Ms C Musa v R Fantoni (as personal representative of the estate of the late R Fantoni) and others: 3314719/2021
EMPLOYMENT TRIBUNALS
Case No 3314719/2021
Between
Ms C MusaClaimantRenato Fantoni (as personal representative of the estate ofRespondentDate 2 August 2024
JUDGMENT
Having considered the Respondents’ application dated 21 November 2023, and the Claimant’s responses, and neither party having sought a hearing, the following judgment is made.(1) The Claimant is ordered to pay the Respondent the sum of £6,806.79 for costs.(2) The payment mentioned in the previous paragraph must be made no later than in accordance with the following schedule: (i) The Claimant is ordered make a payment of £2,810.79 on or before 31 May 2024. (ii) The Claimant is ordered make 12 further payments of £333 each. (iii) She must make one such payment per calendar month, before the last day of that month. (iv) The first such payment must be made on or before 30 June 2024.(3) The Claimant is free to pay the whole amount immediately, or pay faster than the schedule mentioned in the previous paragraph, should she wish to do so.
REASONS
[1]I conducted a public preliminary hearing on 4 September 2023. Details of what happened on that occasion are known to the parties and are described in the case 1 of 14 management summary / orders document produced after that hearing, and also in the “written reasons for case management order” document.[2]In short, the hearing which had been due to last three days (4 to 6 September 2023) was postponed to another date, following my decision to allow the Claimant’s amendment to the claim, which (in my judgment) significantly altered the preliminary issue that had been due to be dealt with in that hearing.[3]The Respondents’ intention to make an application for costs was made clear during the hearing. By letter dated 21 November 2023, they made the application formally in writing. The application seeks an order against the Claimant (only) and there is no wasted costs application made against the Claimant’s legal representatives.[4]By letter dated 20 December 2023, sent on my instructions, the Tribunal ordered the Claimant to comment on the application by 27 December 2023, and to say whether she requested a hearing. The Claimant responded the same day (at 22:30) to forward some correspondence which she had sent previously, but which I had not seen by the time (on 4 December 2023) I made the orders that were sent to the parties on 20 December. There were some items, relevant to other aspects of the litigation, which have been addressed separately. As relevant to the costs application, the Claimant re-sent her email of 5 December 2023 (10.29pm) which had attached her letter of 4 December 2023. None of the Claimant’s emails of 20 December or 5 December, or the attachment dated 4 December 2023, requested a hearing.[5]The Respondent’s application had made clear that it preferred the matter to be dealt with on the papers.[6]Since I had dealt with the hearing on 4 September 2023, I am well-placed to evaluate the respective arguments (including factual assertions about that hearing) and make the decision.[7]On my instructions, a letter dated 6 March 2024 asked the Claimant to answer some questions and to comment on her ability to pay. The Answers to my 6 March questions[8]The Claimant’s income for 2023 was £50,371.73.[9]She identified significant outgoings of £35,300.86 for that year, and gave a breakdown. Included in that was £18,745 for legal fees, which are for this dispute. So, the figure was £16,555.86 without those.[10]She identified other outgoings of £11,916.31 without a breakdown. “Professional fees” was included in that, and I will assume that those are for the Claimant’s own 2 of 14 profession and are not legal fees spent on this dispute. She also includes “donations and contributions” without stating an amount or an explanation.[11]I note the entirety of the Claimant’s 21 March 2024, including what she says about a snapshot of her savings and debts and why she says that she believes that she effectively has no savings whatsoever taking account of upcoming legal fees.
The Law
[12]In the Employment Tribunals Rules of Procedure, the section “Costs Orders, Preparation Time Orders And Wasted Costs Orders” is Rules 74 to 84.[13]When an application for costs is made, or when the Tribunal is considering the matter of its own initiative, there are potentially the following stages to the decision.13.1 Has one (or more) of the criteria (for costs to potentially be awarded) as set out in the rules been met.13.1.1 If not, there can be no order for costs.13.1.2 If so, which rule or rules contain the criteria which have been satisfied (and why)?13.2 Is the rule one which requires the Tribunal to consider making an award, or is it one which says the Tribunal “may” consider making an award.13.3 Either way, if the criteria for a costs order are met, that means that the Tribunal has discretion to make an award, not that it is obliged to. So what are the relevant factors in this case, and, taking into account all of the relevant factors (and ignoring anything which is irrelevant), should an award be made.13.4 If an award is to be made, what is the amount of the award? (And what is the time for payment, etc).[14]Rule 84 states: 84. Ability to pay In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.[15]As per the rule, “ability to pay” is something that “may” be taken into account at each of the last two stages of the decision-making. That is: should an award be made at all; if so, what is the size of the award (and the timetable for payment). A tribunal is not obliged to take “ability to pay” into account, but should specify whether it has done so or not (and, if not, why not). Generally speaking, where a party wants the Tribunal to decide that they do not have the ability to pay, then the 3 of 14 onus is on them to(i) raise the point and(ii) provide evidence to back up the argument. That being said, in accordance with the Tribunal’s duty of fairness, and in accordance with Rule 2, it may be appropriate for the Tribunal to seek to ensure that a party (especially a litigant in person) understands that the onus is on them (at least, in cases where the order might be a large one): Oni v NHS Leicester City UKEAT/0133/14.[16]Rule 76, insofar as is relevant, states: 76.— When a costs order or a preparation time order may or shall be made(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; (b) any claim or response had no reasonable prospect of success (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.[17]So one set of criteria for a costs order to be made are those set out in Rule 76(2). The tribunal is not obliged to consider making an award in such circumstances, but it may make an order. These criteria cover breaches of orders or practice direction, and they also cover postponement/adjournment where the application was made more than 7 days before the hearing was due to start.[18]If the criteria set out in Rule 76(1) are met, the Tribunal must actively consider whether or not to make an award (though it is not obliged to decide to make the award). The three subparagraphs are each independent. It is sufficient that any one of (a), or (b) or (c) is met.[19]Where the argument is that the party has acted “vexatiously, abusively, disruptively or otherwise unreasonably” then the only conduct that is taken into account is that which is (either the bringing of the proceedings or) the way that the litigation has been conducted. This ground can potentially be established even where the paying party has been successful in the litigation. The precise details of the conduct in question will be relevant both the(a) whether the criteria in Rule 76(1)(a) are met and/or(b) whether, in all the circumstances, the Tribunal should exercise its discretion to make a costs order.[20]If the criteria to potentially make a cost order are met, then the factors which are potentially relevant to the decision about whether to make such an order (and, if 4 of 14 so, how much the award should be) include, but are not limited to, the following. However, the Tribunal’s primary duty is to follow the wording of the rules, and to make specific decisions on the merits of the case in front of it.20.1 Costs are the exception rather than the rule. A party seeking costs will fail if they do not demonstrate that the criteria for potentially making such an order (in the Tribunal rules) have been met. However, the mere fact alone that the criteria have been met does not establish that the general rule is to make a costs order in such circumstances.20.2 Costs, if awarded, must be compensatory, not punitive. If the argument that there has been unreasonable conduct is made then the whole picture of what happened in the case is potentially relevant. However, it is necessary to identify the specific conduct, and decide what, specifically, was unreasonable about it and analyse what effects it had. Some causal link between the conduct and the costs sought by the other party is required. Yerrakalva v Barnsley [2011] EWCA Civ 1255.20.3 Was the party warned that an application for costs might be made, and, if so, when, and in what terms.20.3.1 The lack of such advance warning does not prevent an application being made (or the Tribunal granting it). Rule 77 gives a party up to 28 days after the date on which the judgment finally determining the proceedings was sent to the parties. Furthermore, while the rule give the other party the right to a reasonable opportunity to make representations in response to the application, it does not impose a requirement that they were warned before the application was made.20.3.2 However, the issue of whether a party (especially a litigant in person) was aware of the possibility of having to pay costs is likely to be relevant. This can be demonstrated by something other than a costs warning from the opposing party: for example, comments made at a preliminary hearing; the fact that they had been involved an earlier case in which there was a costs application; the fact that they themselves had expressed an intention to seek costs from the other side.20.3.3 If a warning has been made, its precise terms will be relevant. A simple boiler plate threat to apply for costs, which appears to a knee jerk response that the party (or its representative) always sends out is likely to be far less persuasive than a considered attempt to address the arguments raised by the other party, and explain why they have no prospect of success, or to explain why the particular conduct has been unreasonable, and what the rules or case management orders (specifically) require instead. 5 of 1420.3.4 The timing of the warning will be relevant, as will the issue of whether the warning was updated and repeated at relevant stages.20.3.5 The fact that a costs warning was made, even one which is clear and detailed and well-timed, and which identifies the precise basis on which the application was later made, does not guarantee that an order will be made.20.4 What advice did the party have? Who from? When? It can be a double-edged sword that a party has taken legal advice. On the one hand, they might seek to argue that since a lawyer advised them that the claim had merit, it was not unreasonable to pursue it. On the other hand, the opposing party might seek to argue that (even if the paying party was a litigant in person at the Final Hearing) the fact that they had legal advice available shows that they ought to understood the claim was hopeless, and/or that their conduct was inappropriate, and/or that a settlement offer that had been made was a good one. To rely on the former argument, the paying party might have to waive privilege over the advice in question. However, there is no obligation to do so to defend itself against the latter inference; where privilege is not waived, the Tribunal will not make assumptions that the party specifically received advice that they were acting unreasonably, but the fact that advice was available to them is likely to undermine an argument that, as a litigant in person, they could not reasonably have been expected to anticipate the arguments being raised by the costs application. Analysis and Conclusions[21]It is a fact that the intended 3 day preliminary hearing was postponed.[22]It was not postponed on the application of the Claimant. The Claimant’s preference was to continue with the hearing. However, the Claimant made clear – through counsel - that if the choice was between withdrawing the amendment application (and proceeding with the hearing) or else potentially having the amendment application granted, but with postponement, she preferred the latter.[23]The hearing was postponed on the application of the Respondents. However, the Respondents made clear that their preference was to continue with the hearing. What they asked me to do was to refuse the amendment application on the basis that, if I granted it, a postponement would be necessary. So their first preference was no amendment and no postponement; however, if I decided against them on the amendment application, they argued postponement was needed.[24]In my written reasons for granting the amendment, I commented on Ladbrokes and Traynor at paragraph 17 in the legal section. I addressed it in paragraphs 60 to 62 (in particular) of the analysis. 6 of 14[25]At paragraph 65 and 66, I commented on the potential costs implications.[26]The Claimant was represented by counsel at the hearing. The possibility that there would be a postponement if I granted the amendment application was front and centre of the discussions. I specifically asked for confirmation from the Claimant, through counsel, that she understood the risk of a costs award being made if I granted the amendment application (and postponed the hearing). The answer given is alluded to at paragraph 66 of the reasons.[27]As stated more fully in the case management summary and orders document, and the written reasons for case management decision document, both sent to parties on 25 October 2023:27.1 The application for amendment was made at the hearing, and not flagged up in advance. (See paragraphs 45, 48 and 49 of written reasons regarding amendment).27.2 The application was on the basis that her solicitors chose the date of 5 September 2018 as alleged start date of employment in ET1.27.3 A previous preliminary hearing had taken place, and not only did the Claimant not make an application to amend then, the list of issues was drawn up on the basis of the 5 September start date. (See paragraphs 31 to 38 in particular, and the comments made throughout the written reasons regarding amendment),[28]At the time of the September hearing, it was clear that the Respondents’ would make a costs application. It was not yet clear whether that would be for an award of costs payable by the Claimant, or for a wasted costs order, or both. The Respondents have applied only for costs against the Claimant.[29]As is clear from the correspondence from both sides, the Claimant is no longer represented by Lester Dominic Solicitors, and the Respondents have been notified of that, as has the Tribunal. The Claimant states that she dis-instructed them on 6 October. The specific date and reasons do not matter, save that it was after the September hearing, and that I note that Lester Dominic Solicitors have seen the documents sent on 25 October 2023, because they received them from the Tribunal and forwarded them to the Claimant.[30]The Claimant’s objections to the costs order includes that “there is no material change to my claim other than the period of employment” and quotes from my reasons in support of that position. However, that is not the issue. As stated in those reasons, while it was my decision that the amendment application should be granted, the parties had prepared for the September 2023 hearing on the basis of the Claimant’s existing claim form and the list of issues created at a previous hearing. Parties had not carried out disclosure, bundle preparation or witness 7 of 14 statements on the basis of:(i) a start date of continuous employment much earlier than September 2018;(ii) employment status as “employee” earlier than September 2018;(iii) no breaks in employment between the alleged earlier start date, and the effective date of termination alleged in the claim form.[31]The same applies to the argument that there had been some earlier documents/correspondence which alleged a July 2001 start date. I addressed that in my written reasons. There had indeed been such correspondence, but the Respondents’ had prepared for the September 2023 hearing on the basis that that was NOT an argument that was being pursued, and the Claimant did not notify the Respondents of the proposed change of position (and the attempt to formally allege a 2001 start date) until the September 2023 hearing was underway.[32]Likewise, the Claimant makes comments about the strength of her case in relation to a 2001 start date. For the reasons mentioned in the previous two paragraphs, the likelihood of her being able to persuade the Tribunal to decide that she was an employee (with no breaks in continuity) from 2001 is a separate issue to whether I should award costs on the basis of the timing of the application to amend the claim. The Respondent’s submission is that the lateness meant that the Respondents had incurred legal costs preparing for a hearing on the basis of the issue previously identified, and on preparing for a hearing which had to be postponed.[33]At paragraph 4 of her 14 March letter, the Claimant alleges late disclosure of a particular item by the Respondent. I will treat that as a potential suggestion that the late disclosure of this item is relevant because it potentially caused a change in her stance about start date of employment, and thus led to the amendment application. [Although, in fairness to both sides, in context it seems to be part of an argument that both sides had prepared for the September hearing on the basis that they expected the hearing to address employment status from 2001 onwards; that is an argument that was made in September 2023, and which I rejected then.][34]In paragraphs 6 and 7 of that 14 March 2024 letter, she argues that she was misled by her solicitors and/or by the barrister for the first August 2022 preliminary hearing. She argues that, as far as she is concerned, her claim was always on the basis of employment from 2001 onwards. However, she has not supplied any evidence of any legal representative stating to her that the claim had been presented on the basis of (or amended to) a start date in 2001.34.1 By the time of the August 2022 preliminary hearing, if the Claimant had wanted there to be an argument that employment was continuous from 2001 onwards, an amendment application would have had to be made. In other words, the application that was eventually made to me on 4 September 2023 would have had to be made in August 2022, and either dealt with on the day, or dealt with in accordance with whatever orders EJ Hanning made for the application’s future progression. 8 of 1434.2 I am confident that, if Ms Ibrahim had received instructions (either at a conference with the Claimant, or via the Claimant’s solicitors, or at all) that the Claimant wished to allege employment from 2001 onwards, she would have raised that at the hearing in August. She might, of course, have sought to argue that it was a clarification of the claim, rather than an amendment request. However, either way, she would not have agreed to the preliminary issue being drafted the way it was without asking for 2001 to be mentioned instead of 2018.34.3 Those orders were sent to the Claimant’s then solicitors on 21 August 2022. The solicitors did not contact the Tribunal to say the orders were incorrect. I have no evidence that they contacted Ms Ibrahim to say that the Claimant was arguing for a 2001 start date, either before the hearing or after they received these orders.34.4 The argument made to me in September 2023 was that the Claimant’s then solicitors had apparently decided to argue for a September 2018 start date based on their opinion about whether the Claimant had the right to work in the UK prior to that date. I have not been shown copies of any written advice to the Claimant on the start date point, or any correspondence from her to her solicitors querying it.[35]In paragraph 9 of the 14 March letter, the Claimant refers to a conference with Mr Godfrey, the (different) barrister who was to represent her at the September hearing. She says this was late August, but without giving a date. She says that the start date issue was discussed, and professes not to understand the discussions between her solicitors and Mr Godfrey about it.[36]She refers to agreeing with Mr Godfrey on 4 September that the amendment application would be made (her position being that she had always wanted the claim to argue for employment from 2001 onwards).[37]In paragraph 10, she alleges that the Respondents or their solicitors are somehow responsible for (what she claims was) her own solicitors’ stance.37.1 She says that her own solicitors were angry with Mr Godfrey and complained about him. In terms of the latter point, I will take the Claimant at her word that they complained about Mr Godfrey.37.2 However, that fact provides no evidence that the solicitors had previously failed to follow the Claimant’s express instructions (about alleged start date).37.3 Even more so, that fact provides no evidence that the Respondent was somehow responsible for her own solicitors alleged failure to follow her instructions. 9 of 14[38]I am satisfied that neither the Respondents nor their representatives are in any way responsible for the facts (recited in the written reasons for the amendment) about the timing of the application to amend (or the fact that the original claim form alleged a 2018 start date).38.1 The allegation of undue influence being brought to bear on the Claimant’s solicitors is inherently implausible and made without any supporting evidence.38.2 The problem with any argument about “late” disclosure of documents related to periods of time prior to 2018 is that had the original claim (and as clarified at the August 2022 hearing) specifically alleged employment from 2001 to 2018 then all documents relevant to (alleged) employment status in that period would have been relevant. While I assume (for present purposes) that the Claimant is correct that a particular document was disclosed late, on her case, it was only a document which confirmed (alleged) facts that the Claimant was already fully aware of. I have never been presented with an argument that the Claimant or her solicitors did not think they could prove employment from 2001 onwards, and so chose, for tactical reasons, to stick to a period which they thought they had proof for.38.3 The Claimant’s current argument is that she always wanted to claim for 2001 onwards, and her solicitors failed to carry out her instructions (and, by implication, failed to inform her properly of the date that had been pleaded).38.4 The argument at the September hearing was that nothing of significance happened on 5 September 2018 (no new contract or evidence) other than that being the date that the Claimant became (in her solicitors’ opinion) lawfully entitled to work in UK. [I am not saying that her solicitors’ opinion that she could not lawfully work prior to then is correct; simply stating that that was the reason given in September 2023 for why September 2018 had been chosen as the alleged start date].[39]I do take account of the sums which the Claimant states that she has paid to her own lawyers to reach the stage that we are at now.[40]However, I am not proposing, of my own initiative, to consider a wasted costs order against Lester Dominic Solicitors, either in favour of the Respondents or in favour of the Claimant, or both.[41]My decision is that the conditions in Rule 76(1)(a) are met. I do not consider that the Claimant’s actions or her representatives’ actions have been vexatious or abusive. However, they have been “disruptive” and/or “otherwise unreasonable”.[42]The application to amend the claim (and therefore the preliminary issue) was made: firstly, more than a year after the August 2022 hearing listed the September 10 of 14 2023 hearing and defined the preliminary issue; secondly, actually on the intended Day 1 of 3, and after all the preparation had been done.[43]I do not ignore that the Claimant says it was her solicitors’ fault, and not hers. However, the criteria in the Rule can be satisfied by EITHER the party’s conduct of the litigation OR the representative’s. It does not have to be both (and does not have to be the party, specifically). Certainly the issue of whose fault it was can be relevant to the exercise of discretion, but my finding is that the conduct was unreasonable.[44]As mentioned in the reasons for granting the amendment, the Claimant and her solicitors did know that the Respondent would be incurring significant expenditure in preparing for the September hearing, including travel from Italy in one case.[45]I am also satisfied that the Claimant and her solicitors either did know, or ought to have known, that witness statements and bundle preparation would have to be redone if the preliminary issue was changed from being employed from 2018 to June 2021 rather than employment status from 2001 to June 2021. At the September 2023 hearing, I considered, and rejected, the submission that employment status could be decided in the abstract, without dates of employment being dealt with at the same time.45.1 On the facts of this case – following the amendment application being granted - nothing was alleged to have changed (in terms of contractual status) on 5 September 2018. The argument being presented was that the Claimant had become an employee in 2001, and had remained one ever since; the issues of employment status and dates of employment could not be separated out on these particular facts (and arguments from the Claimant).45.2 Put another way, it would be wholly irrelevant if the Claimant had become an employee in 2001 if that contract had ended in 2002 (or even a few years later than that), if the Claimant had been arguing that an employment contract commenced from September 2018. However, she wanted to rely on what had happened in 2001 (and ever since) in support of an argument that she continued to be an employee, both immediately before and immediately after 5 September 2018, and continued to be an employee until June 2021.45.3 The Respondents were facing an entirely different argument to having to defend an allegation that, on or around 5 September 2018, an agreement had been reached.[46]The Claimant and her solicitors knew, or should have known, that preparations seeking to refute an argument that employment that employment started in September 2018 would be wasted if the new argument was that it started in 2001, and continued ever since, was the one that they had to prepare for. Thus the later they left it (certainly after August 2022) to make the amendment application, the 11 of 14 more chance there would be that significant preparation time would have been wasted, and have to be re-done.[47]Similarly, it ought to have been obvious that making the amendment application on Day 1 of the hearing would mean a postponement if the application was granted. It should have been obvious to the Claimant and her representatives well in advance of the September hearing. In addition, they knew on the day that that was the Respondents’ stance, and they knew, before my decision was final, that I was likely to postpone if I granted the application. The Claimant’s decision was to press on with the application.[48]An award of costs in employment tribunal is the exception rather than the rule.[49]In this case, the Claimant’s (and/or her solicitors’) unreasonable conduct had put the Respondents to significant expense.49.1 I have seen no evidence that Mr Godfrey acted unreasonably. If his instructions on Day 1, from the Claimant, were that she wished to argue for employment from 2001 onwards, he effectively had no choice but to make the application which he did make (including the argument that no postponement was required).49.2 On 4 September 2023, all the decisions made on that day were made by the Claimant personally, and Mr Godfrey carried out those instructions in accordance with his professional obligations. I have discussed in more detail above that it is the Claimant’s position that Mr Godfrey was simply putting things right, and Lester Dominic Solicitors should have argued for July 2001 from the outset and/or instructed Ms Ibrahim to make that argument in August 2022. Based on the existing documents that have been disclosed, the Claimant has not convinced me that she did make clear to Lester Dominic Solicitors that those were her instructions (and I would obviously wish to give Lester Dominic Solicitors the chance to comment before any wasted costs application was considered). However, the unreasonable conduct occurred either way, and the costs to the Respondents were caused either way.[50]I am satisfied that the Claimant does have the means to pay some award. If it is true that her solicitors failed to follow her express instructions, then she can follow it up with them as a separate matter. However, my decision is made on the assumption that the Claimant, not Lester Dominic Solicitors, will be making the payment. I am not making any assumption that she will recover it elsewhere.[51]In 2023, the Claimant’s income exceeded her outgoings. Part of her outgoings were the £18,000 plus that she spent on legal fees for her own representatives. I am satisfied that she can meet an award of costs against her.[52]I take account of the fact that she does not have much cash in the bank. 12 of 14[53]In all the circumstances, I am satisfied that there should be an order that the Claimant pay some costs. Amount[54]The Respondents’ counsel’s fees were £8,625 plus VAT, so £10,350. I have not been supplied with a detailed breakdown of how much was for the September hearing specifically. Using my discretion, and taking account of the fact that it was intended to be a 3 days hearing (albeit reduced to 1), I will order that the Claimant pay £3500 based on the counsel’s costs thrown away because the September 2023 hearing could not proceed. The £3500 is inclusive of VAT.[55]Some of the work done by solicitors would have had to be done anyway, even if the Claimant] had argued from the outset (in the ET1) that employment commenced from 2001 (and was continuous). I do not consider that the charges up to the August 2022 hearing would be any different.[56]I note that the invoices supplied give aggregate sums for particular periods of time, without breaking down what work was done.56.1 In terms of general advice, the costs of that are costs incurred by the fact that the claim was brought, not the unreasonable conduct of making the amendment application so late.56.2 In terms of disclosure, some of the searches will have to be re-done. This has been made more difficult by the fact that R1 would have been alive to help had the amendment application been made earlier (at the August 2022 hearing, for example). I also think it likely, however, that the respondents – even though not under an obligation to disclose documents other than those relevant to the claim as pleaded, are likely to have searched for documents helpful to their own position from all dates.56.3 The bundle will have to be re-done. Some of that work can still be the basis for the new bundle.56.4 The witness statements will have to be re-done. Some of that work can still be the basis for the new statements.[57]The Respondents’ solicitors costs as per the invoices are extremely high (around £40,000 plus interest). That is far in excess of what I consider reasonable for the costs of the work that was wasted for the September 2023 hearing, and having to re-do some work because of the late amendment of the claim (and preliminary issue).[58]Exercising my discretion, I will order the Claimant to pay £3000 for solicitors’ costs. That figure includes VAT. 13 of 14[59]In accordance with Rule 75(1)(c), an award of costs can include the party’s attendance at the hearing. R4 incurred costs of £306.79 and I award those.[60]Thus the aggregate is £6,806.79.[61]I am satisfied that the Claimant will be able to get together, or borrow, a sum of £2,810.79 fairly promptly, and I order that she make an initial payment of that by 31 May.[62]I do not think it would be just and equitable for her to have to pay the balance immediately. She should be allowed some time to earn the sums she will have to pay to the Respondent.[63]In the event that the Claimant is eventually successful in her claims, then the payment schedule might be revisited after any remedy decision. In any event, if there are changes in circumstances, the parties can, in the normal way, make an application for reconsideration of the judgment, and for a faster/slower payment schedule.[64]However, on the basis of current documents and information, my decision is that it is fair to both sides if I order the Claimant to pay £333 per month rather than a higher or lower amount. A lower sum would not be fair to the Respondents’ who are already out of pocket for these sums. The amount which I have set takes account of the Claimant’s limited savings (which will potentially be diminished further by the initial lump sum). I have not intended to set an amount which will be “easy” to find, but I have intended to set one she will be able to find, based on the information supplied, even if it requires some reorganisation of her finances, or reduction in expenditure on other items.
Relevant Law
[65]When all the abovementioned factors are accounted for Ready-Mixed Concrete, provides that there may be other relevant matters that may or may not point to there being a contract of employment, notwithstanding there is no definitive list. In Hall (Inspector of Taxes) v Lorimer [1994] ICR 218, the Court of Appeal upheld Mummery J, who in the High Court ([1992] ICR 739) held that it was necessary to consider many different aspects of the person's work activity, and that this was not to be done by way of a robotic exercise of ticking off items on a check list. Not all facts are of equal heft nor importance in any given situation.[66]In Cotswold Developments Construction Ltd v Williams [2006] IRLR 181, paragraph 53 Langstaff J remarks “a focus on 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.”[67]Elias J at paragraph 50 of James v Redcats (Brands) Ltd [2007] ICR 1006, explains that the extent of integration “often assist in providing the answer” but not always. At paragraph 48, Elias J puts it this way: “in a general sense the degree of dependence is in large part what one is seeking to identify— if employees are integrated into the business, workers may be described as semi-detached and those conducting a business undertaking as detached—but that must be assessed by a careful analysis of the contract itself. The fact that the individual may be in a subordinate position, both economically and substantively, is of itself of little assistance in defining the relevant boundary because a small business operation may be as economically dependent on the other contracting party, as is the selfemployed worker, particularly if it is a key or the only customer.”[68]The application of the test culminated recently in the Supreme Court decision of Uber and others v Aslam and others [2021] UKSC 5. The Supreme Court summarised the position as the employment status of a claimant is a question of statutory interpretation, rather than contractual interpretation. They set out factors to consider as including,a. personal service – whether the individual was required to perform the services or whether they could provide a substitute. If the claimant has an unfettered right to substitute someone else to perform the services, the necessary element of personal service will not be met and the claimant will not satisfy the definition of employee or worker; however, a limited right of substitution will not prevent someone from being a worker (see Pimlico Plumbers Ltd v Smith [2018] ICR 1511).b. control – the degree of control exercised by the potential employer over the individual; andc. and mutuality of obligation – whether there was an obligation on the potential employer to provide work to the individual and an obligation on the individual to perform that work.[69]The EAT remarked in Byrne Brothers (Formwork) Ltd v Baird and others [2002] IRLR 1996 (which was reaffirmed by Underhill LJ in Windle and anor v Secretary of State for Justice 2016 ICR 721, CA) that the effect of the definition of "worker" is to “lower the pass mark", such that claimants who fail to satisfy the test of employee status may still qualify as workers.[70]In Firthglow Ltd v Szilagyi (2009) EWCA Civ98, (2009) IRLR 365 and Autoclenz v Belcher [2011] UKSC 41 the Court emphasised the need of the tribunal to investigate the true intentions of the parties when entering into the contract, and as to whether the words of the written contract, represented those intentions. The Court further stated that what has happened through the course of the contract was very important as the parties may have varied (either expressly or impliedly) the agreement.[71]The Court of Appeal held in Nursing and Midwifery Council v Somerville [2022] IRLR 447 that irreducible minimum of mutuality is not a requirement to be considered a worker. Strike out[72]The Employment Tribunal must consider if the Claimant is a worker or an employee in any of the relevant periods and if she is not whether it is appropriate to strike out the Claimant’s claim in respect of any of the periods in question or consider whether a deposit order is appropriate.[73]All the Claimant’s claims rely on the Claimant either being a worker or an employee. Rule 37 of the Employment Tribunal Rules of Procedure (‘ETR’) states: “37.— Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success.”[74]Rule 39 ETR sets out the circumstances in which a deposit order could be made. It states: “39.— Deposit orders(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.(2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.”[75]It is well-established that the striking out a claim of discrimination is considered to be a Draconian step which is only to be taken in the clearest of cases (see Anyanwu & Another v South Bank University and South Bank Student Union [2001] ICR 391). Submissions[76]The Respondent provided written submissions. Both parties were given 20 minutes for oral submissions. The Employment Tribunal considered all the submissions both written and oral. In summary the Respondent’s submissions were : the factual evidence was crucial as Renzo Fantoni was not around. It is for the Claimant to show that she is a worker or employee, and she has failed to discharge this. Her evidence throughout and case had been marred by contradictions, falsehoods and flagrant embellishments. Her lack of credibility pervades her entire case and undermines it. The case was put so many different ways. Initially, the claim form says she is an employee from 5 September 2018 but then expanded that to 2001. The Claimant did not seek to say there was any variation of the contract throughout the period. This case should be considered in its context – the Claimant and Renzo Fantoni lived together for 20 years. It is also accepted she did housework relatively regularly in the context that she lived there for free. Just because there was uneven distribution of household cleaning does not imply she is a worker or employee.[77]It was not conceded that there was an employment relationship between July-1 December 2001. The fact that the Respondents themselves have referred to it as an employment relationship is irrelevant. The Employment Tribunal can find that there was no employment relationship. There is a marked difference in when the Claimant was engaged by Renzo Fantoni to work and when she was not. The substitution clause in the written contract suggest that the Claimant did substitute when she was unwilling to work rather than unable an paid the sub herself. This is an Express publications v Tanton case, a genuine substitution is inconsistent with a worker period. The failure by Renzo Fantoni to not refer to Adele in the job description document doesn’t make a great deal of difference. He drafted the document when he considered his bedroom his own. The Claimant gives no evidence of variation of contract, it is just that Renzo Fantoni’s personal position would have changed. There is no evidence that either Ruth or Renzo Fantoni required a live in carer. The issue of care relates to latter point in 2020, during the extraordinary time of covid when anyone elderly would be restricted to the house. There was no legal obligation on the Claimant to under take those duties. It was not a worker’s contract as only a moral obligation not to evict the Claimant. The Claimant felt an obligation to do more than her fair share of work. It wasn’t intended that licence brought into question the relationship. It was only at that point that the Claimant refused to formalise her relationship. In respect of the letter dated 08/04/21 by Renzo Fantoni to Claimant, one needs to look at it in context where there was an attempt to formalise the relationship. The Respondents have no explanation of what Renzo Fantoni meant by services in his letter. The Claimant had already alleged that she was an employee and her freedom curtailed, issue of services came from her. The letter clearly was not a dismissal. The Claimant was told in no uncertain terms in the correspondence, but she continued to live there and deliver some care. The 08/04/21 letter was a clumsy use of words.[78]In summary the Claimant’s submissions were there is no dispute on the law. It. Is agreed that this case turns on the facts and the Claimant has to prove her case. But what is more likely than not, the Respondents Directors of a limited company not producing any paperwork.[79]For any one providing services for a long period of time one would assume there would have degree of fondness for that individual. It was a very restrictive contract and so Claimant could not be a mere volunteer and doing the work out of affection. The reason why the Claimant volunteered at the end of the relationship was because the deadline was extended for her to stay in the property and the Claimant’s understanding that she was still employed and so she cared for him. There was no contradiction.[80]The Respondents are unable to explain when they say there was a termination as they admit there is no documentation. Equally in 2016, would have expected more documentation in respect of Ms Shapiro. There is no new contract of employment issued in 2016. Renato’s evidence is in the business they do everything by the book. It was more likely that the Claimant was living at the premises as part of her employment. not that there was an informal licence.[81]This was a very very long period of time. The Respondents’ case is simply not credible for someone not related to Renzo Fantoni would stay so long and the Claimant be permitted to be a lodger. The implication of the gift is that the only reason why Renzo Fantoni offered the gift is that it is compensation for work. The substitution is misunderstood. Ola provided care when there was a lot of care needed for Adele. It was not a situation where the Claimant could select someone to replace her. The original plan was Ola would cover on her day off, that was not substitution. There was a short period when she asked Beatrice to stay. It is not credible that the job description comes from 2001 when it refers to Renzo Fantoni and not Adele.[82]It is misleading for the Respondents to contend there was no variation. The contract of employment contains two separate elements care and housekeeping. The housekeeping was a central task which remained. Throughout there were variations when others were living at the propertythere was more work when Ruth there and Lucian in 2008-2010. As far as the care is concerned there was a variation in 2001 and 2016 and Renzo Fantoni’s care was a developing situation. In response to the Respondents submissions, Renzo did accept the Claimant did the housekeeping, and in his article, he wrote the Claimant “does much about the house”. Lucian said that Claimant would clean the house.[83]In the letter dated 08/04/21 Renzo refers to his needs having changed. The Respondents have made admissions directly or indirectly about the work carried out by the Claimant. Renato admitted Renzo’s health and mobility deteriorated post 2016 therefore he needed more assistance. The pharmacist does not deny signing the original letter but produced the second letter because he became concerned that the Claimant was not the registered carer for Renzo. It does not matter when the care plan was produced, the majority of the document was accepted as being accurate. The Claimant continued to do 2 hours a day of cleaning but had other jobs throughout. She was a very busy person. But that did not affect the employment relationship. At the end, the family went from praising her to throwing her out. Incidentally, that is the predominate reason why she says that they are all her employer. In the meetings Renzo did not seem to be in a position to act alone. The family tried to define the relationship as a bare licence. The 08/04/21 letter cannot mean anything other than the end of the employment relationship. The Claimant did not cease working for the Respondents until the end of June. The Claimant accepts that she did complete tasks without consent past the deadline of 24 June 2024.[84]The Respondents’ response to the Claimant’s submissions were the Claimant’s anticipation she would receive a gift in the will is contrary to a legal obligation. They had a relationship where Renzo referred to her as you are my black daughter and the Claimant referred to him as you are my white father. There was a lot of reconstructing after the fact, i.e. the Claimant now saying the extension is why she stayed. The Claimant’s evidence is that situation changed i.e. looking after the cat, cutting hair, these are things that happened when she was in the house. The Claimant doesn’t say the Respondents engaged her to do further care duties. It is not a variation unless both parties agree at the beginning for it to be a contract. The care plan substantially undermines the Claimant’s credibility for example there is no evidence that the Claimant had to assist Renzo to take Gaviscon. There is no doubt that Renzo spoke about his ailments, after all the Claimant is a registered nurse. The expressions of gratitude of Fantoni family shows there was no level of legal obligation. Analysis/ Conclusions Written documentation[85]The starting point is the written documentation. The only written documentation available in respect of the time period from July 2001- June 2021 that exists is the contract of employment [330]. I will say first off, that this document did reflect a contractual relationship. The predominate purpose of this contract was for the Claimant to look after Adele. Part of the consideration for this contract was to be paid £300 and food and lodgings. The Claimant accepted the terms of the contract and signed it at the time although she did not receive a copy of the contract. The existence of the substitution clause and the fact that the Claimant exercises it in September 2001 does suggest that personal service was not necessary and leads me to conclude that this was a Pimlico Plumbers scenario. Renzo Fantoni needed to approve Beatrice working in his home and so the substitution right was fettered and so I determine that the Claimant was a worker under this contract and not an employee.[86]The contract was an assignment to care for Adele and carry out housekeeping duties supporting that primary purpose. I found that all the housekeeping duties referred to in the contract were incidental to Renzo Fantoni because of course he lived there. When Adele died, the assignment came to an end. The Claimant had been paid to carry out the matters in the contract as well as living in the property. There was a notice period of two weeks. The notice clause was not exercised by either party when Adele died. But I find the contract ended after the death of Adele. Did the contract continue beyond December 2001?[87]The Claimant’s submissions were that the Employment Tribunal could infer strongly from the absence of documentation after the death of Mrs Fantoni that the contract of employment relationship continued. The Claimant pointed to the business background of all the Respondents as directors of the family business. However, I was not convinced of this. I accepted Renato Fantoni’s oral evidence was that his father regarding his interactions with the Claimant as personal ones not to do with business. The absence of paperwork in respect of the later assignment to look after Ms Shapiro was explained by this.[88]With the assignment gone, I needed to consider the existence another contract before deciding what kind of contract would be in existence.[89]Whilst it is the case that there was an offer by Renzo Fantoni at some point for the Claimant to stay in the house in return for cleaning duties and the Claimant undertook work in the form of cleaning the house and laundry at some later date and so there was consideration. However, I consider that objectively there was no intention by either party to enter into legal relations in respect of cleaning the house.[90]The Claimant did have a conversation with Renzo Fantoni after Adele’s death about what would happen next. The conversation was not carry on with your housekeeping duties and will adjust your pay accordingly for example, the focus moved to the Claimant remaining in the property and in return for cleaning. I draw this inference because there was no discussion of money at all. The Claimant would need to eat and etc and without any income she could not continue to do. The Claimant knew that she would need to get work or find some form of income and she did so immediately. I was not convinced that there was any conversation about a gift at that point in the relationship.[91]The Claimant primary goal it appeared to me was to remain in the property. The Claimant’s concern was about not being thrown out of the property. The Claimant had a good deal living in the property rent and bills free. The Claimant was being paid more than she was at Friary lodge which was approximately £195 and with that having to pay utilities bills and rent. The Claimant’s admission that she did not need to live in the property to carry out her housekeeping duties and the fact she worked throughout the period studying as well indicated to me that she did not and would not have time to do all the cleaning she claimed that she did the time she said she did it. Evidence of control?[92]I also looked at the extent of control of the Claimant after 2 December 2001. Whilst it was the case that the Claimant was restricted in her movements whilst she was looking after Adele, that clearly was not the case after Adele’s death. The Claimant clearly regularly went away as evidence by the bus tickets from 2012, the Claimant had a friend come to the house on a regular basis, Rufaro Chandomba [339 &340] was her visitor. There was no suggestion that Rufaro was Renzo Fantoni’s visitor, I was baffled by the Claimant’s evidence that she was not a visitor because it was not for her benefit.[93]The Claimant gave no evidence that Renzo Fantoni ever commented on her cleaning or asked that it be done in a particular way or the time of the day it needed to be done by which I would have expected to hear based upon the Claimant’s portrayal of the restrictive nature of what she described as her employment. I found there was requirement to be back by 10pm as the Claimant worked nights from the get-go. The Claimant simply was not restricted as she suggested. Evidence of personal performance?[94]The Claimant was not the only person who carried out house cleaning chores. Even on the Claimant’s own case, Beatrice also carried out the housekeeping duties at one time. That in itself suggests to me that personal performance was not required by Renzo Fantoni in respect of cleaning his home. It strikes me that theoretically had the Claimant employed someone else to clean the house on a permanent basis, the Respondent would not have had any objection to this. Renzo Fantoni also did his own chores and expected the Claimant to clean after herself.[95]I simply did not see that the Claimant provided care services to Renzo Fantoni or any of the other brothers. The pandemic was a very specific set of circumstances where someone of Renzo Fantoni’s age was required to shield and so as part of Renzo Fantoni’s bubble, the Claimant would be the only one on hand to carry out some of the personal tasks like cutting hair and trimming finger nails. The care plan as proposed was not a plan at all but a list of Renzo Fantoni’s common aliments for someone of his age. It may be a stereotype that elderly people do speak about their aliments, but I consider in this case that the facts fit this stereotype and especially where the Claimant was a registered nurse. Renzo Fantoni would tell the Claimant about his ailments over a 20 year period, it did not mean that he required, or the Claimant was obligated to provide care. Furthermore, it simply was not plausible that the Claimant could continue to work full time as she did and provide the kind of daily care referred to in the care plan. Mutuality of obligation?[96]The Claimant had two periods as a worker with Renzo Fantoni, the first from 1 July 2001- 1 December 2001 and the second from 1 April 2016- 4 July 2016. Both periods of employment related to the 24 hours care of terminally ill partners of Renzo Fantoni. There was nothing about the intervening period between January 2002- March 2016 where the Claimant was carrying out the same or similar work for Renzo Fantoni or any of the Fantoni family for that matter, which might suggest an irreducible minimum of obligation. There was no work after 4 July 2016 where the Claimant was caring for Renzo Fantoni that was of the same nature of the work that she had done to suggest any relationship to the Claimant’s employment to look after Ms Shapiro. Was there an intention to create a relationship of employment?[97]I find that the relationship was no longer a contractual relationship after 1 December 2001 but a friendship. Renzo Fantoni liked the Claimant, and the Claimant liked him. The Claimant a hard worker was not one to want to appear to be a freeloader, she felt that she had to show her appreciation for Renzo Fantoni allowing her to stay in the property rent free. The Claimant felt obligated to Renzo Fantoni as a result and would do her best to anticipate and meet Renzo Fantoni needs when she saw them. It was not realistic that the Claimant could live in Renzo Fantoni’s property and do no domestic tasks at all. The chores needed to be done by someone. The majority of those household duties fell to the Claimant as Renzo Fantoni had asked her to do her bit when the Claimant paid no utility bills at all. The Claimant was a carer by profession and training to be a nurse and so it is those skills that she could offer to Renzo Fantoni in gratitude for her living at his home rent free. It is clear from the Claimant’s reluctance to leave the property even when she was not being paid to undertake housekeeping duties as she saw it, the fact that she accepted that she could have lived with her friend Abigail at any time, and she could have done housekeeping duties without being in the house that demonstrates to me, the Claimant did not see this as an employment relationship. I found that the Claimant was not caring for Renzo Fantoni on the basis of obligation but on the basis of friendship. It is this context that means that although there was an expectation that the Claimant carry out housekeeping duties and the Claimant would do those duties, there was no mutuality of obligation. Renato Fantoni’s evidence was that when visited the house it was dirty indicates that there were occasions where the Claimant did not do her duties on a weekly basis is supported by Renzo Fantoni’s evidence that the Claimant cleaned the house when it suited her.[98]I also considered it significant that there was only paperwork and details pertaining to hours of work and rate of pay when the Claimant was looking after Renzo Fantoni’s partners. When the partner died, the contractual relationship ended and there was a change. The Claimant’s submissions made no sense that the Claimant was promised a gift for compensation for the work she had done in 2001/2002. As the submission completely ignored the fact that the Claimant been paid for her carer work of £300 per week as evidenced in her bank statements in 2016.[99]The Claimant’s admission that she was encouraged to get a job after the death by Renzo Fantoni and did in fact work full time supports my conclusion that there was no intention of Renzo Fantoni to create a relationship of employment. The amount of the work the Claimant described could not have been under taken with a full time job and the Claimant have the social life that she accepted that she had. During lockdown in the magazine article Renzo Fantoni refers to the Claimant as a lodger. And in his letter agreeing to the Claimant’s request for a loan, he suggests she will receive a gift in his will unless she decides to move away. [423] What he does not say is unless you decide you no longer want to work for me. There was of course an obligation by Renzo Fantoni that the Claimant would carry out cleaning and laundry in return for living in the house rent free. I have found that these are the services that Renzo Fantoni was referring to when he asked the Claimant to leave his home.[100]It was highly relevant that the Claimant did not draw a salary for over 15 years from 2001-2016 and then from mid 2016- until 2021. The Claimant did not ask when the alleged promises of a compensation were made to her of the amount, how could she believe it would be compensation without knowing at all what that compensation was. I conclude that the Claimant knew it was not a promise in return for services at all and that there was no legal obligation associated with the gift, it was a gift it had nothing to do with any services the Claimant provided.[101]The Claimant says that she regarded herself as employed but she did not mention employment until after she had been asked to leave the property. Even in her own version of events on 11 April 2021 [610] the Claimant record of her conversation with Renzo Fantoni is about the gift of money that was not contained in the licence. There is no mention of the licence not reflecting her employment, she says in that document that the reason she does not sign it is because it has nothing to do with the conversation that she had with Renzo Fantoni, which Renzo Fantoni according to her understands to be the gift. The Claimant also says that she does not sign it because she does not understand it. I do not say that this document reflects the conversation that the Claimant had. I have made no finding about it. However, it is instructive about the Claimant’s inconsistent position regarding how she saw the relationship. Who was the employer?[102]The Claimant’s submissions are that the involvement of the brothers in the conversations that lead to the Claimant leaving the property, indicate that the brothers were also the Claimant’s employer as it appeared that Renzo Fantoni could not make a decision without them. It did not indicate that to me. By the time those conversations took place Renzo Fantoni was in his 90’s. the conversations were instigated by the Claimant’s request for a loan. The brothers are concerned for their elderly and vulnerable father as any child would be concerning money. They are a close knit family they go on holiday on an annual basis together. It appeared to me perfectly normal that they would be involved in making sure that their elderly father’s decision was his own to lend the Claimant the money and was what he wanted. I have considered all the texts between the Claimant and the Respondents that I have been referred to and none of those text I have found were instructions by the Respondents individually or collectively for the Claimant to anything. All the texts indicate that a member of the family was asking the Claimant for a favour. There was no obligation on the Claimant to look after Coco the cat, collect Renzo Fantoni’s prescriptions or anything else that the Claimant was contacted about by the Respondents. There was no evidence of any control by any of the Respondents through those text messages or emails. I conclude that Luciani Fantoni, Renato Fantoni nor Daniel Fantoni were the Claimant’s employer at any point in time from 2001-2021.[103]Therefore, I conclude there was no contractual relationship between the Claimant and Renzo Fantoni or the other 3 Respondents and the Claimant at all between 2 December 2001- 31 March 2016 and 5 July 2016- 28 June 2021. Whilst the Claimant was a worker in the periods of 1 July 2001- 1 December 2001 and 1 April 2016-4 July 2016. Reasonable prospects of success[104]I therefore conclude that as the Claimant was not a worker or employee during the periods of 2 December 2001- 31 March 2016 and 5 July 2016- 28 June 2021. In order to bring claims for unlawful deduction of wages, unfair dismissal, failure to give a statement of particulars of employment, national minimum wage and sexual harassment and race discrimination the Claimant needed to be able to show that she was either an employee or a worker. The Claimant does not have reasonable prospects of success in respect of her claims covering those periods and so the claims are struck out in respect of the periods of 2 December 2001- 31 March 2016 and 5 July 2016- 28 June 2021.[105]However, in respect of the remaining periods of 1 July 2001- 1 December 2001 and 1 April 2016-4 July 2016, the Claimant’s claims are all significantly out of time. However, neither party raised the issue of what were the reasonable prospects of success in relation to time being extended in respect of the Claimant’s claims. The Employment Tribunal did not have any time to hear any further submissions on the point. The Employment Tribunal made a case management order in respect of the issue which remained live at the end of the hearing.