Employment Business and the Hirer is terminated for any reason the Assignment shall cease with immediate effect without liability to the Agency Worker (save for payment for hours worked by the Agency Worker up to the date of termination of the Assignment). 9.3. If the Agency Worker does not inform the Hirer or the Employment Business that they are unable to attend work during the course of an Assignment (as required in clause 4.3} this will be treated as termination of the Assignment by the Agency Worker in accordance with clause 9. 1, unless the Agency Worker can show that exceptional circumstances prevented him or her from complying with clause 4.3. 9.4. If the Agency Worker is absent during the course of an Assignment and the Assignment has not been otherwise terminated under clauses 9.1 or 9.3 above the Employment Business will be entitled to terminate the Assignment in accordance with clause 9.1 if the work to which the Agency Worker was assigned is no longer available. 9.5. If the Agency Worker does not report to the Employment Business to notify his/her availability tar work for a period of 7 weeks, the Employment Business will forward his/her P45 to his/her last known address.[65]The written document asserted that R2 was a temporary work agency and made reference to the Agency Worker Regulations.[66]Although the agreement was signed in January 2020, the Claimant did not do work in accordance with that contract with R2 during January, February, March or April of 2020.[67]The Claimant started doing assignments (doing work for R1) under the agreement with R2 in May 2020. That work continued until around April 2023.[68]There is a dispute about the events leading up to the cessation of assignments and about the reasons that the Claimant did not do work for R1 (whether supplied to R1 by R2, or at all) between April and July 2023.[69]However, it appears to be common ground between the parties that the arrangement between the Claimant and R2 - described as Contract for Services for Temporary Workers (Terms of Engagement) in the written document - did not cease any earlier than July 2023. Case Number: 3313401/2023 Page 17 of 24[70]The Claimant’s last assignment provided by R3 (to do work for R1) was in April 2020. The Claimant did not make any assertion at the time that R3 was obliged to carry on paying him after April 2020, given that he had ceased working for R3.[71]On 23 June 2020 [Bundle 486], there was an email from R2 to the Claimant, asking the Claimant to make arrangements with the operators of “Joined Up” (a software package) for the Claimant to cease to be assigned (within the Joined Up software) to R3 and to become assigned to R2 instead.[72]On 24 June 2020, the Claimant wrote back to R2 to state that he had done this and that there had been a change of agency.[73]My finding is that - at the very latest – the Claimant had brought his arrangement with R3 to an end by (no later than) 24 June 2020. As a result of his conscious actions, he was aware that, from that date onwards (at the latest), he was no longer going to receive any shifts or assignment from R3 and any opportunities to do work for R1 would received via R2 only. (Unless, of course, there was a change of circumstances, such as entering into a new contract with R1, or someone else.)[74]Prior to 24 June 2020, the Claimant was aware (or, at least he had signed a contract which specified) that his arrangement with R3 would automatically cease after 28 days of no assignments from them. Between April and June 2020, the Claimant took no action to try to get more work from R3 or to try to keep the contract with R3 alive.[75]Furthermore, in the document produced by the claimant [Bundle 180], at paragraph 3, the Claimant states that, in April 2020, the contract work with R3 was “suspended and terminated”.[76]The Claimant has listed the alleged shortfalls in his wages from 10 June 2020 to 31 August 2022 [Bundle 553 to 567].[77]All of those shortfalls are during the period when R2 was giving the claimant assignments to work for R1. It is the Claimant’s case that R1 is responsible for the shortfalls (though that argument is not crucial to the time limit considerations). The Claimant alleges that there was work which the Claimant actually did for R1 (via R2) and for which he alleges he was underpaid.[78]The Claimant makes no allegations of underpayments for work done in the months from September 2022 until March 2023 inclusive.[79]He argues that there were deductions from April 2023 to July 2023 inclusive. The argument for those months is that he was not actually doing any work for R2 and/or R1 but that he was entitled to receive payments because of the particular circumstances that caused the absence. Case Number: 3313401/2023 Page 18 of 24[80]I do not need to resolve the argument about whether the Claimant was, or was not, entitled to the sums that he alleges. However, as just stated, for the earlier period he alleges that he did work, and was not paid for it, and, for the later period, he alleges that he did not work, but was entitled to be paid for the absence.[81]The Claimant completed early conciliation for each of R1, R2, R3. The early conciliation period was the same in each case: 19 September to 31 October 2023.[82]The claim form was presented on 23 November 2023.[83]The Claimant did not have significant or lengthy periods of illness between August 2022 and November 2023. That is, he did not suffer any health problems which would have prevented him carrying out research into his rights, and/or contacting ACAS to commence early conciliation, and/or filling out and submitting Form ET1 to the Tribunal.[84]The claimant was aware of the existence of courts and employment tribunals. The claimant had previously received damages for personal injury. Within his schedule of loss, he states that he has previously (in 2001) brought claims against Royal Mail for unpaid wages. Analysis and conclusions R4[85]All claims against R4 are dismissed on withdrawal and it is therefore not necessary for me to decide paragraphs 1.1.2 and 1.2.2 of the list of preliminary issues. R1[86]The preliminary issue in relation to R1, as set out in the previous orders, was: 1.4 Was the claimant a worker of the 1.4.1 First respondent within the meaning of section 230 of the Employment Rights Act 1996?[87]The preliminary issue did not require me to make any determination in relation to section 43K. I addressed that in the case management orders by adding those determinations to the list of issues for final hearing.[88]As I have said in the findings of fact, there was no written contract (for the relevant period) between the Claimant and R1.[89]So, for paragraph 1.4.1 of the list of issues, I had to decide whether, taking account of the principles in Uber, Autoclenz, and Szilagyi, the written contracts with R2 and R3 did actually reflect the real agreement between the Claimant and R2 and the real agreement between the Claimant and R3: Case Number: 3313401/2023 Page 19 of 2489.1 And, if not, decide whether the real agreement(s) between the parties were such that there was a contract with R1.89.2 And, if so, decide whether, applying James and The Aramis, there was also an implied contract between the Claimant and R1.[90]I am satisfied that the respective written contracts issued by R2 and R3 did, in each case, reflect the actual agreement that R2 and R3 intended to enter into with the Claimant. It was their intention that they would have an agreement with the Claimant such that they would pay him and, in return, he would carry out work for R1.[91]The Claimant confirmed in evidence that he was not alleging that the respective written agreements differed from how the arrangement worked in practice.[92]The documents are not a deliberate sham.[93]For the period in which the Claimant was employed by R3, and was supplied by R3 to R1, and in which he did work for R1, the respective agreements between(i) the Claimant and R3 and(ii) R1 and R3 explain the entirety of the respective relationships. There is no need to imply any contract between the Claimant and R1 to reflect the business reality.[94]Likewise, for the period in which the Claimant was employed by R2, and was supplied by R2 to R1, and in which he did work for R1, the respective agreements between(i) the Claimant and R2 and(ii) R1 and R2 explain the entirety of the respective relationships. There is no need to imply any contract between the Claimant and R1 to reflect the business reality[95]Amongst other things, it was not R1 who decided that they would like the Claimant to work for them, and who, having selected the Claimant, required him to sign up with (as the case may be) R2 or R3.[96]Furthermore, on the Claimant’s own account, it was not R1 who decided when he would be offered assignments by the agency. On the contrary, he became dissatisfied with the number of assignments (doing work for R1) which R3 was offering him. That is why he decided to move to R2.96.1 He believed that he would get more assignments (doing work for R1) offered to him by R2 than R3 was providing. That is inconsistent with a belief by him that R1 was actually deciding when he would work, and when he would not work.96.2 Further, his expectation turned out to be correct. That may or may not demonstrate that R1 preferred one supplier over another, but is inconsistent with an argument that R1 was actually deciding considering factors personal to Case Number: 3313401/2023 Page 20 of 24 the Claimant, and, based on those factors, deciding when the Claimant would work, and when he would not work.96.3 The reasons why R2 offered him more work than R3 do not matter to the point at hand. The Claimant has his own theories and beliefs. In particular, he suggests that one or more persons employed by R1 were responsible for his not being able to get as many shifts as he would have liked. However, if the true agreement between parties was such that R1 had complete control of when to offer the Claimant work, and when not to offer the Claimant work, then a change of agency would not have made any difference to how often the Claimant would be supplied to do work for R1.[97]There is, therefore, no contract at all between the Claimant and R1. It follows that the Claimant was not a “worker” such that R1 was the “employer”. R3[98]As required by paragraphs 1.1.1 and 1.2.1 and 1.3 of the list of issues, I have to consider the Claimant’s employment status in relation to R3.[99]I set out my decisions in paragraphs 2 and 3 of the judgment, and my reasons were as follows.[100]There was no dispute between the parties that the written contract between the Claimant and R3 was such that the Claimant was an employee of R3.[101]Even if – hypothetically – a decision that the Claimant was actually an employee of R1’s, or a Limb B worker such that R1 was the “employer” might have cast doubt on whether the Claimant was also an employee of R3, that is academic. My decision was that R1 was not the Claimant’s “employer”.[102]Thus, for at least part of the period which is potentially relevant to the claim, the Claimant had a contract of employment with R3. As such, he was a “worker”, but not a Limb B worker. (He was a “worker” because of section 230(3)(a)).[103]Since the Claimant had a contract of employment with R3, he was also an employee of R3’s within the meaning of section 83 EQA.[104]Although section 1 of the list of issues does not require me to decide the start and end date of the contract of employment, section 2 does require me to decide time limits.[105]The start date of the contract of employment was around April 2019.[106]Arguably, the contract was a fixed term contract, and it came to an end automatically once there had been a continuous 28 day period without the Case Number: 3313401/2023 Page 21 of 24 Claimant working on any Engagement. On that basis, the end date was in or around April 2020.[107]However, even apart from that contract term, the contract came to an end by no later than 24 June 2020 when, on the Joined Up software, the Claimant de-registered himself as someone who might be supplied (to R1) by R3, and registered himself as someone who would only be supplied (to R1) by R2. This was an unambiguous action which showed that he was no longer available to be offered assignments by R3, and I am satisfied that R3 was aware of his decision.[108]Once the contract had come to an end, there were no wages properly payable on any dates thereafter, and there were, therefore, no deductions from wages. Even if there was ever any deduction from the Claimant’s wages by R1, and even if there was a series of deductions, the last in the series must have been earlier than June 2020 (at the latest) and was probably earlier than April 2020. R2 1.4 Was the claimant a worker of the: 1.4.2 Second respondent within the meaning of section 230 of the Employment Rights Act 1996?[109]There was a direct contract between the Claimant and R2. The written contract did reflect the reality of the actual agreement which they reached.[110]The contract was such that the Claimant was required to do the work personally. Because of the Claimant’s agreement with R2, he personally had to turn up and do the shifts at the direction of R1.[111]He was not obliged to accept the shifts. I do take account of the fact that, once he had accepted an assignment, he was obliged to perform it, and he was obliged to provide an explanation to R2 if he would not be able to do the shift, and to provide that explanation in advance of when the shift (for R1) was due to start. However, as I say, before he accepted the assignment, he had the choice of declining it.[112]The Claimant was not in business on his own account. Therefore, R2 was not a customer or client of a business operated by the Claimant.[113]The preliminary issues do not require me to decide whether the Claimant is within Limb A of section 230(3) or within Limb B of section 230(3). They simply require me to decide between: he does fall within section 230(3) (regardless of which sub-paragraph), or else he falls outside section 230(3).[114]The Claimant does fall within section 230(3). He was a worker such that R2 was his “employer” (as defined by section 230(4) ERA). Case Number: 3313401/2023 Page 22 of 24 Paragraph 1.5 of the list of issues: Do the decisions about employment status mean that any of the claims against the respondents do not proceed to a final hearing[115]Any claim against R1 for unauthorised deduction from wages, or holiday pay, or unfair dismissal is dismissed because of employment status. Those are claims which require the Claimant to have either been a worker or an employee of R1’s, and he was not. Time Limits[116]If the Claimant wished to bring a claim against R3 alleging any unauthorised deductions, he would have had to do so by, at the latest, 3 months from the last salary payment that he received from them. The time limit would have expired earlier than that if there was no deduction in that last salary payment, but the point is that it could not have expired later.[117]To obtain the benefit of any extension of time because of ACAS early conciliation, the Claimant would have had to have commenced early conciliation within that 3 month period. He did not do so.[118]The Claimant has not shown that he was ill during the relevant three month period. He was, in fact, doing work (for R1 as provided to him by his contract with R2). He has not shown any other factor that would have prevented a claim.[119]Any claim by the Claimant alleging unauthorised deduction from wages by R3 is out of time. He ceased working for R3 in 2020.[120]For R2, as mentioned in the findings of fact, the Claimant does not allege that there were any deductions after August 2022 and before April 2023.[121]The Claimant was paid weekly by R2, each Wednesday.[122]The Claimant alleges entitlement to wages up to 5 July. His P45 gives a leaving date of 9 July 2023, which was a Sunday. The latest pay date for that period of employment would have been Wednesday 12 July 2023 (if anything was due to him, which is a disputed point).[123]So, ignoring ACAS early conciliation, the time limit would have been 11 October 2023. He did commence early conciliation within that period, on 19 September. (Even if time started to run from 5 July or 9 July, he still started early conciliation within 3 months of time starting to run.)[124]He then did present the claim form within a month of the end of early conciliation.[125]For the period April to July 2023, all the alleged deductions are effectively based on the same issue. On R2’s case, there was nothing properly payable because Case Number: 3313401/2023 Page 23 of 24 he was not working. On the Claimant’s case, he was entitled to be paid because he was willing to work. In all the circumstances, the (alleged) deductions in April, May and June formed part of the same series with the (alleged) deductions in July.[126]Thus the claim for the entire period April to July 2023 is in time (subject to the Claimant being able to prove that there actually were deductions on or after 20 June 2023).[127]As mentioned in the findings of fact, the alleged deductions which finished in August 2022 (and went back a long time prior to that, on the Claimant’s case) were not based on a similar theory. The Claimant was working, and was being paid. However, the Claimant’s case is that there were underpayments due to a combination of incorrect pay rates, failure to pay correctly for paid meal breaks, failing to pay properly for overtime, and also because of errors by R1 and/or R2 in accurately recording his hours.[128]In all the circumstances, the alleged deductions up to 31 August 2022 are not sufficiently similar to be deemed to be part of a “series” with those between April and July 2023. The issues in dispute are entirely different. For the period up to Wednesday 31 August 2022, R2 accepts that the Claimant was entitled to be paid in accordance with his contractual entitlement (and, on their case, he was paid correctly, but that is a separate point). The Claimant’s argument that there were deductions up to 31 August 2022 would depend on a variety of different points, but none of those points are that he was entitled to be paid when not working, provided he was willing to work and/or provided that the reason that he was not working was that he was deemed to be “suspended” (or otherwise prevented from working) by R1 or R2.[129]Thus, for the series of deductions that came to an end on Wednesday 31 August 2022, the last date to start early conciliation would have been 30 November 2022. Since the Claimant did not do that, he gains no extension of time because of early conciliation.[130]When he presented his claim form on 23 November 2023, he was almost a year out of time. (The fact that the Claimant commenced early conciliation after the time limit expired, and presented the claim almost a year out of time would be equally true even if the clock only started to run from the Wednesday after 31 August 2022, which was 7 September 2022).[131]The Claimant had not been ill for the (whole) period 1 September 2022 to 30 November 2022. On the contrary, he was working. He has not shown any other factor that meant it was not reasonably practicable to bring a claim in time.[132]The Claimant was aware of his rights and of the existence of employment tribunals. He alleges that he was busy at work, but that is true of all full-time employees. He has not shown that it would not have been practicable to present the claim in his Case Number: 3313401/2023 Page 24 of 24 ordinary rest periods away from work, and, furthermore, he has not shown that it would not have been reasonably practicable to (if necessary) take one or more days off work in order to prepare the claim form. All the facts which the Claimant relies on, in the schedule of loss, as supporting the argument that there were unauthorised deductions were facts that were known to him, or easily ascertainable by him, long before the expiry of the time limit.[133]The Claimant also points out that he did not have internet access at home. However, he did have the means to send emails, as the documents in the bundle show, and he also would have been able to contact ACAS by phone to commence early conciliation. Employment Tribunal claims can be submitted on-line, but they do not have to be. For the first few decades of the existence of (what are now) Employment Tribunals, applicants/claimants had to use other methods, including post.[134]My finding is that there was nothing which meant that it was not reasonably practicable to present a claim by 30 November 2022 (or by the extended deadline that would have applied provided he commenced early conciliation by then).[135]Thus, the answer to the questions posed by section 2 of the list of issues for the public preliminary hearing are as set out in paragraph 12 of the judgment. Approved by: