Mr V Mihailescu v Better Lives (UK) Ltd T/a Bluebird Care Ipswich: 3401114/2016

EMPLOYMENT TRIBUNALS

Case No 3401114/2016

Between

Mr V MihailescuClaimant

Better Lives (UK) Ltd T/A Bluebird Care IpswichRespondent

Before

Employment Judge Laidler

In person for claimant

Mr Soutter-Green (instructed by Counsel) for respondent

Date 20 March 2019

JUDGMENT

[1]The Claimant was an employee working under a contract of employment.

[2]The Tribunal therefore has jurisdiction to determine complaints requiring employee status.

[3]In the alternative the Tribunal would have found the Claimant to be a ‘worker’ and entitled to bring claims under the Employment Rights Act 1996 requiring that status.

[4]A Preliminary Hearing will be listed to clarify the claims and list the full merits hearing.

REASONS

[1]The proceedings in this matter were issued on the 24th October 2016 in which the Claimant brought claims for notice pay, holiday pay, arrears of pay and other payments. In it’s response received on the 25th November 2016 the Respondent denied that the Claimant was an employee or a worker of the Respondent asserting that he was self employed. It therefore stated that the Tribunal did not have jurisdiction to consider any of the claims being brought by the Claimant.

[2]A Preliminary Hearing was listed to determine the Claimant’s status, clarify the claims and determine whether the Tribunal had jurisdiction to hear any or all of the claims. That hearing was listed for the 16th February 2017.

[3]On that day the Claimant failed to attend and applied for adjournment on medical grounds. In accordance with Orders made on that day in his absence the Claimant submitted medical evidence that he had been hospitalised and undergoing tests and had been unable to attend. This hearing represented the re-listed hearing.

[4]For this hearing the Tribunal was presented with a bundle of documents running to 428 pages. Evidence was heard from the Claimant and from Atul Dhir, Director of the Respondent. Those witnesses had prepared typewritten witness statements which the Tribunal read and upon which they were then asked further questions. In view of the amount of evidence and the time allocation it was only possible for the Tribunal to hear the evidence on the issue of the Claimant’s status. The claims were not further clarified and the matter needed to be reserved.

[5]From the evidence heard the Tribunal finds the following facts.

THE FACTS

[6]There is no dispute that the Claimant entered into a contract agreement with the Respondent which is signed and dated the 30th April 2015. The Claimant is at all times described as an employee and Mr Dhir in oral evidence accepted that this amounted to a contract of employment. Indeed the clauses in the document are consistent with a contract of employment.

[7]In recording the start date the contract states at Clause 5 that no period of employment with a previous employer counts to a period of continuous employment with the Respondent. The employee warrants he is entitled to work in the UK.

[8]The contract contained a probationary period of 3 months and during that period either the employee or the Respondent could terminate on one weeks notice.

[9]In Clause 7 it was made clear that in view of the role of Domiciliary Care Worker the location of work could vary. As such the employee had no fixed place of work but would be expected to perform duties “at any location that is within reasonable travelling distance of the employee’s home as determined by Bluebird Care”.

[10]The Claimant was to be paid the amount set out in the Respondent’s “Carer's Schedule” and reserved the right to the employer to deduct any monies due to it from the salary to be paid. There is also a clause with regards to repayment of training costs.

[11]Clause 10 dealt with hours of work and provided as follows:- “This is a ‘zero hours’ contract”. The employee will work such hours and at such times as are agreed between the employee and Bluebird Care. The company is not under an obligation to offer the employee any work and has specifically reserved the right to reduce the employees working hours whenever necessary. There is emphatically no guarantee of work or of minimum hours under this contract”.

[12]The contract then contained clauses about holiday pay, sickness and absence from work, termination and the notice period. In addition there is a post termination restrictions clause stating that the employee for a period of 6 months post termination, shall not:- “a seek to contact or influence in anyway existing employees of the company or to solicit them to change their employment or for any other reason. b contact any existing customer or their family, friends or other stakeholders for any reason. c set up as a director, partner or owner of a competitor organisation. d accept a post involved in the delivery of any form of care service from an existing customer of the company even if the customer should approach the employee.”

[13]Not only is the term employee used throughout, but there are numerous references to “terms of employment” for example Clause 28 ‘Changes to Terms of Employment’ and Clause 30 ‘The Terms’.

[14]The Claimant was required to undertake a CRB check and the fee in relation to that and for provision of his uniform was repaid to the employer through the payroll.

[15]It is the evidence of Mr Dhir that “a matter of days of the Claimant commencing with the Respondent he approached me and requested to go self employed” (Paragraph 4 of his witness statement). He asserts that the Claimant believed it would be more profitable for him and provide him with greater flexibility then he would enjoy under a zero hours’ contract. Mr Dhir states that thereafter the Claimant was paid gross with no deductions for Income Tax and National Insurance. He states that he explained to the Claimant he would not be entitled to paid holiday. The Claimant he asserts was still adamant he wished to go self employed. It is the Respondents case, clarified at this hearing that as a result the Claimant was neither an employee nor a worker.

[16]The Claimant was emphatic in his denial that there was any such conversation. His evidence was that he had no intention of becoming self employed. His wife already worked for the Respondent and he had found out from her what it meant to be self employed. The Claimant who is from Romania had worked as a manager in his own country and had experience of what being self employed meant. The Judge specifically asked the Claimant what his qualifications were from his home country and accepts that he had graduated in 1982 specialising in accountancy. He understood that employment law rights were similar in Romania to in the United Kingdom. He had therefore understood that being self employed would not give him the usual employee protections.

[17]The Tribunal accepts the evidence of the Claimant. It was entirely convincing that he understood that being self employed would not give him the relevant employee status that he required. There is no documentation produced by the Respondent of this conversation and no documentation produced to evidence any change to the Claimant’s contract of employment. In evidence Mr Dhir accepted that. In answer to a question from the Judge he stated that when the Claimant became self employed the office staff should have sent him a self employed contract to sign but it looked as if they had not done so.

[18]The Tribunal heard no evidence about the appropriate Appendix 1 Pay Schedule to the Contract and makes no findings on that for the purposes of this decision.

[19]In the Tribunal bundle were seen documents headed “Visits for Mr Vasilica Mihailescu from Monday 20th April 2015 to Sunday 25th December 2016. The header to this document states it was printed by the Respondent on 13th December 2016 and it therefore appears it was printed for the purposes of these proceedings. It shows each visit the Claimant was allocated and the time of each visit. From this it can be seen that the Claimant worked virtually continuously from the time he commenced working for the Respondent. It was put to him in cross examination that he had had 3 days off and the Claimant confirmed that had been for his wife’s Birthday. It was not suggested to him by reference to this document that his work with the Respondent had been anything other than continuous.

[20]In his questions to the Claimant Counsel for the Respondent relied upon various clauses in the contract as not having been complied with in the Claimants case and that therefore in his submission that amounted to evidence that the Claimant was not an employee.

[21]The first clause relied upon was that of the Probationary Period. The Claimant was clear however that he did have weekly meetings with the Care Coordinator. There is no documentation about the probation period.

[22]Counsel then relied on Clause 7, the place of work, stating that the Claimant was entitled to refuse work if it was not within a reasonable travelling distance of his home. The fact is however from the evidence as stated above that the Claimant did not refuse work on that basis.

[23]Counsel also relied upon the fact that the Claimant was not subject to the Disciplinary Procedure referred to in the Contract. As the Judge pointed out that might be because there were no disciplinary matters. Counsel then sought to suggest that the Respondent had in fact received complaints about the Claimant’s work. There was no evidence before this Tribunal about those. There was reference to the Claimant’s use of language and chain smoking, but the Tribunal was not directed to any specific complaints nor how the Respondent had chosen to deal with these.

[24]It was then put to the Claimant that he did not receive paid holiday. That did not appear to be determinative of the issues bearing in mind that that is one of the claims to this Tribunal that he did not receive adequate holiday pay.

[25]The Claimant was then taken in the bundle to page 364 onwards, which were copies of documents headed “Gross Pay Advice”. These show the gross pay and then list each of the Clients that the Claimant attended and was paid for in the relevant period. They are shown at the top as having been printed on the 13th December 2016 which goes to confirm the Claimant’s evidence that these were only produced to him by the Respondent’s Solicitors in December 2016 and that he did not receive them at the time.

[26]It was further suggested to the Claimant that his wife had been sent in his place on occasions. There was no evidence of this having occurred and the Claimant was adamant that that had never happened. The Tribunal accepts that evidence in the absence of anything to contradict it. As already stated the Claimant’s wife was a carer with the Respondent and it may have been that she chose to undertake certain work rather than the Claimant, but that is different to saying that the Claimant having accepted an assignment was then able to send his wife to it.

[27]The Tribunal accepts the Claimant’s evidence that he was sent a schedule of his work for the following week. This was prepared by the Care Coordinator. Mr Dhir did not deal with this on a daily basis and the Claimant is therefore in a better position to give evidence as to how the work was allocated to him than Mr Dhir.

[28]The Tribunal was also taken to correspondence passing between the Citizen’s Advice Bureau and the Respondent once the Claimant sought advice. In response to the first letter Mr Dhir replied on the 29th July 2016 that the Claimant “works for us through an Agency, was paid by the Agency so the question of underpay does not arise”. He also stated the Claimant was working as self employed “and has the right to accept and refuse work which he has been doing and he understands that being self employed the holiday pay does not arise”. He stated the Claimant was responsible for his own Income Tax and National Insurance.

[29]The Citizen’s Advice Bureau responded stating that the Claimant was not paid by an Agency, but by the Respondent and was not self employed but employed by them. They made reference to the contract agreement. In response to that letter the Respondents stated they were seeking advice. Mr Dhir’s position in cross examination was that he did not check their records before writing his letter and that they do have some Agency workers. SUBMISSIONS

[30]For the Respondent, it was argued that the Claimant was self employed and that he was neither an employee nor a worker.

[31]The main consideration must be mutuality of obligation namely for the employer to provide and the employee to accept work. Without that there can be no employment relationship. It was submitted from the evidence that the Claimant says he entered into an employment contract which accurately reflected the true position. The Respondent says however that it did not as a few days later the Claimant asked to become self employed. The evidence does not support that the Claimant was either an employee or a worker.

[32]The clauses within the contract were not enforced and did not apply to the Claimant.

[33]There was no probationary period as set out in Clause 6. Although the Claimant says he had weekly meetings these were not evidence of probation.

[34]With regard to mutuality of obligation the contract is clear that the employee must undertake work at different locations specified by the employer within a reasonable distance of his home. The Claimant was free to turn down work. He was not obliged to accept work. It was his choice. When the Claimant did not want to do the waking nights anymore he asked to change and the employer did not tell him he had no choice but offered the Claimant different work. In the letter at page 427 the Respondent had offered work to the Claimant to work with his wife and again the Claimant was entitled to and did turn this down.

[35]The Claimant was paid gross. That is not disputed. No Income Tax and National Insurance were deducted, and no pension deductions. The Claimant was responsible for making his own Income Tax and National Insurance payments. The proposition put forward by the Claimant that for over a year he did not realise he was being paid as self employed is implausible.

[36]At no point was the Claimant dismissed it was simply a matter of him turning down work as he was self employed.

[37]The notice provisions were not applicable to him. The post termination restrictions were not enforced because they did not apply.

[38]With regard to the suggestion that the Claimant was alternatively a worker the Respondent’s evidence is that the Claimant did not have to perform the work personally. The evidence of Mr Dhir was that the Claimant’s wife covered for him on occasions. He went further, and said that as long as someone had been checked by the Respondent and known to them they could undertake the work.

[39]It is a balancing act and a difficult one that the Tribunal has to undertake. It was submitted the evidence of the Claimant was not clear. It was confusing as he did not request pay slips and was aware that others in the Respondent were self employed. That adds credence to the Respondent’s position as Mr Dhir recalled a conversation with the Claimant and his wife about changing to self employed status. She had been self employed and still works for the Respondent.

[40]Counsel for the Respondent did accept that the initial contract document is a contract of employment. Without mutuality of obligation however the relationship cannot be one of employment. The Judge reminded Counsel that his client and he had accepted that the original contractual document was that of a contract of employment. He acknowledged it was difficult to go behind that evidence as that had been accepted by Mr Dhir and it was therefore up to the Tribunal to determine what the relationship was.

[41]For the Claimant it was submitted that from the very beginning he wanted to be an employed person and always behaved as such. He had no conversation with the manager and signed no documents changing his status from employee to self employed. No one told him that he was considered anything other than an employee. He never worked for any other third party agency.

[42]In his opinion it is wrong to suggest that his wife or any other person did or could have replaced him on his duties. If it is suggested that occurred, when did it occur? His evidence is clear that no one replaced him either his wife or anyone else.

[43]He did not miss work at all. No one called him to ask him if he agreed to do the jobs but he was issued with a programme to follow for the next week.

[44]There were no complaints against him.

[45]When he had been offered work with his wife he had already “fired” by the Respondent and was no longer working for them.

[46]He did not get a copy of his contract until December 2016 when given access in these proceedings.

RELEVANT LAW

[47]The Tribunal must consider the provisions of Section 230 of Employment Rights Act 1996 which provides: - Employees, workers etc.(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly.

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Act “employment”— (a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and (c) in relation to a worker, means employment under his contract; and “employed” shall be construed accordingly.

[48]No relevant law was referred to by Counsel acting on behalf of the Respondent. He did make regular reference to the need for mutuality of obligation for there to be a contract of employment. It is now well established however that in order to determine whether such exists it is necessary to look at the working periods themselves taking into account their frequency and duration. The Tribunal may be able to infer from the parties conduct the existence of a continuing overriding arrangement amounting to a contract of employment where there has been a regular pattern of work over a period of time.

[49]The issue of personal performance is also relevant and was made much of by the Respondent. It was made clear in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance 1968 1 all ER433 that the employee must have agreed to provide his or her own work and skill. As was stated there the classic description of a contract of employment: 'A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.

(iii) The other provisions of the contract are consistent with its being a contract of service ... Freedom to do a job either by one's own hands or by another's is inconsistent with a contract of service, though a limited or occasional power of delegation may not be.'

[50]The issue of control is also relevant, namely that ultimate authority over the employee and the performance of his or her work rests with the employer.

[51]The Tribunal may also look at how integrated into the organisation the relevant worker was.

[52]Of relevance will also be the financial considerations although the payment of Income Tax and National Insurance will only be one of the factors to be considered. Thus the fact that the Claimant was paid gross is not conclusive proof that there was a contract for services rather than of employment.

[53]The Supreme Court in Autoclenz v Belcher

[2011] IRLR 820

made it clear at paragraph 35 that: “…the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description.”

[54]Giving the judgment of the Supreme Court Lord Clarke referred to the Court of Appeal decision and stated: “With characteristic clarity and brevity Sedley LJ described the factual position as follows:'104. Employment judges have a good knowledge of the world of work and a sense, derived from experience, of what is real there and what is window-dressing. The conclusion that Autoclenz's valeters were employees in all but name was a perfectly tenable one on the evidence which the judge had before him. The elaborate protestations in the contractual documents that the men were self-employed were odd in themselves and, when examined, bore no practical relation to the reality of the relationship.

105. The contracts began by spelling out that each worker was required to “perform the services which he agrees to carry out for Autoclenz within a reasonable time and in a good and workmanlike manner” – an obligation entirely consistent with employment. Notwithstanding the repeated interpolation of the word “subcontractor” and the introduction of terms inconsistent with employment which, as the judge found, were unreal, there was ample evidence on which the judge could find, as he did, that this was in truth an employment relationship.

106. His finding did not seek to recast the contracts: it was a finding on the prior question of what the contracts were. Rightly, it was uninfluenced by the fiscal and other consequences of the relationship, which were by no means all one way.'

[55]Lord Clarke stated that he entirely agreed with those conclusions. THE TRIBUNAL’S CONCLUSIONS

[56]Neither of the parties sought to argue that they entered into anything other than a contract of employment when the Claimant was first recruited. That document clearly reflected the intention of the parties at the outset. Mr Dhir expressly accepted that this was an Employment Contract. That is the basis upon which the Claimant was employed.

[57]The Tribunal does not accept on the facts that the Claimant ever agreed to self employed status. It has no documentary evidence from the Respondent of either the conversation or that there was any change to the relationship.

[58]The Claimant was sent work to undertake on a weekly basis. Although his hours varied he worked continuously for the Respondent. He did not refuse to undertake work and neither did he ever send a substitute. The Tribunal had no evidence before it that that was a practice that was accepted by the Respondent, either in relation to the Claimant or other members of staff.

[59]The Respondent tried to suggest that the Claimant could send and had indeed sent his wife in his place, but again there was no evidence of that. She works for the Respondent and if that was the case it must have been possible to provide documentary evidence that that was the case.

[60]The Tribunal did not find the arguments advanced on behalf of the Respondent to be persuasive in any way whatsoever. To go through the contract stating that various clauses did not apply did not seem to answer the relevant questions. The fact that the Respondent did not enforce post termination restrictions and had not used a disciplinary procedure maybe because they chose not to do so and/or had no cause to do so. It is certainly not determinative of employee or worker status.

[61]The Claimant gave convincing evidence that he understood the concept of self-employment and that it was similar in his home country of Romania to in the United Kingdom. He did not ever intend to be self employed, he intended to be a worker or an employes and that is the contract he entered into.

[62]The Tribunal is therefore satisfied that the Claimant was an employee working under the contract he entered into on the 30th April 2015. As already noted the Tribunal has not made any findings with regard to the rate of payment and the appropriate Appendix 1 as it was not taken to evidence on that point. Further it has made no findings with regard to how this relationship ended. Those matters will be for the substantive hearing.

[63]It follows that the Claimant has the requisite employee status to bring claims under the Employment Rights Act 1996 that require him to be an employee. The claims were not further clarified at this Preliminary Hearing and a further Preliminary Hearing will now be listed to clarify the issues and list the matter for hearing.

[64]If the tribunal were wrong in its conclusions as to employment status it would have found that the Claimant was a worker within the meaning of section 230(b).

[65]There was a contractual relationship which despite the submissions to the contrary the Claimant undertook to perform work personally. That is the reality of what occurred. There is no evidence to the contrary. This would be particularly important in the highly regulated care sector where workers are dealing with vulnerable individuals. If the Respondent did not require personal service then it had to explicitly make this clear and the conditions that would be required to be satisfied. It is not sufficient for Mr Dhir to say to this tribunal that the Claimant could have sent another carer known to the Respondent when there is no evidence of that being the practice.

[66]The Claimant was not ‘a client or customer of any profession or business undertaking’ carried out by him. It was not even put to the Claimant that he was running his own business. It is not clear to this tribunal how and why the Respondent sought to argue that the Claimant was not a worker.

[67]In the alternative therefore the Claimant would have been entitled to pursue claims requiring worker status.

RELEVANT LAW

[1]The Respondent to pay the admitted sum of £2498.47 gross to the Claimant in respect of his claim for arrears of holiday pay.

[2]All other claims brought by the claimant are dismissed.

RELEVANT LAW

[1]On the 26 May 2017, this tribunal determined: –1.1 The claimant was an employee working under a contract of employment.

1.2 The tribunal therefore had jurisdiction to determine complaints requiring employee status

1.3 In the alternative, the tribunal would have found the claimant to be a “worker” and entitled to bring claims under the Employment Rights Act 1996 requiring that status

1.4 A preliminary hearing to be listed to clarify the claims and list the full merits hearing.

[2]That preliminary hearing took place on 25 August 2017 when this hearing was listed for October but required to be postponed by the tribunal. Relevant findings from the decision on status

[3]That the parties entered into a contractual agreement dated 30 April 2015.

[4]That pursuant to clause 10 of that contract the claimant was employed under a zero hours’ contract. This expressly provided that there was no obligation to offer work and no guarantee of work, or minimum hours under the contract.

[5]The contract contained clauses about holiday pay and notice pay. Preliminary hearing 25 August 2017

[6]This preliminary hearing was listed to clarify the issues the decision on status having been delivered to the parties. The following matters were clarified at that hearing: – Claims not being pursued6.1 The claimant confirmed that he is not pursuing an unfair dismissal claim or a claim that he was paid in breach of the National Minimum Wage. Claims in relation to which the Tribunal does not have jurisdiction

6.2 In his recent correspondence, the claimant seemed to be asserting claims under the Data Protection Act 1998 and Health and Safety at Work Act 1974. It was explained that the Tribunal does not have jurisdiction to deal with such matters.

6.3 The Tribunal does not have jurisdiction either to deal with issues concerning the claimant’s P60 and/or P45. Any concerns the claimant has with regard to his tax treatment must be raised directly with the Inland Revenue. Claims of Breach of Contract

6.4 These can be subdivided as follows: -6.4.1 That the claimant is owed wages from the 9th June 2016 to 1st August 2017 (ongoing) calculated by the claimant at £45,024.76.

6.4.2 Failure to pay contractual wages:-

6.4.3 Non-payment of overtime hours worked - £13,346.36. Compensation for loss of earnings since the 9th June 2016

(i) 30th April to 19th July 2015, £5,456.38.

(ii) 20th July 2015 to 14th May 2016, £17,650.68.

(iii) 15th May 2016 to 9th June 2016, £2,196.64.

6.5 The claimant now seems to suggest that his employment contract has continued and that he has been ready and willing to work. Consequently, he is claiming loss of earnings for breach of contract from the 9th June 2016.

6.6 The Judge drew his attention to the witness statement he filed in support of his claim that he was an employee and which was taken into account when the Tribunal reached the decision that he was. In that statement the claimant clearly stated: - “I worked for Bluebird Care until 9th June 2016 when I was informed by Mrs Violeta Badan that the company no longer required me.” Despite the fact that the Tribunal also found the claimant was on a zero hours contract and has not worked since that date the claimant is attempting to recover over £45,000 for loss of earnings he says he has suffered since the 9th June 2016.

6.7 It is in relation to this claim in particular that the respondent asked whether a Deposit Order could be made. It was made clear to the respondent that that could not be dealt with at this hearing but would need to be the subject of a separate application if the respondent pursued such an application. The claimant was however reminded that the Tribunal does have power to order payment of costs where it finds that a party has in the bringing or continuing with the proceedings acted unreasonably and/or the claim had no reasonable prospects of success. The claimant is urged to give careful consideration to the claims that he is bringing and seek advice if he is able to do so.

6.8 In relation to the other contractual claims, the claimant has set out attached to his letter of the 21st August 2017 how he has calculated these claims. Mr Clarke for the respondent had only just seen these calculations and will now take instructions on them. In the event that the respondent requires further information it will raise a request directly with the claimant. Holiday Pay

6.9 The claimant also claims that he has not been paid the correct holiday pay and has calculated this at £4,861.85. Failure to provide pay slips

6.10 The claimant has claimed a monetary amount in this respect. It was explained to the claimant however that this claim is one under Section 8 of the Employment Rights Act 1996 and the remedies the Tribunal can award if the claim is well founded are as set out in Section 12. These include a declaration, the Tribunal determining the particulars that should have been contained in the pay slips and up to 13 weeks of the unnotified deductions. The claimant has sought to claim 90 days pay and that is not something the Tribunal can award.

6.11 Directions were made for the future conduct of the matter as set out below. The bundle has already been virtually prepared in preparation for the earlier preliminary hearing but will just need to be added to. The claimant anticipates returning to Romania in November 2017 and the hearing was therefore listed at the end of October 2017.

[7]It is of particular note in view of the claims that the claimant has attempted to resurrect at this hearing that at paragraph 5 it was confirmed that the claimant was not pursuing an unfair dismissal claim nor a claim that he was paid in breach of the national minimum wage.

[8]Further the tribunal has stressed on numerous occasions and this is recorded again at paragraph 7 of that decision that the tribunal has no jurisdiction in relation to tax matters which must be raised directly with the Inland Revenue. The claimant’s witness statement.

[9]A witness statement had been filed with the tribunal on 25 October 2017. The claimant had however sent additions on 4 January 2018. He also produced some further calculations in a 3-page document at the outset of this hearing. Although there were objections to those additions being relied on at such a late stage the judge determined that it was only in accordance with the overriding objective as the claimant was a litigant in person and the 3-page document was a “summary” of his claims that this be allowed in. The effect of this therefore was that with the various editions the claimant’s witness statement ran to 10 pages. Zero hours contract

[10]At the outset of this hearing when again discussing the issues to be determined by the tribunal it appeared that the claimant was seeking a declaration that various clauses by the tribunal. The tribunal had to explain to the claimant that that was not within its jurisdiction, it already having found that that was one of the terms of the claimant’s contract. Wrongful dismissal claim

[11]The claimant seeks to recover wages from the time that he ceased working for the respondents on 9 June 2016 to date. He explained to this hearing that this was on the basis that his dismissal had been illegal. He had not been paid any notice. It seemed to be the judge that this might be a claim of wrongful dismissal. Although a wrongful dismissal claim had not been set out at the last preliminary hearing a claim for notice pay was in the ET1. The respondent’s position is that the claimant was not dismissed, he was on a zero hours’ contract and there was no obligation to offer him work. In the alternative, the periods for which notice would have been applicable would fall to be compensated under the zero hours’ provisions. It was agreed and the respondents accepted that they could deal with the wrongful dismissal claim and that was added to the list of issues. Holiday pay.

[12]Following the earlier decision on employment and work status the respondent accepts that the claimant is entitled to holiday pay, but not for the amounts claimed. The respondent has calculated that the amount due and payable to the claimant is £2498.47 gross. This has been calculated by taking the average week’s pay for the 12 weeks prior to the time the claimant finished work for the respondent as being £423.47 gross. This has then been applied as follows: –12.1 24.2 days in the holiday year 2015 -16

12.2 5.3 days in the holiday year 2016 -17.

12.3 (The holiday year being 1 April to 31 March).

[13]The respondent has pro-rated the annual leave for the years worked on 5.9 weeks on an average week’s pay. It accepts no holiday pay was paid. The claimant does not accept this calculation.

[15]The tribunal heard from the claimant and Mr Dhir on behalf of the respondent. From the evidence heard the tribunal finds the following facts.

The facts

[16]The tribunal when it heard the case on the Claimant’s status expressly stated that it did not have in the bundle before it a copy of appendix A to the contract setting out the rates of pay. It had therefore made no findings on it. In the bundle for this hearing appendix A appeared at page 56 of the bundle. It is headed Pay Schedule. It sets out hourly rates for weekdays, weekends, bank holidays, waking night and live in as follows: Weekdays (7 AM to 20 2 PM).16.1 Hour £7.00

16.2 45 minutes £5.25

16.3 30 minutes £3.50 Weekends

16.4 Hour £8.00

16.5 45 minutes £6.00

16.6 30 minutes £4.00 Bank holidays

16.7 Hour £14.00

16.8 45 minutes £10 50

16.9 30 minutes £7.00 Waking night (per night).

16.10 Monday to Friday £56.00

16.11 Saturday and Sunday £75.00 Live in (per week).

16.12 Live in (Monday to Sunday) £450.00 Dictation starts here

[17]The claimant’s evidence is that he never received this schedule.

[18]The evidence of Mr Dyer of the respondent, is that all workers would be given this schedule with the contract when they started. The tribunal is satisfied that this schedule did represent the rates agreed between the parties and at which the claimant was paid. The respondent’s records produced for this hearing, showing gross pay advices, all show those rates applied to the work undertaken oy the claimant. The claimant does not accept these documents. However, the tribunal is satisfied that although they show they were printed on 13 December 2016 (ie not at the time) that it would have been difficult to falsely prepare these retrospectively. They tally with the work undertaken by the claimant as shown on the booking forms (both the booking forms produced by the claimant and those produced by the respondent) and the tribunal is satisfied that they evidence that appendix A did accurately set out the rates that the claimant was to be paid.

[19]There is a further schedule showing that it was updated on 1 April 2016 when the rates slightly increased. These rates were as follows: - Weekdays (7.00 AM to 22.00 PM).19.1 Hour £8.50

19.2 45 minutes £6.37

19.3 30 minutes £4.25 Weekends

19.4 Hour £9.00

19.5 45 minutes £6.75

19.6 30 minutes £4.50 Bank holidays

19.7 Hour £12.75 Sleep in (per night).

19.8 Monday to Friday £35.00

19.9 Saturday and Sunday £35.00

19.10 Bank Holidays £70.00

[20]The claimant produced his booking forms and does not accept that these are the same as those produced in the bundle by the respondents. The tribunal is satisfied that they are and that they do not defer in any material respect. In fact, it would appear that the only difference is that one set has been printed in portrait mode and the other in landscape. As already found these tally with the gross pay advices produced by the respondent. The tribunal is satisfied that they are therefore and accurate record of the bookings made and work undertaken by the claimant. Wages claimed during the contract 30 April 2015 to 8 June 2016.

[21]The amount claimed by the claimant for this period has varied. In his ET1 the claimant had claimed he was not paid the National Minimum Wage but that claim has now been withdrawn. He then stated that from 30 April 2015 to 31 July 2015 and then 1 June to 7 June 2016, he was underpaid for the first period $4,498.93 and the second period £471.40, again asserting that he had not been paid the National Minimum Wage.

[22]The ET1 had been filed on 24 October 2016 but the Citizens Advice Bureau was still acting for the claimant. On 23 November 2016, they filed and served a “Submission of Statement of Remedy”. The claim for the period 1 August 2015 to 31 May 2016 was now £5,553.39. In addition, the claimant claimed an est9imated underpayment for the period 30 April to 31 July 2015, £4,498.93 on the basis he had not been paid the National Minimum Wage and for the period 1 June to 7 June 2016, £471.40 on the same basis.

[23]In calculating the underpayment of wages between 1 August 2015 and 31 May 2016, the claimant produced a schedule C showing the detail of the hours rostered and worked each day. It is of particular relevance to the claimant’s case that he records his live-in shifts as the total number of hours he was present at, sometimes 19 and others 24 hours. He then seeks to apply an hourly rate to those hours. This however fails to take account of the fact that in the Appendix A to his contract there were two rates for Night Work, either the Waking Night of £56 per hour, Monday to Friday, or £75 an hour Saturday and Sunday but the Live-In rate was clearly stated as per week being £450 per week. 24. `

[25]The claimant’s case however, on the monies owed to him, has continued to change since that schedule was filed on his behalf by the Citizen’s Advice Bureau. In a statement received by the Employment Tribunal on 10 March 2017, the alleged underpayment had significantly risen. The total for the period of employment had in fact risen to £31,262.31.

[26]By the date of this hearing and the witness statement dated 23 October 2017, the figures were as follows: -26.1 30 April 2015 to 19 July 2015 = £17,650.68

26.2 20 July 2015 to 9 June 2016 it appeared no amount was claimed.

[27]There were then some additional calculations provided at submission stage. By this time the figures were: -27.1 30 April to 19 July 2015 = £4,549.56

27.2 20 July 2015 to 8 June 2016 = £10,034.18 Wrongful dismissal/claim for notice

[28]In the ET1 this was a claim for one month’s notice. The claimant had calculated his average working week as over 91 hours a week and had applied the National Minimum Wage to that. He had calculated a claim of £2,813.14 as pay in lieu of notice.

[29]That remained the claim when the CAB filed the Schedule of loss.

[30]By the time of the claimant’s witness statement of 10 March 2017, that claim had considerably increased. The claimant then calculated loss of earnings from 10 July 2016 ongoing. He took his average hours a day in the 12 working days prior to dismissal, as 13.02 and applied National Minimum Wage to that. He brought a claim of £31,262.31.

[31]The clamant then filed his statement for this hearing dated 25 October 2017 claiming his loss of earnings from 10 June at £690.60 per week.

[32]In the final figures produced at submission stage the weekly figure had become £643.73. As this was being claimed from 8 June 2016, that is approximately 82 weeks, making a claim of £52,785.86. Holiday pay

[33]The claim in the ET1 was £3,141.60 and that was the same in the schedule of loss filed by the CAB. That however was calculated on the assumption that the claimant would have accrued 384 hours in holiday entitlement for the first year and 79 hours for the second, and applied the National Minimum Wage to those hours.

[34]In the claimant’s statement filed on 10 March 2017 the underpayment for holiday had risen to £4,861.85.

[35]In the witness statement of 25 October 2017, the claim for holiday was £4,773.69.

[36]In the final calculation submitted at submissions stage, the claim for unpaid holiday was £4,357.57.

Conclusions

[37]The tribunal is satisfied that Appendix A and subsequently the updated appendix was part of the claimant’s contract of employment. The tribunal has already found that he was on a zero hours’ contract with no guarantee of any hours being provided.

[38]The tribunal accepts the evidence of the respondent that the claimant has been paid in accordance with the contract. Their records substantiate that this was indeed the case.

[39]The claimant’s evidence is not to be accepted. It is not credible. The claimant relies upon something somebody from the CQC told him during an inspection and something he Health and Safety Executive told him. Neither of those entities is responsible for setting the claimant’s wages and would not necessarily have information about his contractual position.

[40]The claimant’s grievance appears to be how his pay was calculated but that was subject of an agreement between him and the respondent. He has withdrawn his National Minimum Wage claim. That is not before this tribunal.

[41]The claimant has added in additional claims of failing to be paid overtime and in the schedule of calculations given at the submission stage, he has even sought to claim some further expenses.

[42]The tribunal is satisfied there was no entitlement to overtime. There is no evidence of the expenses incurred and the claim in respect of those must fail.

[43]It follows that the only amount awarded to the claimant is the figure tendered by the respondent of £2,498.47 gross in respect of holiday pay due.

[1]The Claimant acted unreasonably in the bringing and conducting of the proceedings and the claims had no reasonable prospects of success such as to give rise to the Tribunal’s discretion to award costs.

[2]The Tribunal orders the Claimant to pay £5,000 towards the Respondent’s costs incurred. JUDGMENT having been sent to the parties on 8 January 2019 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:

[1]This was a hearing to determine the respondent’s cost application. A schedule totaling £22, 383.10 plus VAT had been submitted.

[2]The ET1 in this case was received on 24 October 2016 and accompanied by a schedule of loss totaling £18,879.06. The statement of remedy prepared for the claimant by the Ipswich Citizens’ Advice Bureau of 23 November 2016 set out more detail in support of that schedule of loss.

[3]There have been three preliminary hearings. On 16 February 2017 the claimant did not attend as he was unwell and his application for a postponement was granted. At the hearing on 26 May 2017, the tribunal found the claimant to be an employee or alternatively, a worker. At the hearing on 25 August 2017, there was a clarification of the issues in the claim.

[4]At the hearing on 8 August 2017 the Claimant withdrew a claim of failure to pay the National Minimum Wage and unfair dismissal, although it had to be pointed out to him that no unfair dismissal claim had ever been brought. At that hearing, as clarified at paragraph 6 and 7 of the summary jurisdiction to deal with the Data Protection Act, Health and Safety at Work Act or issues about the claimant’s P60 or P45.

[5]In a further letter dated 21 August 2017, the claimant set out the amounts he was now seeking to recover and by this date they totaled £86,340.03. The summary sent to the parties records at paragraphs 9 – 12 the basis of the claimant’s claim for loss of earnings since he ceased working for the respondent on 9 June 2016. As recorded at paragraph 11, the claimant was reminded that the tribunal had power to award costs if it found that a party had, in the bringing or conducting of the proceedings, acted unreasonably or the claim had no reasonable prospects of success. This was a warning also stated in the respondent’s ET3. The claimant was also urged to seek advice before continuing with the claims.

[6]The two-day hearing listed for 30 and 31 October 2017 was postponed by the tribunal and relisted for 4 and 5 January, although another day was required on 23 January 2018. In its decision following that hearing sent to the parties on 7 March 2018, the only claim that succeeded was the admitted sum by the respondent in respect of holiday pay of £2,498.47.

[7]In reaching its decision on costs the tribunal has taken account of the following matters it dealt with at that hearing. As recorded in its decision Paragraph 5 the claimant was reminded that he was attempting to resurrect matters that he had already abandoned; Paragraph 6 that the tribunal had no jurisdiction to deal with revenue matters; Paragraph 7 that the claimant had provided further witness statements and more calculations; Paragraph 8 that the claimant sought a declaration that certain clauses of his contract were inadmissible, in particular that he was working on a zero hours contract; Paragraph 9 the tribunal allowed the claimant to continue with a claim for wrongful dismissal but the claimant persisted in seeking his losses to date; Paragraph 10 the claimant would not accept the respondent’s calculations in relation to holiday pay.

[8]The tribunal did not find any fabrication of documents by the respondent. It found that the claim for wages during the contract had varied, that the claimant had not been dismissed but that no further work had been offered under a zero hours contract.

[9]In its conclusions the tribunal found the claimant’s evidence to be contradictory and not credible and that he had been relying on matters told to him by someone at the CQC and the Health and Safety Executive.

[10]All the claims were not established save for the respondent’s admitted amount for holiday pay.

[11]The relevant rules on costs are found in the Employment Tribunal Rules 2013: When a costs order or a preparation time order may or shall be made: 76.(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

(b) any claim or response had no reasonable prospect of success Ability to pay: 84. In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.

Conclusions

[12]The tribunal is satisfied the claimant has acted unreasonably in the bringing of these proceedings and in the manner in which they have been conducted and that the majority of the claims had no reasonable prospects of success. As such the tribunal’s discretion to award costs arises. The claimant who at the outset had advice from a Citizens’ Advice Bureau chose to pursue claims that were not within the jurisdiction of the tribunal. This was explained to him at the preliminary hearings, but he still tried to pursue them. It does not appear that the claimant sought further advice on his position.

[13]The claimant is aggrieved that he was working under a zero hours contract and how his pay was calculated, but the tribunal found at a preliminary hearing that he was employed under a zero hours contract. It had to remind him on numerous occasions that it could not revisit that finding or look into whether or not it was a ‘fair’ term of the contract.

[14]The claimant kept changing the basis of his claims. He came to the full merits hearing claiming over £80,000. This was a significant claim that the respondent had no choice but to incur costs in defending. The claimant cannot criticise the respondent for so doing.

[15]Even at this hearing, the claimant has sought to argue the issues in his claim rather than focus on the issue of costs.

[16]Rule 84 states that in deciding whether to make a costs order, the tribunal may have regard to the ability to pay. The claimant told this tribunal that he did no work at all for the first year and a half after he stopped working for the respondent, but that since July he was working as a carer. His evidence was as usual quite vague as to how this work had fluctuated with evidence being given that it was about one day a week, but then that sometimes he worked 16 hours in a row and for three weeks he had worked 70 hours and then had not received one day of work for a month and a half.

[17]His pay has varied from £60 to £80 but then the claimant said it could be more than £100 if he did a 12 hour shift. He referred to rent of £475, water bills of £35 and electricity of £100. These he shares with his wife who is also a carer and not working full time. They have no savings and the only asset is a car in his wife’s name.

[18]The issue of costs in the Employment Tribunal is still discretionary and does not follow the event. The claimant should not have to pay costs for the hearings on 26 May when it was found he was an employee and 25 August which was a standard hearing to clarify the issues.

[19]The respondent has referred to the case of Vaughn v London Borough of Lewisham (No.2) [2013] ILR 713, when an award of £83,000 one third of the respondent’s costs, was upheld against an unemployed claimant. In the decision of the Employment Appeal Tribunal in that case reference was made to another case of Arrowsmiths v Nottingham Trent University

[2011] EWCA Civ 791

, when it was held that costs orders do not need to be confined to sums the party could pay as it may well be that their circumstances improve in the future. The tribunal found that the claimant in that case, although currently unemployed, was aged 36 so relatively young with 15 years’ work experience who had until recently been earning around £30,000 per annum. It expressly found there was no reason to assume she would not return to her chosen career at that level at some point in the future.

[20]The tribunal finds that the case before it is slightly different in that the claimant here has been working as a carer and now does so again at approximately National Minimum Wage rates. The claimant gives his date of birth as 1955 so is 63 and therefore not as young as the claimant in Vaughn.

[21]Having considered all the circumstances, the respondent’s cost schedule and the bills to the respondent had accompanied it and giving consideration to the claimant’s ability to pay, the tribunal has concluded an award of £5,000 inclusive of VAT and disbursements should be made to cover, in effect, some of the costs of the full merits hearing which could have been avoided had the claimant not acted unreasonably in pursuit of these claims.

[22]How that sum is to be paid will be a matter for the County Court if the respondent seeks to enforce the award.

Conclusions

[1]There is no reasonable prospect of the original decision being varied or revoked because the matters raised in it are matters which were raised during the hearing of the claims. The tribunal has already determined these matters. The tribunal has refused the reconsideration application of the 31 March 2018 in respect of the liability decision. In the current application the claimant is seeking to again question the decision made on liability.

[2]If the claimant believes that decision to be incorrect then his right is to appeal to the Employment Appeal Tribunal.

[3]The judge apologises for the delay in considering this application. It came with a request for written reasons for the cost’s judgment. After they were provided it appears that this reconsideration application was not then referred back to the judge.