Mrs O SwiecaClaimantUPE Engineering Limited RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge SmailMr P Swieca for claimantMs P Hall for respondentDate 13 January 2021
JUDGMENT
[1]The claimant’s application to amend the claim to add claims of discrimination is refused.
REASONS
[1]This claim had been consolidated with a series of claims the claimant brings against Unique Employment Services Limited. The claimant is arguing that she was employed by Unique Employment Services Limited but in respect of UPE Engineering Limited she claims she was both an agency worker and a contract worker under the Equality Act 2010. I have today de-consolidated the claims, the claim against UPE Engineering Limited will proceed separately from the case against Unique Employment Services Limited.[2]A claim was issued on 7 November 2017 against UPE Precision Engineering claiming compensation for failure to provide terms and conditions of work under the Agency Workers Regulations 2010. A case management hearing came before me on 19 April 2018. The claimant had been engaged by UPE between 3 May 2017 and 20 July 2017. It is accepted that her engagement came to an end on 20 July 2017. At the preliminary hearing on 19 April 2018, further to an email that arrived at the tribunal earlier that day, the claimant intimated a desire to add a claim of discrimination. The essence of the claim was that she had 1 of 4 been terminated on 20 July 2017 because she was pregnant. I did not deal with the application that day, it was envisaged that there would be a hearing on 13 July 2018 to determine the agency workers claim together with her application to amend. Because this claim became consolidated with a series of claims against Unique Employment Services Limited that did not happen.[3]Today I have been tasked with sorting out the seven claim forms that the claimant has brought. On 19 April 2018 I ordered that a witness statement be prepared on the claimant’s behalf in order to support her application to amend. It was clearly being made out of time and an extension of time would in effect be required. I also made it clear to the claimant’s husband, who in effect runs these claims, that he could if he so wished to take the alternative route of issuing fresh claims. He has issued fresh claims in respect of Unique Employment Services Limited, the recruitment agency he says employed the claimant directly but in respect of UPE Engineering Limited he has persisted with his intention to amend the claims.[4]A variety of versions of the desired amendment have been produced, he has wanted to make complaint about the fact that the claimant had to lift boxes of 25kg maximum while still employed; that there was a failure to perform a maternity related risk assessment and that pregnancy was the true reason for dismissal because the day before the termination the claimant showed the respondent’s managers Dean Lloyd and Sue Ephgrave a hospital note. On 17 July 2017 she had been taken to hospital owing to a significant amount of bleeding from the birth canal; the claimant had to spend two days in hospital.[5]All of those matters it seems to me were known by the claimant at the time she brought the original claim which focussed solely on a matter of agency workers’ rights. In argument today and by reference to an extensive skeleton argument prepared for today the claimant by her husband has made several references to having suffered sexual harassment by Dean Lloyd. There is no adequate or satisfactory particularisation of those allegations, they have been made in very general terms orally today and in the skeleton argument prepared for today. Again, if the claimant had been subject to sexual harassment that would have been known by her at the time of her termination on 20 July 2017.[6]The explanation for seeking the late amendment is that on 20 February 2018 the claimant along with her husband met a former colleague with whom the claimant used to work at UPE Engineering Limited. The colleague stated that UPE had employed a male called Simon for the same position as the claimant and the recruitment had been done within about a month of the claimant’s termination. The ostensible reason for terminating the engagement had been to cut costs. So submits the claimant’s husband, the claimant had reason to believe on the 20 February 2018 that cost was not the true reason for the termination of the engagement rather it must be something else. That something else being the fact that she was pregnant.[7]In the later part of February 2018 the claimant did write letters to the respondent asking what the reason was for the termination of the engagement. He says that 2 of 4 he did not get any answer to those letters and therefore on 19 April 2018 intimated a desire to amend the claim.[8]If the amendment were granted there is no doubt that it would change significantly the character of this case. A discrete matter on the rights of agency workers to terms and conditions would transform into a significant claim in terms of time and compensation sought for a variety of allegations of discrimination relating to pregnancy, maternity and sex. These are new causes of action, not relabelling.[9]The first difficulty it seems to me with the application is that the extent of the subject matter that the claimant wishes to bring before the tribunal includes extensive matters that she knew about on the 20 July 2017. There is no suggestion that she did not know of her rights to bring claims to the employment tribunal, on the contrary she brought a claim for agency workers’ rights.[10]I also reject the suggestion that the claimant learned information in February 2018 which necessarily pointed to the fact that her termination was not for the reasons suggested. First of all, there was a gap between her termination and the recruitment of “Simon”. The claimant’s husband, who prepared a witness statement in support of this application was cross examined by Mrs Hall. He was asked to identify the friend who had passed on this information on 20 February 2018. He was unable to name that person. He claimed he did not know the name. He was relying therefore on un-attributable hearsay material.[11]Mrs Ephgrave has served a statement on this matter on behalf of the Respondent. She is its Financial Director. At paragraph 5 she says: “Mrs Swieca alleges that she was directly replaced by a worker called Simon. That must refer to Simon Byass. He started with UPE on 11 September 2017. He was employed directly by UPE under a contract of employment. He was never engaged through UES or any other agency although he does undertake some of the work that was previously done by Mrs Swieca. He has a wider range of duties and was not a direct replacement for her role.”[12]Accordingly, Mr Byass was appointed one month and three weeks after the claimant’s termination. He was not an agency worker; it seems he was directly employed. It is not obvious then that the claimant will establish a factual scenario whereby there will be a prima facie case that she was replaced by reason of her pregnancy. A gap of seven weeks between engagements could be for a variety of matters.[13]As stated, the claimant seeks to place reliance on the behaviour of Dean Lloyd. It has been put in forcible terms orally today that Mr Lloyd harassed the claimant even though there are no adequate particulars of that in any document. I am told and I accept that Mr Lloyd left the employment of the respondent over a year ago. There would be evidential prejudice to the respondent were I to allow this amendment. If she was harassed by Mr Lloyd, she knew that in July 2017.[14]If the claimant suspected that she was dismissed because of pregnancy she had material to that effect on 20 July 2017. She had shown the respondent a hospital 3 of 4 note the day before. If there was likely to have been a real connection there was material there. It seems to me the conversation relied upon on 20 February 2018 is not sufficiently cogent strongly to point to a prima facie case that this termination and the subsequent hiring of Mr Byass was connected with pregnancy. There was also a considerable delay between the 20 February 2018 and 19 April 2018 when the application was intimated.[15]I have considered whether to limit permission to amend to the argument that the termination was in connection with the pregnancy. That would avoid difficulties in claiming harassment against Mr Lloyd, difficulties in raising matters of health and safety in terms of the weights carried by a pregnant woman and all those matters that would have been known about on 20 July 2017. However, it is my conclusion that there is insufficient cogency in the evidence relating to the unattributable comments said to be made on 20 February 2018. It does not amount to as it were a smoking gun strongly pointing to a discriminatory decision.[16]In my judgment there is not a good explanation for the delay of 9 months in making this claim, as I say there was plenty of material the claimant could have relied upon if she actually believed she was the subject of pregnancy discrimination. There was in any event too long a delay between 20 February 2018 and 19 April 2018 when the amendment was first intimated. In terms of limitation period it would not in my judgment be just and equitable to extend time for these reasons.[17]The primary period of limitation is 3 months, expiring on 19 October 2017 from the date of termination of the engagement. Under the Selkent principles [1996] ICR 836, EAT, I have to take into account the fact that these claims are new claims in substance and that they are brought out-of-time. I take into account whether it would be just and equitable to extend time. There is no good explanation for the further 6 months delay in respect of those matters known about in July 2017. The unattributable comments said to be discovered in February 2018 relating to a 7 week gap in the recruitment of Mr Byass do not generate a strong inference of discrimination and do not explain the further 2 month delay between February and April 2018. The balance of hardship falls in favour of the respondent in my judgment because of the genuine evidential prejudice involved in one of the key managers no longer working for the respondent.[18]In all the circumstances the application to amend fails.[19]That claim was in my view unsustainable. That is for the following reasons.[20]The claim was based on a failure by the respondent to comply with a request made by the claimant under regulation 16(3) of the 2010 Regulations. That request was for a statement of the claimant’s terms and conditions. The request which was relied on in that regard was made in the letter dated 5 November 2017 at page 114, which was addressed to the respondent and was in these terms: “As per the regulation 16 paragraph 3 of the Agency Workers Regulations 2010 Act, I hereby request to provide me with the following information: - Basic pay per annum - Annual leave entitlement - Notice period - Benefits and rewards - Job description Please note that failure to provide the aforementioned information within 7 working days shall be treated as a deliberate action and subject to regulation 16 paragraph 9 of the Agency Workers Regulations 2010 Act. All information regarding this matter shall be made in writing or else null and void.”[21]Regulation 5(2)(a) of the 2010 Regulations needs to be read with regulation 5(1). Together, they provide: “(1) Subject to regulation 7, an agency worker(a) (A) shall be entitled to the same basic working and employment conditions as A would be entitled to for doing the same job had A been recruited by the hirer— (a) other than by using the services of a temporary work agency; and(b) at the time the qualifying period commenced. (2) For the purposes of paragraph (1), the basic working and employment conditions are — (a) where A would have been recruited as an employee, the relevant terms and conditions that are ordinarily included in the contracts of employees of the hirer”.[22]Regulation 16 of the 2010 Regulations provides: “(1) An agency worker who considers that the hirer or a temporary work agency may have treated that agency worker in a manner which infringes a right conferred by regulation 5, may make a written request to the temporary work agency for a written statement containing information relating to the treatment in question. (2) A temporary work agency that receives such a request from an agency worker shall, within 28 days of receiving it, provide the agency worker with a written statement setting out—(a) relevant information relating to the basic working and employment conditions of the workers of the hirer,(b) the factors the temporary work agency considered when determining the basic working and employment conditions which applied to the agency worker at the time when the breach of regulation 5 is alleged to have taken place, and(c) where the temporary work agency seeks to rely on regulation 5(3), relevant information which— (i) explains the basis on which it is considered that an individual is a comparable employee, and (ii) describes the relevant terms and conditions, which apply to that employee. (3) If an agency worker has made a request under paragraph (1) and has not been provided with such a statement within 30 days of making that request, the agency worker may make a written request to the hirer for a written statement containing information relating to the relevant basic working and employment conditions of the workers of the hirer. ... (7) Paragraphs (1) and (3) apply only to an agency worker who at the time that worker makes such a request is entitled to the right conferred by regulation 5.”[23]Mr Swieca accepted that at no time had the claimant made a request to Unique in writing, seeking the information referred to in regulation 16(1) of the 2010 Regulations. Accordingly, if only for that reason, given the opening words of regulation 16(3), there was no breach of regulation 16(3) by the respondent.[24]In addition, the claimant’s purported request under regulation 16(3) was made long after the claimant’s engagement with the respondent had ended. Thus, given regulation 16(7), for that reason too, no valid request had been made by the claimant under regulation 16(3).[25]Further, and finally, in my view the right to be given information under regulation 16(3) was not to a right to be given a statement complying with section 1 of the ERA 1996, not least because such a statement needs to be given only in relation to employment under a contract of employment, and the rights conferred by regulation 5(2)(a) of the 2010 Regulations are only to be treated comparably to a relevant employee of the hirer in question, in this case the respondent. In addition, and in any event, the right to a statement complying with section 1 of the ERA 1996 arises under that section, i.e. it is a statutory right, and not (as required by regulation 5(2)(a)) a contractual right arising under the terms of an employee’s contract of employment: regulation 5(2)(a) confers right only to the benefit of “the relevant terms and conditions that are ordinarily included in the contracts of employees of the hirer”.[26]For all of the above reasons, in my judgment the claimant’s claim of a breach of regulation 2010 was not well-founded and had to be dismissed.