Mrs C Crawford v Image IT Ltd T/a Granger Hill: 3321628/2019
EMPLOYMENT TRIBUNALS
Case No 3321628/2019
Between
Mrs C CrawfordClaimantImage IT Ltd T/a Granger HillRespondent
Before
Employment Judge BedeauMr S Liberadski (instructed by Counsel) for claimantMr E Aston (instructed by Solicitor) for respondentDate 25 February 2021
JUDGMENT
The claimant’s application to amend her claims is granted.
REASONS
[1]By a claim form presented to the tribunal on 23 August 2019, the claimant made claims of automatic unfair dismissal; dismissal contrary to section 98(4) Employment Rights Act 1996; and direct sex and pregnancy discrimination, section 18 Equality Act 2010. She states that she was employed by the first respondent as a Graphic Designer, from 1 September 2012 to 1 April 2019.[2]In the response presented to the tribunal on 10 October 2019, the respondents contend that the claimant was not an employee as she had been engaged in work as a casual worker following her signing a Casual Workers’ Agreement. Work was provided on an ad-hoc basis. All claims are denied.[3]At the preliminary hearing held on 11 May 2020, before Employment Judge Warren, the case was listed for a final hearing over four days from 24 to 27 May 2021. It was also listed on 14 December 2020, before an Employment Judge to hear and determine the issue of the claimant’s employment status. 1 ph outcome re case management July 2014 version[4]The claimant’s representative, Ms V Thakerar, solicitor, at the preliminary hearing, submitted that the claimant’s case includes unfavourably treatment as she was allocated less and lower quality work, and was asked to reduce her hourly rate because she had taken maternity leave.[5]Mr Aston, solicitor for the respondent, submitted that the claimant’s only claims are automatic unfair dismissal and direct pregnancy and maternity discrimination because she had taken maternity leave. As such, the case turns on whether or not she was an employee.[6]Although EJ Warren agreed with Mr Aston in relation to how the legal claims have been put, the Judge was, however, of the view that the matters referred to by Ms Thakerar, appeared to be in the pleadings.[7]The Judge listed this hearing to determine the claimant’s application to amend should she make one; to identify the issues; to consider whether an open preliminary hearing satisfies the overriding objective; and to make such further case management orders as may be appropriate.
The background
[8]In giving the background to this case I am not making any findings of fact as did not hear any evidence from the parties.[9]In a claim form presented to the tribunal on 23 August 2019 which has the claimant’s solicitors as being her representatives, she made claims of pregnancy and maternity discrimination. In her Statement of Case, she asserts that she was employed by the first respondent on 1 September 2012, as a Graphic Designer and was dismissed on 1 April 2019. She states that on 9 March 2018, she informed Mr Grainger Hill, the second respondent, that she was pregnant. After disclosing her pregnancy, Mr Hill, on 29 March 2018, advertised for a Graphic Designer/Artworker/Mac Operator. On 17 April 2018, a new person was employed, Ms Molly Vincent, who was contracted on a part-time casual worker basis to provide maternity cover during the claimant’s absence.[10]The claimant had been working up to 26 June 2018 and gave birth on 27 June 2018. Thereafter she was on maternity leave.[11]At a meeting with Mr Hill on 1 February 2019, the claimant informed him that she would be available for work from mid to late February 2019, working Mondays, Wednesdays, and Fridays from 1:30pm to 5:30pm. Following the meeting, the claimant’s casual worker contract was revised to incorporate her new hours of work. Mr Hill advised her to delay her return to work to April 2019, as she would lose out on maternity pay should she return earlier. He informed her that her maternity pay was due to come to an end in April.[12]On 29 March 2019, Mr Hill texted the claimant informing her that a client of the first respondent was looking for someone to carry out freelance work and would be content if she contacted the client directly. However, based on her previous experience, she did not follow this up.[13]On 3 May 2019, while visiting a work colleague at the first respondent’s premises, she witnessed Ms Vincent who was working at her desk. On 13 May 2019, she emailed Mr Hill expressing her concern that she had not been offered work since April 2019 when she was due to return to work and had not been given a start date. 2 ph outcome re case management July 2014 version[14]In Mr Hill’s email to her dated 17 May 2019, he wrote that the work she had been doing, was diminishing and there was a consequent reduced need for her services. Ms Vincent, he wrote, was more proficient in the skills necessary to carry out the kinds of work the first respondent had a current demand for and was cheaper to employ. He did not have any work to offer the claimant.[15]As the claimant believed that Ms Vincent was carrying out work she had been doing, she was of the view that there had not been any diminution in her work and that she was replaced by Ms Vincent because she was on maternity leave and had, effectively, been dismissed.[16]On 22 May 2019, Mr Hill emailed the claimant chasing up a response to his previous emails. He asked her to reconfirm the days and hours she would be available for work, and whether there was any movement in her hourly rate.[17]In the claimant’s reply, dated 23rd may 2019, she stated that she was saddened that Mr Hill felt no obligation to continue with her employment following her maternity leave, and would like to appeal his decision as she was “suffering a disadvantage due to unfavourable treatment”. She refused to reduce her hourly rate of £18 which have been agreed since 2015. She stated that she had seven years’ experience working for the respondents and found his suggestion insulting. She hoped for a resolution to enable her to return to her usual role.[18]In Mr Hill’s email reply dated 31 May 2019, he stated that the claimant was not employed since 2012 as she resigned in 2015, and that on 1 January 2018, she signed a casual worker’s contract which had not been terminated. She was not an employee but a casual worker. He denied he treated her unfairly and asked her to confirm her available days and hours.[19]On 3 July 2019, Mr Hill informed the claimant of the possibility of working for a prospective client of the first respondent and that she should reconfirm the days and times she would be available for work. The claimant replied on 8 July 2019, confirming her days and times which Mr Hill had been aware of earlier in the year. Later, on 8 July, Mr Hill informed the claimant that he would revert to her after speaking to the prospective client.[20]On 9 July 2019, the claimant emailed Mr Hill stating that he should not speak to the prospective client as she would do so should she wish to engage in work for them.[21]It is the claimant’s case that she was employed since 2012 and was dismissed by Mr Hill when he informed her that there was no work for her to do. Her position had been filled by Ms Vincent after Ms Vincent was sent on a website course to obtain the skills the claimant did not have. The only reason why the claimant was replaced by Ms Vincent was that she, the claimant, had been pregnant and was on maternity leave.[22]The claimant, therefore, claims against the first respondent, unfair dismissal as the reason for her dismissal does not fall within section 98(1) Employment Rights Act 1996, “ERA” and that it was contrary to section 98(4), ERA. She also claims pregnancy discrimination under the Equality Act 2010, “EqA”, as she was treated less favourably because she was pregnant and was dismissed because she was pregnant and had taken maternity leave. 3 ph outcome re case management July 2014 version[23]Her grounds of complaint are 10 pages and 41 paragraphs long.[24]In the response presented to the tribunal on 10 October 2019, the respondents averred that the claimant resigned with effect from November 2015. From October 2015 to 14 February 2018, she worked 3 to 4 hours a week on an ad-hoc basis. She could decline work and that the casual workers agreement clearly stated that it did not confer employment rights. These were all the indicators of self-employment. Some of the matters relied by the claimant may be out of time. They requested further information on the unfair dismissal claims.[25]The respondents then gave a different account of events from February 2019. In relation to Ms Vincent, her skills were different from the claimant’s and were needed by them. She was, however, unable to provide consistent hours and signed a Casual Workers Agreement on 1 May 2019. In relation to the pregnancy and or maternity discrimination claims, they asked for further information.[26]I was told that a second Statement of Case served on 20 May 2020, was accompanied by an application to amend. As Mr Liberadski, counsel for the claimant, later became instructed, a final statement of case was prepared by him and served on or around 16 October 2020. It was produced with the intention of clarifying, legally, the claims.[27]In relation to the final Statement of Case, in paragraphs 11 reference to the claimant being an employee and worker is deleted to be replaced by the claimant was an employee within the meaning of section 230(1) ERA and section 83(2) EqA to include a worker.[28]Paragraph 37 is an additional paragraph in which the claimant states that she was automatically unfairly dismissed under regulation 20 Maternity and Parental Leave etc Regulations 1999, “MPLR”. It states the following:- “Automatically Unfair Dismissal[37]The claimant bring the claim for automatically unfair dismissal pursuant to regulation 20 of the Maternity and Parental Leave etc Regulations 1999. The claimant was dismissed (or if, which is not admitted, it is found that she was dismissed by reason of redundancy, she was selected for redundancy) because of reasons connected with her pregnancy, the fact that she had given birth, and/or the fact that she had taken, sought to take or avail herself of the benefits of maternity leave.”29. The amendment in paragraph 38 is to plead unfair dismissal under section 98(1) and 98(2) ERA, in the alternative.30. Paragraph 39, in which the claimant was pursuing a claim for personal injury compensation, is deleted.31. Paragraph 41 uses the correct terminology under section 18 EqA of unfavourable rather than less favourable treatment.32. Paragraph 42 is an addition in which she claims direct sex discrimination and/or pregnancy under section 13 EqA.33. Paragraph 43 is also an additional paragraph in which the claimant claims detriments and/or less favourable treatment, short of dismissal, under regulation 19 MPLR; unfavourable treatment contrary to section 18 EqA; and direct discrimination because of sex and/or pregnancy and maternity. The 4 ph outcome re case management July 2014 version detriments being the respondents’ failure to offer her work on or after 1 April 2019, and the second respondent’s request on 22 May 2019 to reduce her hourly rate.34. In terms of remedy, the claimant claims declarations that she was unfairly dismissed and discriminated against, compensation for financial losses both past and future, as well as for injury to feelings. Submissions35. Mr Liberadski submitted that the Employment Judge at the earlier preliminary hearing, anticipated that there would be further information from the claimant clarifying her claims. The Judge was of the view that she had referred to a number of factual matters in her claim form but had only identified two claims. The purpose of the final statement of case is to clarify her claims. Section 83(2), Equality Act 2010, provides a broader definition of in employment to include a worker which the claimant is entitled to avail herself of. Paragraph 11 uses the correct terminology. There are no additional facts only what the claimant had put, in narrative form, in her claim form.36. Paragraph 37 adds automatic unfair dismissal under regulation 20 based on the facts as pleaded. 37. In paragraph 41 the claimant asserts, and has been consistent, that her dismissal was because of her pregnancy and/or maternity. Paragraph 42 is the section 13 EqA claim.[38]Section 18 would include a broader definition of employee and includes a worker, who has the right to take maternity leave.[39]Regulation 19 as referred to in paragraph 43, allows the claimant to pursue a claim against the respondents short of dismissal. The respondents assert that she was never dismissed but the claimant was not offered work.[40]What the claimant has done, Mr Liberadski further submitted, is to apply new labels to facts already pleaded. She is entitled to invite the Tribunal to consider whether she was a worker should her claims of unfair dismissal and pregnancy and/or maternity dismissal fails on the basis that she was not an employee in the strictest sense..[41]Mr Aston, solicitor on behalf of the respondents, submitted that in the claimant’s claim form she brought claims of unfair dismissal and under section 18 EqA. They were brought on the basis that she was asserting that she was an employee and not the worker and refer to her dismissal. He contends that she was not an employee and cannot bring a claim under section 18 as a worker. Her detriment claims are new. She sought to expand her claims and had three opportunities to do so.[42]The new claims raise new legal points over and above what the claimant had pleaded in her claim form. It was only after raising the issue of the consequences for her in maintaining her status as an employee, she then produced her final statement of case. He invited me to refuse the application to amend leaving only the unfair dismissal and section 18 claims based on her dismissal. If she fails to establish at the preliminary hearing on 14 December 2020 that she was an employee, her claims will fail. The respondent position all along was that she was a worker and not an employee. 5 ph outcome re case management July 2014 version[43]Mr Aston further submitted while workers may be entitled to Statutory Maternity Pay, they are not entitled to Ordinary Maternity or Additional Maternity Leave which an employee is entitled under regulation 4 MPLR, and under regulation 2, an employee does not cover a worker.[44]Respondents will suffer injustice and hardship if the application is allowed as time would have to be spent on addressing the additional claims and how they have been put. This will incur the expense.
The law
[45]A party can apply to amend a claim or response at any time in proceedings, Selkent Bus Co Ltd v Moore 1996 ICR 836 and rule 29, schedule 1, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.[46]Whether an amendment is required will depend on whether the claim form or response provides, in sufficient detail, the complaint or defence the party seeks to make. The mere fact that a box is ticked indicating a specific claim such as direct race discrimination does not mean that it raises a complaint of indirect race discrimination and victimisation. In considering whether the claim form contains a particular complaint that the claimant is seeking to raise, it must be considered as a whole. The mere fact that a box is ticked indicating that a certain claim is being made may not be conclusive in determining whether it sets out the basis for such a complaint, Ali v Office of National Statistics 2005 IRLR 201, Court of Appeal.[47]Sir John Donnaldson, in Cocking v Sandhurst (Stationers) Ltd and Another, [1974] ICR 650, in the National Industrial Relations Court, gave guidance on what the Tribunal should have regard to when considering whether to allow an amendment. He stated that Tribunals must have regard to all the circumstances, in particular, any hardship which would result from either granting or refusing the amendment. This was approved in Selkent.[48]In Selkent, over twenty years later, Mr Justice Mummery, President, as he then was, held that in determining whether to grant the amendment application, the Tribunal must always carry out a balancing exercise of all relevant factors, having regard to the interests of justice and to the relative hardship caused to the parties if the application is either granted or refused. The relevant factors are: the nature of the amendment; the applicability of time limits; and the timing and manner of the application.[49]Applications to amend range from: the correction clerical or typing errors; the addition of new factual details to existing allegations; the addition or substitution of other labels for facts already pleaded; or the making of entirely new factual allegations which changes the basis of the existing claim. Tribunals have to decide whether the amendment sought is one of a minor matter or a substantial alteration so much so that it pleads a new cause of action, Selkent.[50]In the case of New Star Asset Management Ltd v Evershed [2010] EWCA Civ 870, the Court of Appeal allowed the claimant to add public interest 6 ph outcome re case management July 2014 version disclosure to a constructive unfair dismissal claim as the amendment did not raise new factual allegations.[51]In Ahuja v Inghams [2002] ICR 1485, the CA held, Mummery LJ, that Employment Tribunals have the power to allow an amendment even at a late stage based on the evidence given at the hearing. They have a wide jurisdiction to do justice in the case and “…should not be discouraged in appropriate cases from allowing applicants to amend their applications, if the evidence comes out somewhat differently from what was originally pleaded. If there is no injustice to the respondent in allowing such an amendment, then it would be appropriate for the Employment Tribunal to allow it rather than allow what might otherwise be a good claim to be defeated.”, paragraph 43.[52]It may be appropriate to consider, as another factor, whether the claim, as amended, has any reasonable prospects of success, but the Tribunal should proceed with caution as evidence will be required in support of the amendment, Cooper v Chief Constable of West Yorkshire Police and Another UKEAT0035/06; and Woodhouse v Hampshire Hospitals NHS Trust EAT0132/12.[53]Whether the claim would be in time if the amendment is a new claim, is not determinative of the application to amend.[54]In the Presidential Guidance – General Case Management, issued on 22 January 2018, amending a claim or response, falls within rule 29 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the power of the Tribunal to issue case management orders. “In deciding whether the proposed amendment is within the scope of an existing claim or whether it constitutes an entirely new claim, the entirety of the claim form must be considered.”, paragraph 7. “The fact that the relevant time limit for presenting the new claim has expired will not exclude the discretion to allow the amendment”, sub-paragraph 11.1 Conclusion .
Conclusion
[55]I am required to consider the claim form as a whole to determine whether it raises a claim or claims the claimant is seeking to make, Ali v ONS. In her claim form, in her first Statement of Case, she refers to having signed a Casual Workers’ Agreement; that work was not offered to her since 1 April 2019; that she was asked to reduce her hourly rate; she decided whether to take on work with the respondent’s prospective clients, which suggests she may be a worker or independent contractor; that Ms Vincent had taken over her role and had been given training to acquire new skills; and that she, the claimant, had been dismissed. She claims the discriminatory treatment including her dismissal occurred while she was pregnant and on maternity leave.[56]Having considered those factual assertions, I conclude that what the claimant is seeking to do in her final Statement of Case, is to put labels on facts already pleaded and has not made any new factual allegations or entirely new claims. She is entitled to argue that not only was she an employee, in “employment”, but also a worker. 7 ph outcome re case management July 2014 version[57]Her position was clarified by Mr Liberadski, once he became instructed.[58]I take into account the passage cited above in the case of Ahuja v Ingham. The factual allegations are pleaded and do support the basis upon which the claims are put.[59]In relation to the balance of prejudice, if the application is not granted, and the claimant loses at the preliminary hearing on 14 December 2020, on the issue of whether she was an employee, she will have no claims against the respondents. On the other hand, the respondents would have to orientate their case to take into account the new claims, which in my view, is likely to be based more on legal argument than on additional evidence. There are no new factual assertions. I was not persuaded that the prejudice to the respondents outweighs the prejudice the claimant.[60]I have not dealt with the merits of claims as they will be determined on the facts as found by the Tribunal. I am, therefore, unable to express a view on this issue and do follow the approach in the cases of Cooper v Chief Constable of West Yorkshire Police, and Woodhouse v Hampshire Hospitals NHS Trust.[61]Accordingly, and having regard to the above matters, I grant the claimant’s application.
Conclusion
[1]This matter came before me for an open preliminary hearing to determine the status of the Claimant’s engagement by the First Respondent from October 2015 to April 2018.
The Evidence
[2]I heard the evidence of the Claimant on her own behalf, the evidence of Mr Hill, controlling director, and Mrs White, production manager, on behalf of the Respondents. I read the documents in a bundle to which I was referred and heard and considered the submissions made on behalf of parties. I make the following findings of fact.
Findings of Fact
[3]It was common ground between the parties that the Claimant was an employee of the First Respondent from 1 January 2012 until late October 2015. It was also common ground that whatever her status was thereafter it remained the same throughout.[4]The Claimant was born on 13 January 1988 and worked for the First Respondent as an employee from 1 January 2012 as a graphic designer.[5]The First Respondent is an “instant print” provider, which also offers graphic design services.[6]The Claimant worked five days a week, Monday to Friday, 8.30 to 5.30. She described herself as a graphic designer/pre-press Mac operator producing digital files for CMYK print. The First Respondent had a franchise with “printing.com” for litho printing, and the Claimant was the only person able to operate that software. Although that was her principal work I accepted that she also met clients, answered the phone, took and processed orders, served customers, took payments and printed invoices and, on occasions, helped out in the production department.[7]There does not appear to have been any written record of the Claimant’s employmen,t and she was not issued with a statement of terms and conditions of employment. The Claimant salary at the time of her resignation was £17,000 per annum.[8]On about 23 October 2015 the Claimant wrote to the second respondent in the following terms, “Please accept this letter as notice that I wish to resign from my position as graphic designer at Image It. My last day of employment will be Friday 6th November. I would like to take this opportunity to thank you for the experience and I wish Image It the best of luck for the future.”[9]The Claimants decision to leave her employment was prompted by an offer of employment by Rugby college. That post was full time and the Claimant would have been paid at a rate of £15 per hour.[10]It was clear from the evidence before me that Mr Hill was not happy to be losing the Claimant. He wasted no time in seeking to recruit a replacement, placing advertisements and emailing contacts within a week. He also discussed the situation with the Claimant and offered to better the pay she had been offered by Rugby College.[11]Mr Hill wrote to the Claimant on 30 October 2015 in the following terms , “It is with much reluctance that we accept your letter of resignation of Friday 23rd October and acknowledge your last working day Friday 6 November. I wish to thank you for the three years of service and the contribution you have made to the business success during this. You have been and are a valued member of the team and will be greatly missed. I very much appreciate that you are available to come back to work on Friday 27 November to provide cover with [Mrs White] while I'm away in Devon. Ideal hours would be 9:00 AM through to 5:00 PM taking an hour for lunch. For this we agreed to pay you £120 which can be paid into your final salary this month, if you prefer. In addition to the above day, I sincerely hope that we can continue to use your skills on a freelance basis once you better understand your available weekly hours. To clarify, we are offering you work on a freelance basis, based at Image It premises at a rate of £18 ph, ideally in five hour blocks, once a week should your availability allow. As discussed, I would again appreciate the offer of your assistance to help me train any new employees with the PDC process, once we appoint a replacement for your role. For this service we would apply the same hourly rate quoted above. Charlotte, I wish you every success in your future employment and every blessing to you and Dan as you plan your family life together. Please do keep in touch with us all here and call in whenever you're passing, we would love to see you.”[12]The Claimant did not take up the job at rugby college. She continued working for the First Respondent carrying out the same duties she had before and being paid for them at a rate of £18ph.[13]Over the next few months she increased her hours from 20 hours in December 2015 to 60 hours in April 2016, and averaged 60 hours per month thereafter. She remained on the First Respondent’s PAYE system throughout.[14]I did not accept that Mr Hill and Mrs White were unaware that the Claimant had not taken the Rugby College job. They must have known that from the fact that the Claimant was available for the hours she worked.[15]This arrangement was never really discussed between the parties. The business failed to recruit a replacement for the Claimant, and she just carried on as she had before. She did not have fixed hours but attended when asked or by mutual agreement. All the equipment she needed was provided to her, and she took no financial risk.[16]I accept that during the relevant period the Claimant:-16.1 Worked for a short period as an employee, for 2 hours a week, for Northamptonshire County Council; and16.2 Carried out some graphic design work for one of the First Respondent’s clients, Mr Bannister, at the request of Mr Hill. I am however, satisfied that the Claimant was never in business on her own account. She did not advertise, invest in equipment or material, or hold herself out as being generally available for graphic design work.[17]When she attended the First Respondent’s premises, which is where she did all her work, she would be given a list of jobs and the deadlines for them. I accepted her evidence that she was expected to work through such lists until they were completed, and there was no option for her to decline any of them. She was not paid per job, but by the hour.[18]Whilst the Second Respondent’s evidence was to the effect that the Claimant was free to refuse any work she wished to, and there was no expectation that he would offer her work or that she would accept it, I do not accept that this was the reality of the relationship.[19]As is clear from the views expressed in the exchanges in October 2015 the Claimant and the Second Respondent were on very good terms. I have no doubt that had either party to the arrangement refused to provide work or to carry it out the other would have been extremely surprised. There was clearly an understanding or expectation that the Respondents would offer the Claimant work on a regular basis, and that she would accept that offer.[20]The Claimant and the Respondent discussed this arrangement in late 2017. This was at the Claimant’s instigation, because she was unhappy that she was not being paid for holidays. I also accepted her evidence that she had to ask the Second Respondent before she could book a holiday, and was refused permission if Mrs White had already booked the same dates.[21]The Second Respondent discussed this matter with his lawyers, received advice, and on 1 January 2018 wrote to the Claimant under the heading “ Re Casual Workers contract” and set out what had purportedly been agreed. It made provisions, in summary, as follows:-21.1 It applied from that date.21.2 It was expressed not to be an employment contract and to confer no employment rights.21.3 There was no obligation to provide assignments or to accept them.21.4 There was no presumption of continuity between assignments21.5 If the Claimant was offered an assignment she was expected to complete it21.6 The Claimant was required to work at the Respondent’s premises.21.7 The Claimant would be informed of the hours she would be required to work for an assignment.21.8 The Claimant would be paid £18ph and all tax and NIC deductions would be made.21.9 The Claimant would be entitled to 5.6 weeks holiday pay pa pro rata.21.10 Whilst at work the Claimant would comply with the rules and procedures in the staff handbook. The Claimant signed a copy of that letter on 26 February 2018.[22]I find as a fact that :-22.1 the purported agreement did not accurately reflect what had been discussed between the Claimant and the Second Respondent, which had been confined to the wish of the Claimant to be paid for holidays.22.2 The Claimant was in a subordinate role at the time that the agreement was presented to her. She did not read the document through, or seek advice before signing it. As far as she was concerned the relationship was to carry on as before, save that she would now be paid for holidays.22.3 The Claimant was never offered ‘assignments’ but, as before, agreed with the Respondents that she would work on certain dates and be given lists of job to do when she arrived.22.4 The Second Respondent also believed the only change made by this document was for holiday pay.[23]Following this, the Claimant continued working exactly as she had before the letter was signed until she informed the Respondents of her pregnancy on 9 March 2018, and went on maternity leave on 26 June 2018.[24]In the interim, from 29 March 2018 the Respondents advertised for a, “Graphic Designer/Artworker / pre-press Mac Operator … Part-time leading to full time. Salary to suit experience. …”[25]That position was offered to Ms M Vincent by letter of 11 April 2018 for 20hr pw at £12ph, which she appears to have accepted and started on 17 April 2018. However, by a further letter to Ms Vincent dated 1 May 2018, which she accepted on 30 May 2018, she agreed to purported terms effectively identical to the purported ‘Casual Workers contract’ signed by the Claimant. The Parties’ Submissions[26]I received written and oral submissions on behalf of each of the parties. It is neither necessary nor proportionate to set them out here.
The Law
[27]I am concerned with whether or not the Claimant was an employee within section 230 employment rights act 1996. I was referred to the following authorities and considered them. Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 (QBD) Nethermere (St. Neots) Ltd v Gardiner [1984] ICR 612 (CA) Smith v Goodmayes Insulations Ltd (EAT/55/97) Byrne Bros (Formwork) Ltd v Baird [2002] ICR 667 (EAT) Wilson v Circular Distributors Ltd [2006] IRLR 38 (EAT) Autoclenz Ltd v Belcher [2011] ICR 1157 (SC) Dakin v Brighton Marina Residential Management Co Ltd (UKEAT/0380/12/SM) Pimlico Plumbers Ltd v Smith [2018] ICR 511 (SC) Market Investigations Ltd v Minister for Social Security [1969] 2 QB 173 Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 Massey v Crown Life Insurance Co [1978] 1 WLR 676 Carmichael v National Power plc [1999] 1 WLR 2042 Stevedoring & Haulage Services Ltd v Fuller [2001] IRLR 627 Quashie v Stringfellow Restaurants Ltd [2013] IRLR 99 Matthews v HMRC [2014] STC 297 Arnold v Britton [2015] AC 1619[28]I did not find any of the authorities on contractual interpretation in cases not concerned with employment law helpful: Uber BV & Others v Islam & Others UKSC 2019/0029, para. 60-64. In that context I also rely on the Judgment in Uber at paragraphs 68-88 as providing clarity as to how these issues should be approached, in particular, ’opt-out’ agreements.
Conclusions
[29]In reality the only issue between the parties in the case before me is whether or not there was a mutuality of obligation between the parties.[30]I refer to all my above findings of fact and reach the conclusion that there was such a mutuality of obligation. The purported ‘Casual Worker contract’ did not reflect the long established reality.[31]The Claimant and the Respondents both conducted themselves on the basis that if the First Respondent had suitable work for the Claimant it would be offered to her and she was expected to and did accept it.[32]The Claimant has satisfied me, on the balance of probabilities that she was throughout, an employee of the First Respondent. 25/02/2021