Mr A Adeyemi v Shield Logistics Solutions Ltd: 3325811/2019
EMPLOYMENT TRIBUNALS
Case No 3325811/2019
Between
Mr A AdeyemiClaimantShield Logistics Solutions LtdRespondent
Before
Employment Judge LaidlerDate 9 May 2022
JUDGMENT
[1]No response having been received from the respondent judgment is entered for the claimant’s claim of unpaid annual leave.[2]The claimant was entitled to but was not given 5.6 weeks paid annual leave.[3]The respondent is ordered to pay to the claimant the total sum of £2500.05 in respect of this entitlement (average weeks’ pay for last 12 weeks of employment £453.58).[1]The Default Judgment entered against the Respondent on the 6 April 2020 is set aside and the Respondent granted leave to defend the proceedings.[2]The Respondent must file and serve its Response to the proceedings within 21 days of the date on which this judgment is sent to the parties.
REASONS
[1]Judgment was entered in default of a Response on the 6 April 2020. It was not sent to the parties until the 17 July 2020.[2]By application of the 14 August 2020 the Respondent applied to set aside the judgment. It had not received the original claim form and did not receive the default judgment until the 10 August 2020. 11.12 Judgment on reconsideration – no hearing - rules 70 and 73 Case No: 3325811/2019[3]From the Respondent’s application it appears that it has a defence to the claim and it is only in accordance with the overriding objective that have the opportunity to argue that.[1]The Claimant asserts that he was previously employed by the Respondent and is entitled to holiday pay accrued over a one-year period whilst he was in that employment. He also asserts that he is entitled to compensation for having to make the claim and for the stress of having to work continuously without holiday.[2]The Respondent denies that the claimant was an employee. The Respondent asserts that the Clamant was a self-employed sub-contractor and that all day to day work arrangements were agreed between the Claimant and the end client. The Proceedings/Hearing[3]After a period of early conciliation through ACAS on 6 August 2019, the claim form (ET1) was lodged with Tribunal on the 16 October 2019.[4]Default judgment was made against the Respondent on the 6 April 2020 in the following terms: 1. No response having been received from the Respondent judgment is entered for the claimant’s claim of unpaid annual leave. 2. The claimant was entitled to but was not given 5.6 weeks paid annual leave. 3. The respondent is ordered to pay to the claimant the total sum of £2500.05 in respect of this entitlement (average weeks' pay for last 12 weeks of employment £453.58).[5]On the 14 August 2020, the Respondent made a written application for the default judgment be set aside.[6]On the 8 January 2021, Employment Judge Laidler set aside the default judgment for the following reasons: 1. Judgment was entered in default of a Response on the 6 April 2020. It was not sent to the parties until the 17 July 2020. 2. By application of the 14 August 2020 the Respondent applied to set aside the judgment. It had not received the original claim form and did not receive the default judgment until the 10 August 2020. 3. From the Respondent’s application it appears that it has a defence to the claim and it is only in accordance with the overriding objective that have the opportunity to argue that.[7]The Respondent subsequently filed a response to the claim.[8]A hearing was listed for 15 October 2021 but was adjourned due to lack of judicial resources.[9]The matter was then listed for hearing on the 26 January 2022 before Employment Judge Laidler. At that hearing, the Respondent requested an adjournment in order to call a witness that was not present. The hearing was adjourned as there was no witness statements from either party and there were also key matters that required further clarification, in particular relating to the claimed dates of employment. In addition, the Respondent had not received a copy of the ET1 form, or payslips previously filed by the Claimant on the 13 March 2020.[10]At the hearing, further Case Management Orders were made. These included that the Claimant was to confirm to the Tribunal and Respondent the start and end dates of his employment by the 9 February 2022. The Respondent submitted that the Orders made should be ‘Unless Orders’ but no such orders were made.[11]The matter was then listed before me on the 30 March 2021 for a full merits hearing.[12]At the hearing I heard evidence from the Claimant. As he had provided only a brief witness statement, I asked him a series of questions to establish what his evidence was. He was not cross examined.[13]The Claimant indicated at paragraph 2 of his statement (provided on the day of the hearing) that he had a witness, referred to as Mr Kevin P, who could support his claim. There was no application for an adjournment before me, but as the Claimant was unrepresented, I explored this issue with him further.[14]He says in his statement that Mr Kevin P was also an agency worker, was one of many managers on site and was aware of the tasks that he undertook on site. I explained to the Claimant that the Respondent was not in any way disputing what he did on site or how his day to day work was managed. I explained to the Claimant that from what I could see from the information before me the witness was unlikely to provide any additional evidence material to the matters that I must decide. In those circumstances I did not consider that this potential witness’s evidence would be material to the outcome of his claim. The Claimant confirmed that he was content with this.[15]The Claimant mentioned in his evidence that he had hoped to get a transcript of a telephone call that he had with ACAS, although he did not apply for an adjournment in order to try to do this. Despite this, I did consider whether I should adjourn to provide the Claimant with the opportunity to seek to obtain a transcript if available. However, I did not consider that it was in accordance with the overriding objective to do so. This was because there was no evidence before me to demonstrate that any attempts had been made to obtain any such transcript to date despite the claim having been lodged over 18 months prior to the hearing. I did not consider that any further delay was proportionate in the circumstances of this case or that the position would be any different on a subsequent occasion if an adjournment were to be granted.[16]The Respondent did not call any witnesses to give evidence. I heard closing submissions from both parties. I reserved my judgment. Documents[19]As well as the documents held on the Tribunal file, the Tribunal had before it a bundle (prepared by the Respondent) of 17 pages, payslips submitted by the Claimant on the 13 March 2020 (covering the period from 21 April 2019 to 7 July 2019), the Claimant’s witness statement dated 30 March 2022 (there are two versions; the version relied upon comprises 4 paragraphs), and the witness statement of Gareth Bough, Director for the Respondent, dated 10 March 2021. Issues to be determined i. What were the start and end dates of the work undertaken by the Claimant. ii. Was the claim submitted in time (that is three months from the last date that the Claimant worked). iii. If the claim was not submitted in time, was it not reasonably practicable for the complaint to be presented in time and, if not, was it presented within a further reasonable period. iv. If the Tribunal has jurisdiction to decide the matter, was the Claimant a “worker” for the purposes of the Working Time Regulations 1998 (“the WTR”). v. If the Claim succeeds on points 1 to 4 above, what pay in lieu of annual leave is the Claimant entitled to under the WTR.[20]In respect of point v., Mr Welsh confirmed that if the Claimant overcame the time limit issue and then succeeded on liability, it was accepted that the amount payable would be as determined previously by Employment Judge Laidler as set out in the default judgment.
Findings of Fact
[21]The Claimant’s evidence was not challenged by way of cross examination. The Respondent acknowledged in closing submissions that the Claimant presented as an open and honest witness. The Respondent confirmed that the factual matrix as presented by the Claimant regarding the roles of the Respondent, Tradeline and Spitfire accorded with the Respondent’s position.[22]I found the Claimant to be a straightforward and truthful witness. There was nothing about his evidence that caused me to doubt the credibility of his account. There were some aspects of his account that were vague but, as it was around 20 months since the Claimant ceased the work in question, it is unsurprising that he cannot recall all of the details, dates and timelines.[23]Where there is no dispute between the parties as to a particular fact, my findings of fact are recorded below without any further explanation. Where the facts are not agreed by both parties, I have explained why I prefer one party’s account over the other. Where the facts are not clear, I have explained why I have made the finding of fact concerned. My findings of fact are as follows:[24]The Claimant commenced working as a labourer at a construction site at Hadley Wood on or around the 6 April 2018. He worked on that one site throughout. The developer of that site was Spitfire Bespoke Developments (“Spitfire”). He obtained the work through an agency called Tradeline which has relationships with various developers. He was asked a few questions by Tradeline, and then Tradeline approached the end client, Spitfire. Tradeline did not have any other involvement. Tradeline also gave him the Respondent’s telephone number and asked him to contact them. It was explained to him that the Respondent was an umbrella company facilitating payments for the work.[25]Before he started work on site, he had to sign a contract with the Respondent. Arrangements regarding payment were made. The Claimant acknowledges that he may well have been sent a copy of a contract dated 20 March 2019, although he does not remember it specifically. He understood that this new contract was issued on 20 March 2019 because the Respondent changed its name.[26]The agreement between the Claimant and Respondent is entitled ‘Contract for Services’ and is dated 20 March 2019. It was sent to the claimant electronically. The version provided to the Tribunal is not signed by the Claimant, but he does not deny that he received it.[27]In the agreement the Claimant is described throughout as ‘the Sub-Contractor’. Key clauses include the following: 1.7 The rights and obligations arising out of this Agreement are personal to the parties but may be sub-contracted by either party, with the consent of the other party, whose consent shall not be unreasonably withheld or delayed. 1.8 The parties agree that the relationship between the parties is not one of employer and employee. 1.9 On each assignment where control exists the sub-contractor will remain working in a self-employed capacity although his tax status will be that of 'employed’ in accordance with the Agency Legislation. This will have no effect upon his employment status which will remain that of a self-employed Subcontractor. 1.10 There is no obligation for the Sub-contractor to provide his services personally and so, he does not meet the criteria of an Agency Worker as defined in the Agency Workers Regulations 2010, nor of a worker in the National Minimum Wage Act 1998, nor of a worker in the Pensions Act 2008, nor of a worker in the Employment Rights Act 1996 and nor of a worker in the Working Time Regulations 1998. 1.11 The Sub-contractor confirms his understanding of the fact that, as a selfemployed Sub-contractor, he has no claim to any employment rights such as holiday pay, redundancy pay, grievance rights or sick pay (this list is not exhaustive) throughout the duration of this contract.2.1 The Sub-Contractor confirms that he is self-employed running his own business and agrees that he has no authority to bind the Company in any way and shall not represent that any such authority exists. The Sub-Contractor must not incur any liability on behalf of the Company and must not make any arrangement, formal or informal, on behalf of the Company without seeking the approval of the Company.2.2 The Sub-Contractor is entitled to accept and perform engagements from other contractors or third-parties at any time. By entering into this Contract for Services the Sub-Contractor agrees that he will make himself available to execute Works Orders as required (subject to other business commitments) but shall not be obliged to accept all Works Orders. ………… 2.6 The Sub-Contractor is required to provide, at his own expense, sufficient insurance to cover third party risks in relation to persons and property and against liability in respect of accident or injury to employees of the SubContractor whilst undertaking the contract. This certificate must be presented to a company representative prior to undertaking work under this contract for services. The Company may be able to provide a list of suitable insurers if required. 2.7 In the event that the Sub-Contractor accepts an assignment, and is unable or unwilling to undertake the work personally, he will be required to engage a substitute Sub-Contractor in order to fulfil the terms of the contract. In the event that the Sub-Contractor is unable to locate a suitable substitute, the Company will make the necessary arrangements to ensure that the contract is completed. Any costs associated with replacing the Sub-Contractor will be re-charged by the Company to the Sub-contractor or monies will be withheld from future payments. ……… 2.9 The Subcontractor confirms that both the Client to whom the services will be provided has been informed, and accepted, that the Subcontractor may use a substitute or representative to fulfil the terms of the contract. 2.10 The Sub-Contractor will provide, at his own expense, all tools and other equipment as shall be necessary to carry out the assignment. 2.11 Pursuant to Regulation 3 (2)(a) (b), the Sub-Contractor agrees that the Agency Worker Regulations 2010 will not apply to this Contract for Services. …….4.1 The company is under no obligation to offer or provide assignments on a continuous basis to the sub-contractor and nothing in this agreement shall commit or shall be construed as committing the company to offer or provide such work. A works order will be issued for each assignment under this contract for services.4.2 The Works Order will stipulate whether, in accordance with the Agency Legislation, the remittance payable to the Sub-Contractor will be treated as employment income and so, subject to tax and National Insurance contributions (NIC).4.3 In the event that a Sub-Contractor accepts a Works Order and is unwilling or unable to fulfil the Works Order personally, the Company will give the SubContractor the opportunity to find a substitute Sub-Contractor within the original contract timeframe. The Sub-Contractor named on this agreement will be responsible for payment and the quality of workmanship.4.4 In the event that the Sub-Contractor is unable or unwilling to provide a substitute Sub-Contractor, the Company may, at its discretion, offer the contract to a replacement Sub-Contractor to meet client requirements. Any charges associated with engaging with a replacement Sub-Contractor will be re-charged to the Sub-Contractor.4.5 Under no circumstances will the Company pay the Sub-Contractor for any hours where no services are provided.4.6 The Company accepts that the Sub-Contractor is acting in a genuine business to business relationship pursuant to Regulation 3(2) (a)(b)Agency Worker Regulations 2010. Consequently, the AWR will not apply to this Contract for Services. …….5.1 The Sub-Contractor shall maintain an accurate timesheet detailing the number of hours worked. At the end of each week of an assignment, the SubContractor shall deliver to the Client a timesheet duly completed to indicate the number of hours worked by the Sub-Contractor during the preceding week and signed by an authorised representative of the client.5.2 The Sub-Contractor agrees to allow the Company to prepare invoices on its behalf and shall confirm to the Company whether the Sub-Contractor is registered for VAT. Invoices raised shall, where applicable, constitute a VAT invoice and will include tax and NIC deductions as appropriate when the Agency Legislation applies.5.3 The Contract Sum will be agreed between the Company and the SubContractor. Any rate specified by the Client on the Works Order will represent the rate agreed between the Company and the Client for the supply of services and will have no relevance to the Contract Sum agreed with the Sub-Contractor. …… 5.5 The Sub-Contractor acknowledges and accepts that he is trading as a business and, as such, the Company will not pay statutory sick pay, holiday pay, and statutory maternity pay or contribute to or make available a pension scheme to the Sub-Contractor or his representatives. ……. 8.1 Save for when the Agency Legislation applies, the Sub-Contractor shall be responsible, for all taxes in relation to the provision of services to the Company together with all employment obligations in connection with any person engaged by the Sub-Contractor in carrying out assignments for the Company. ……. 9.1 This Agreement may be terminated by either party with immediate effect by giving one week’s written notice to that effect to the other party. ……. 9.4 The Company may terminate this contract without notice in the event of: (a) the Sub—Contractor being convicted of a criminal offence which the Company believes would adversely affect the business of Company or its Client or the provision of the services, (b) the Sub-Contractor acting in breach of the rules and regulations in operation at the Client’s place of work, (i) the Client has requested the Sub-Contractor to leave the Client’s place of work, (ii) the Client has requested the Sub-Contractor to cease performing the services for whatever reason, (iii) for any reason, the Sub-Contractor proves to be unsatisfactory to the Client (iv) if the Sub-Contractor becomes insolvent, subject to a winding-up petition or bankruptcy order, has a receiver appointed over his property or makes a proposal to enter into any voluntary arrangement pursuant to the Insolvency Act 1986. ……[28]The Respondent was responsible for making payments to the Claimant on a weekly basis once they were told how many hours he had worked on any given week. On the payslips, the payments are referred to as ‘Subcontractor Payments’. Deductions were made for income tax, national insurance contributions and a student loan.[29]The Claimant took day to day instructions from the site manager. He did whatever he was told to do. He had no tools of his own. He was provided with whatever equipment was required. He was subject to standard hours of work, but the site manager had discretion to allow flexibility with his hours. He would also sometimes work additional hours. The site manager told him when to take his lunch break. He was paid an hourly rate which was always the same.[30]Spitfire provided personal protection equipment such as hard hat, high visibility clothing and gloves. The only item he ever purchased for use on site was boots. He never purchased building materials. He has never sent a substitute labourer to undertake the work instead of him. Whilst there is reference in the agreement to the Respondent providing “Works Orders”, he has never received any written or verbal orders from the Respondent: he was just told that whatever Spitfire told him to do he should get on with it.[31]The Claimant’s understanding was that he was undertaking the work as an employee. He did not set up his own business in connection with the labouring work that he was undertaking. He has never been registered with HM Revenue and Customs as self-employed. He did not file self-assessment tax returns. He took some time off whilst he was working on the Spitfire site. This was so that he could undertake crane operator training. He paid for this training himself. It was not undertaken in anticipation of him undertaking crane operating work on the Hadley Wood site.[32]He did make enquiries about entitlement to holiday at one point whilst he was working. He spoke to Gary from Tradeline about it. He spoke to Tradeline rather than the Repsondent because they had been his first point of call. He did not get a concrete answer to the question, and that is why he did not pursue it.[33]At section 5.1 of the claim form, the Claimant stated that his employment ended in August 2019. In an email to the Tribunal dated 13 March 2020, he stated that the dates of his employment were 30 July 2018 until 15 March 2019.[34]I asked the Claimant what was the last day that he worked. He replied that it was in July but that he could not remember the exact date. Mr Welsh stated that the Respondent’s position is that he last worked on the week ending the 7 July 2019.[35]The most recent payslip provided by the claimant is entitled “Tax Period 14 - Week Ending 07.07.2019”.[36]Whilst the Claimant stated in the claim form that he was employed until August 2019, no evidence has been provided to substantiate this initial assertion and it was also contradicted by what he said in live evidence.[37]It is not suggested by the Claimant that there was a later payslip that he is not able to provide and he has not provided any other documentary evidence to demonstrate that he was still working subsequent to the 7 July 2019. Taking in to account the vagueness of the Claimant’s oral evidence in this respect and what is recorded in the last payslip that has been provided, on the balance of probabilities, I find as a fact that the last day of work was the 7 July 2019.[38]The Claimant contacted Acas on the 6 August 2019 and, according to the Early Conciliation Certificate, conciliation ended on the same date. Adding on the one day of early conciliation, the Claimant therefore had until the 7 October 2019 to lodge his claim with the Tribunal. His claim was therefore made 9 days after the three-month time limit.[39]I asked the Claimant a series of questions to explore why he did not lodge his claim within the three-month time limit. His evidence can be summarised as follows.[40]He cannot remember the exact date when he decided to make a holiday pay claim to the Tribunal. He was looking at his payslips, and he noticed that he had not taken any holiday: the situation came to light at the end of his contract. He thought this occurred in the week after the work ended, that is around the 11 or 12 July 2019.[41]Prior to contacting Acas, he undertook his own research online looking at what rights he had and what the legislations says. He did not seek legal advice as he could not afford this. He thought that Citizens Advice directed him to Acas. He initially stated that it was not made clear to him when the three-month time limit would start. He was not sure if it ran from after he made contact with Acas or when he left work. He then clarified that he thought that he found about the time limit from Acas when he called them in August and that he understood that the clock would start running from when that telephone call was made.[42]He stated that Acas had tried to resolve the situation with the Respondent. For some time, he tried to reach out to the Respondent but he did not hear from them. Acas told him to try this method before making a claim to the Tribunal. He therefore contacted the Respondent by email and telephone.[43]I asked him if he was in good health at the time and he replied that he was in “working health” but he was under stress and was frustrated. Physically he was okay, although mentally he was not at his best. He has since been treated for high blood pressure. There was no contact with his GP regarding his mental health at the time and he has not been prescribed any medication or other treatment for mental health problems.[44]On the basis of the Claimant’s oral evidence, I find that the reason why the claim was made out of time was because the Claimant had not checked, or clarified, how the three-month time limit was calculated and, on the basis of the information that he had acquired, had misunderstood how it was calculated. He advances no other reason for missing the three-month time limit for submitting his claim with the Tribunal.[45]The Claimant’s oral evidence regarding what was said when he spoke to the Citizens Advice and Acas and how he came to misunderstand the time limit was vague. I am therefore not satisfied, on the evidence before me, that his misunderstanding of the time limit arose from being given the wrong advice or information by any third party. The Relevant Law -Time Limit for bringing the claim[46]The time limiting for bringing a claim under the WTR is governed by regulation 30(2) of the WTR, the relevant excerpt from which reads as follows: 30…(2) [Subject to [regulation 30B], an employment tribunal] shall not consider a complaint under this regulation unless it is presented–(a) before the end of the period of three months (or, in a case to which regulation 38(2) applies, six months) beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period or leave extending over more than one day, the date on which it should have been permitted to begin) or, as the case may be, the payment should have been made;(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three or, as the case may be, six months.[47]Further guidance is given in caselaw as to how the “not reasonably practicable” test should be applied in individual cases.[48]The term, “not reasonably practicable” should be given a “liberal construction in favour of the employee”[Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53, CA]. What is reasonably practicable is a question of fact and thus a matter for the Tribunal to decide. The onus of proving it was not reasonably practicable to lodge a claim in time rests on the claimant. There is “a duty upon him to show precisely why it was that he did not present his complaint” [Porter v Bandridge Ltd 1978 ICR 943, CA].[49]If a claimant fails to show that it was not reasonably practicable to present the claim in time, the Tribunal should find that it was reasonably practicable to do so [Sterling v United Learning Trust EAT 0439/14]. ‘Reasonably practicable’ does not mean reasonable, and does not mean physically possible, but means something like ‘reasonably feasible’ [Palmer and anor v Southend-on-Sea Borough Council 1984 ICR 372, CA]. In Asda Stores Ltd v Kauser EAT 0165/07 Lady Smith stated that “the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done”.[50]Where the claimant is generally aware of the right to make a claim, ignorance of the time limit on its own will not usually be sufficient reason for the delay. If a claimant is aware of their right to complain, they are under an obligation to seek information and advice about how to enforce that right. Failure to do so will usually lead the Tribunal to reject the claim. As per Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53, CA, in reaching its decision, the Tribunal is required to establish what opportunities the Claimant had to find out about his rights and whether he took those opportunities? If not, why not? Was he misled or deceived?[51]The correct test is not whether the claimant knew of their rights but whether they ought to have known of them [Porter v Bandridge Ltd 1978 ICR 943, CA]. In the case of Avon County Council v Haywood-Hicks 1978 ICR 646, EAT, the Employment Appeal Tribunal found that the claimant in that case, who did not find out about the possibility of bringing a claim until he read an article in a newspaper, ought to have investigated his rights within the time limit and claimed in time. My Conclusions - Time Limit for Bringing the Claim[52]The Claimant started to consider whether he had any right to holiday pay around a week after he finished work. He began to undertook research online regarding his potential rights. He contacted Citizens Advice who suggested he contact Acas. He contacted Acas more than two months before the expiry of the three month time limit.[53]The Claimant therefore had some awareness of the general right to holiday pay in the week after his work ended when he looked at his payslips and began to give consideration as to whether he should have received payment in lieu of holiday pay. At that stage he had the opportunity to check the time limit for making a claim, such information being readily available online from a variety of sources such as the Citizens Advice website. Equally, he had the opportunity to check this information when he spoke to the Citizens Advice on the telephone. Further, even if the discussions with Acas left him confused or unclear as to the next steps to take and the relevant time limits, he had ample time after that to establish what the actual position was.[54]The Claimant was not suffering from any impairment or mental health problems preventing him from making such enquiries during the period in question. He could easily have checked or clarified the time limits at the same time as undertaking the steps that he did take.[55]There is no evidence before me to show that he was misled by Acas or given the wrong information about time limits. On the basis of the Claimant’s evidence, on the balance of probabilities, I find that he did not apply his mind fully to the issue of time limits, misunderstood the situation, that he did have adequate opportunity in the two months after he first made contact with Acas to clarify the position, but he did not do so.[56]Taking in to account all of the above factors, I find that it was reasonably practicable for the Claimant to lodge his claim within the three month time limit. As he did not do so this Tribunal has no jurisdiction to determine his claim. Employment Status - The Relevant Law[57]The Claimant is only entitled to pay in lieu of annual leave under the provisions of The Working Time Regulations 1998 (“the WTR”) if he can show that he was an employee of the Respondent or a “worker”.[58]For this purpose, the relevant sections of the WTR are as follows: 2.-Interpretation ……. “worker” means an individual who has entered into or works under (or, where the employment has ceased, worked under)–(a) a contract of employment; or(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly; ‘Agency workers not otherwise “workers” 36.—(1) This regulation applies in any case where an individual (“the agency worker”)— (a)is supplied by a person (“the agent”) to do work for another (“the principal”) under a contract or other arrangements made between the agent and the principal; but (b)is not, as respects that work, a worker, because of the absence of a worker’s contract between the individual and the agent or the principal; and(c) is not a party to a contract under which he undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual. (2) In a case where this regulation applies, the other provisions of these Regulations shall have effect as if there were a worker’s contract for the doing of the work by the agency worker made between the agency worker and— (a)whichever of the agent and the principal is responsible for paying the agency worker in respect of the work; or (b)if neither the agent nor the principal is so responsible, whichever of them pays the agency worker in respect of the work, and as if that person were the agency worker’s employer.’[59]There have been various tests established over time to guide the Tribunal in deciding whether a claimant is an employee, “worker” or an independent contractor/self-employed.[60]The starting point when deciding this is the relevant statutory provisions followed by a fact sensitive assessment applying the relevant principles established by caselaw.[61]The Tribunal must not only focus on what is in any written contract or agreement but also look at the reality of the situation and how the parties conduct themselves. Consideration should be given as to whether the written contract represents the true intentions or expectations of the parties. [Autoclenz Ltd v Belcher [2011] UKSC 41 and Consistent Group Ltd v Kalwak and Ors 2007 IRLR 560, EAT][62]The tax regime that an individual is subject to is one factor that the Tribunal must consider in determining employment status, but is only one of many factors that must be taken in to account.[63]In Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229, the Court of Appeal has confirmed that an ‘irreducible minimum of obligation’ is not a prerequisite of “worker” status. Under the statutory definition, it is sufficient that the contract includes an obligation on the individual to perform work or services personally, and that the other party is not a client or customer. My Conclusions - Employment status and “worker” status[64]In case I am wrong about the time limit issue, I have gone on to consider whether the Claimant is a “worker” for the purposes of the WTR. I have not given separate consideration as to whether the Claimant is an employee because, for the purposes of entitlement to pay in lieu of annual leave under the WTR, the outcome would be the same whether he was an employee or a “worker”.[65]The Claimant cannot bring himself within the definition of a “worker” that is found within regulation 2 of the WTR. This is because the Claimant was not carrying out the work concerned for the other party to the contract, that is the Respondent. He was working for Spitfire who was not a party to the contract of the 20 March 2019. He therefore cannot bring himself within regulation 2(b).[66]However, specific provisions are made under regulation 36 of the WTR for individuals whose work is facilitated via an agency. The Claimant obtained the work through Tradeline, a recruitment agency. Once he had secured that work, he was then paid by the Respondent throughout the time that he was undertaking that work.[67]In order to come within regulation 36, the Claimant must not be a “party to a contract under which he undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.” In other words, he must not have been providing his services as a labourer in business on his own account.[68]The agreement between the Claimant and Respondent of the 20 March 2019 is called a “Contract for Services”. The Claimant is referred to throughout as “the Sub-Contractor”. There is reference at various points in the agreement to it being agreed that the Claimant is self-employed and running his own business. At 1.7 it states that the parties agree that the relationship is not one of employer and employee.[69]The agreement states, at 1.10, that there is no obligation for the Claimant to provide his services personally so, inter alia, he is not a worker for the purposes of the WTR. At 1.11 it states that the Sub-Contractor confirms his understanding that he is not entitled, amongst other things, to holiday pay. The agreement provides for substitution. At 9.1, there is provision for the agreement to be terminated by one week’s notice from either party. At 9.4 there is provision for the Respondent to terminate the agreement in certain circumstances, without notice.[70]Whilst there is reference throughout the document to the parties agreeing that the Claimant is a self-employed subcontractor and so does not have certain statutory rights, I am required to look at the reality of the situation and whether those statements actually reflect the true intentions and expectations of the parties.[71]The Claimant’s oral evidence, which was not challenged, is that he was not registered as self-employed when he was working on the Spitfire site. He thought he was an employee. He had not set up his own business to undertake that work. He has never set up his own business as a labourer. He was not providing labouring work for anyone else at the time: he was working on the Hadley Wood site full time and that was all. He did not hold insurance. He did not provide his own materials. Whilst he was on site, his hours of work were controlled by Spitfire. He had little control over the hours that he worked and had to seek permission from the site manager to vary those hours. He was told when his lunch break was. He was told what jobs to do on a day to day basis. He was paid by the hour, not for completing a particular task or project. He did not invoice the Respondent; he just completed a weekly time sheet. He was provided with payslips each week and tax and national insurance was deducted on a PAYE basis. He has never provided a substitute. All of these factors point against him being in business on his own account.[72]There are a number of respects in which the agreement does not reflect the reality of the situation: i. At 2.6 there is a requirement that the Claimant provide third party insurance cover which was to be presented to the Respondent before any work was undertaken under the contract. The Claimant never held any such insurance and he was not asked to provide a certificate of insurance to the Respondent at any point. ii. At 2.10 there is a requirement that the subcontractor provide all his own tools and any equipment necessary to carry out the assignment at his own expense. However, all tools, equipment and materials were provided on site by Spitfire. Indeed, the Claimant was even provided with personal protection equipment and clothing by Spitfire. iii. There is reference in the agreement at various points to the execution of “Works Orders”. The Claimant has never been provided with “Works Orders” and it was clear from his oral evidence that he did not know what one was.[73]Having considered the Claimant’s oral evidence, as well as the terms of the written agreement, I do not consider that the written agreement truly reflects the reality of the Claimant’s status. The overall impression that I formed is that the clauses referring to substitution, works orders, third party insurance and provision of tools and equipment were included in the agreement to give the impression that the Claimant was operating on a self-employed basis, when, in reality his status was more akin to that of a “worker”.[74]The Claimant had no economic interest in the arrangements other than being paid for the hours that he worked. He could not alter the arrangements in any way in order to increase the amount he was paid on a day to day basis or to generate a profit. Whilst there is a substitution clause, I do not consider that this reflects the reality of what was agreed between the parties, that is that the Claimant would turn up on site every day, undertake the work that he was told to do and then inform the Respondent of the hours that he had worked. I do not consider that the substitution clause, or the right to refuse to take work, were in the minds of the parties when the agreement was entered into.[75]All of the above factors when looked at in the round suggest that the Claimant was not running a business on his own account when undertaking this work. That being so the Claimant came within the requirements of regulation 36 of the WTR and so had entitlement to holiday pay, or pay in lieu of holiday pay, under the WTR. As per regulation 36(2)(a) responsibility for payment for annual leave fell upon the Respondent as the Respondent was responsible for paying the Claimant for the work concerned. However, for the avoidance of doubt, as I have found that the claim was out of time, this Tribunal has no jurisdiction to make a Judgment in favour of the Claimant in this respect. RECONSIDERATION
Findings of Fact
[1]The factual background to this case can be found the Tribunal’s Judgment and full written Reasons which have been provided to the parties separately. I therefore do not repeat the factual history here. The Application for Reconsideration[2]In an email dated 25 May 2022, the Claimant sought reconsideration of the Judgment of the 9 May 2022.[3]As per rule 71 of the Employment Tribunals Rules of Procedure (“ET Rules of Procedure”) an application for reconsideration is to be made in writing within 14 days of when the original decision was sent to the parties. This time limit may be varied by the Tribunal under rule 5. There is no requirement that the party seeking reconsideration demonstrate that it was ‘not reasonably practicable’ to make the application for reconsideration in time.[4]The Judgment and Reasons were sent to the parties on 10 May 2022 and the application for reconsideration was made on 25 May. The application for reconsideration was therefore made one day late.[5]The Claimant is unrepresented and has been unrepresented throughout these proceedings. The application for reconsideration was made only one day late. In the circumstances, and as a delay of one day does not cause any detriment or disadvantage to the Respondent, I consider that it is in accordance with the overriding objective and proportionate to extend time by one day to the 25 May 2021.[6]The Claimant’s grounds for reconsideration can be summarised as follows: i. There are serious mitigating circumstances. He was not in a position to bring the claim on time due to being the sole carer for a sick and elderly relative, who relied on him for his daily care. This took its toll on him, physically and mentally, having adverse effects on his health including his blood pressure which became difficult to manage. Such stresses prevented him from making the claim within the designated time, as he was not in the correct mental state to make the claim. As a result, he was a couple of months out of time bringing the claim. This was a relatively short time frame which did not adversely affect the Respondent. ii. His case had very high prospects of success and his claim succeeded in principle: he was found to be a worker. iii. He is a lay person and has no legal background or prior knowledge of the Employment Tribunal process. He struggled with filing in the form, getting the Respondent to respond to his claims, and presenting his evidence, all without legal representation. He could not afford legal representation. iv. It is in the interests of justice. There is no prejudice to the Respondent whose response was also out of time. The Respondent was successful in obtaining a set aside of that judgment in his favour. The evidence was not affected by the delay and he acted promptly in commencing conciliation; hence the Respondent was aware of the claim very early on. The Respondent also failed to co-operate with the ACAS process and ignored all attempts by ACAS to mediate the matter. The Respondent also acted unreasonably by not responding to the initial claim, which caused further delays. It would be unjust to treat the Claimant less favourably than the Respondent, whose response was out of time but still accepted.[7]The Respondent responded to the application for reconsideration on the 25 May 2022. It submitted that the grounds set out in paragraph 1 of the Claimant’s application were not put as reasons at the hearing, despite the Judge taking great care to ensure the Claimant had explained fully the reasons for the late claim.
The Law
[8]The rules relating to reconsideration applications are set out at 70 to 73 of the ET Rules of Procedure. As per rule 70, the Tribunal may reconsider any judgment where it is in the interests of justice to do so. On reconsideration, the original decision may be confirmed, varied or revoked. If it is revoked it may be taken again. If there is no reasonable prospect of the original decision being varied or revoked the application is to be refused.[9]There is an underlying public interest in the finality of litigation. Reconsideration is therefore not a means by which a disappointed party to litigation can get the opportunity to re-argue their case because they do not agree with the original decision. In Flint v Eastern Electricity Board [1975] ICR 395 (High Court, Queen’s Bench Division) it states at 404: “But over and above all that (the interests of the parties), the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry.”[10]In Newcastle City Council v Marsden [2010] ICR 743 (EAT) it was said, at paragraph 17: “In particular, the weight attached in many of the previous cases to the importance of finality in litigation—or, as Phillips J put it in Flint (at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bite of the cherry—seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final (subject, of course, to appeal).”[11]In Ministry of Justice v Burton [2016] ICR 1128 the Court of Appeal said, at paragraph 21: “… the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily…”[12]In Outasight VB Ltd v Brown 2015 ICR D11, EAT, Her Honour Judge Eady QC stated that the wording ‘necessary in the interests of justice’ in rule 70 gives Employment Tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”. My Conclusions[13]Dealing first with the set aside of the default judgment, this was set aside on the basis that the Respondent had not been sent the original claim form and did not receive the default judgment until the 10 August 2021. The Respondent was therefore unaware of proceedings until the 10 August 2021. The delay in filing the response was therefore as a consequence of an administrative error rather than delay on the part of the Respondent. The Respondent was given an extension of time to apply for reconsideration, as has the Claimant in this application.[14]At paragraph 44 of my Reasons I said: “On the basis of the Claimant’s oral evidence, I find that the reason why the claim was made out of time was because the Claimant had not checked, or clarified, how the three-month time limit was calculated and, on the basis of the information that he had acquired, had misunderstood how it was calculated. He advances no other reason for missing the three-month time limit for submitting his claim with the Tribunal.”[15]At paragraph 54 I found that: “The Claimant was not suffering from any impairment or mental health problems preventing him from making such enquiries during the period in question. He could easily have checked or clarified the time limits at the same time as undertaking the steps that he did take.”[16]At paragraph 55 I found that: “There is no evidence before me to show that he was misled by Acas or given the wrong information about time limits. On the basis of the Claimant’s evidence, on the balance of probabilities, I find that he did not apply his mind fully to the issue of time limits, misunderstood the situation, that he did have adequate opportunity in the two months after he first made contact with Acas to clarify the position, but he did not do so.”[17]The Claimant submits that his health and caring responsibilities resulted in his claim being made out of time. Whilst the Claimant had produced only a brief witness statement prior to the hearing, at the hearing he was asked a series of questions by me to establish the reasons for delay in lodging the claim. Issues relating to his health were fully explored, as were his circumstances more generally. He said that he had not visited his GP nor had he been prescribed any medication prior to the submission of the claim. No medical evidence was relied upon. When I asked him if he was in good health at the material time, he replied that he was in “working health” but he was under stress and was frustrated. He said that physically he was okay, although mentally he was not at his best. He said that he had since been treated by his GP for high blood pressure.[18]The Claimant’s evidence as to his health and his consequent ability to deal with the claim at the material time was therefore fully taken in to account when findings of fact were made and conclusions reached as to whether it was reasonably practicable to lodge the claim in time.[19]At the hearing, the Claimant did not rely upon caring responsibilities as being the reason why he could not and did not lodge his claim within the three month time limit. His circumstances between the last day that he worked and the deadline for submitting his claim were explored during the hearing, as were the reasons why his claim was late. The Claimant now seeks to rely upon a further reason why his claim was late. He gives no explanation as to why he did not rely upon this reason previously.[20]It is not suggested by the Claimant that any new evidence has become available since the conclusion of the Tribunal hearing. Having reviewed the reasons for my Judgment and the documentary evidence that was before me at the date of the hearing, I consider that the Claimant’s application for reconsideration is an attempt to re-litigate a matter that has been finally determined. I am satisfied that he was given a proper opportunity to fully explain to the Tribunal why his claim was late.[21]Consequently, for those reasons, the Claimant’s application for reconsideration made under rules 70 and 71 of the ET Rules of Procedure is not well-founded and is refused. Acting in accordance with rule 72, I do not consider that the interests of justice require that the Judgment or its Reasons be varied or revoked. There is no reasonable prospect of such variation or revocation. The Judgment and its Reasons are confirmed.