Mr D Wardrop v Viridor Waste Management Ltd : S/4101683/2017
JUDGMENT
At the Preliminary Hearing, the Employment Judge ordered that:-(1) “SThree Partnership LLP trading as Huxley Associates” be added as a respondent to the claim under rule 34 and that the claim be served on it at its registered office of 8th Floor, City Place, 55 Basinghall Street, London EC2V 5DX together with a copy of this judgment for information.(2) the claim against Viridor Waste Management Limited be struck out under rule 37(1)(a).REASONS
The claimant has brought a claim of unfair dismissal and breach of contract (in respect of notice pay). The respondent (Viridor) had made an application 1 S/4101683/2017Page2 on 21 September 2017 for the claim to be struck out under rule 37. There were various grounds in the original application and in the Notice of Hearing but Ms Irvine confirmed that she was only insisting on rule 37(1) (a) that the claim had no reasonable prospect of success. She also applied for the claim to be dismissed under rule 27.[2]In discussion with the parties, it was clear that Ms Irvine was unaware of the claimant’s response of 25 September 2017 which was send to Sian Strand who was representing Viridor at the time. A copy was provided to her.[3]Ms Irvine’s application was, in summary, that Viridor had not employed the claimant under a contract of employment and so there was no right to claim unfair dismissal. Secondly, even if Viridor was his employer, he did not have the required 2 years’ service to be entitled to claim unfair dismissal. The claim therefore had no reasonable prospects of success and should be struck out.[4]The claimant confirmed that he did not think he was employed by Viridor. However Viridor had terminated his contract. He considered that he was employed by "Huxley” and he understood that they had been unaware of the termination and were still seeking an explanation.[5]Ms Irvine had provided a copy of letter from Huxley Engineering that confirmed that there was a contract between Viridor and Huxley Associates, a trading division of SThree Partnership LLP to provide the claimant’s services.[6]I explained that a claim of unfair dismissal could only be brought against a person’s employer. Equally, the Employment Tribunal only has jurisdiction to hear a claim of breach of contract that relates to a contract of employment. It may be, depending on the details of the working relationship, that the claimant does not have a contract of employment with anyone and is either a “worker” or “self-employed”. However, that can only be determined once evidence is provided about the contractual arrangements. S/41 01 683/201 7 Page 3[7]At this point, the claimant has stated that he believes he was employed by “Huxley" . In these circumstances, I considered it was appropriate to add Huxley Associates as a respondent (under rule 34) and serve the claim on them at the registered office on their notepaper. Depending on their response, it may be that a further Preliminary Hearing will be required to establish whether it employed the claimant or not.[8]Regardless of the outcome of that procedure, I considered that a claim against Viridor has no reasonable prospects of success in circumstances where the claimant has accepted it was not his employer and, in any event, he was only working for them ( in whatever capacity) for less than two years. The claim against Viridor us therefore struck out. Employment Judge: Susan Walker Date of Judgment: 19 December 2017 Entered in register: 21 December 2017 and copied to parties E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: S/4101683/2017 Preliminary Hearing Held in Glasgow on 18 December 2018 Employment Judge: Mr A Kemp (sitting alone) Mr D Wardrop Claimant (Did not attend)[15]SThree Partnership LLP t/a “Huxley Associates” Respondent Represented by: Mr N Macdougall Advocate[25]Tribunals (Constitution and Rules of Procedure) Regulations 2013[30](d) that it has not been actively pursued.”12. Rule 37(2) states that “A claim…. May not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”13. I considered matters in the context of the overriding objective in Rule 2. I considered that the claim had no reasonable prospects of success. The Respondent had been added as an additional Respondent, and had set out 5 their position, that the Claimant was not employed by them, in their Response Form. In previous Orders the Claimant had been requested to set out the facts on which he relied in his arguments that he was an employee, and that his employer was the Respondent. His email of 3 May 2018 fails to do so to the extent required. It is in essentials not inconsistent with the Respondent’s 10 position, which was, putting it shortly, that they supplied the Claimant as a Consultant to Orange Genie Cover Limited, who in turn supplied him to work for Clients of theirs. The Master Agreement produced was evidence of that arrangement. It is not determinative, but the Claimant has not provided any basis in fact for an argument that the Respondent was his employer.14. Separately, the Claimant has been given a number of opportunities to respond to the Tribunal, as referred to in the Order, and to appear at the hearing before me, and has not taken them. I considered that he had had a reasonable opportunity to make representations, and that the position was clearly set out 20 in the earlier Orders I have referred to. I considered that the claim had not actively been pursued.15. Accordingly I struck out the Claim under Rule 37. 25 16. Finally I record that the Respondent wished to reserve its position on expenses, and the procedure for that matter was set out in paragraph 15 of the Order. Employment Judge: A Kemp Date of Judgment: 20 December 2018 5 Entered in Register: 24 December 2018 Copied to Parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4101683/2017 Held in Glasgow on 3 July 2019 Employment Judge L Wiseman Claimant No attendance Mr D Wardrop Respondent No attendance SThree Partnership t/a “Huxley Associates”[32]I decided, having had regard to the above points, and on balance not to make an order for costs.[33]I next considered the respondent’s submission that the claim had no reasonable prospect of success. The respondent advanced that argument on the basis(i) they were not the employer of the claimant;(ii) even if they were, the claimant lacked two years service and(iii) the claim was timebarred.[34]I noted the claimant initially brought his claim against Viridor because he considered he had been employed by them. He subsequently brought the respondent into the claim. I considered the issue of the correct identity of the claimant’s employer was not a straightforward matter in circumstances where it appeared the respondent provided specialist recruitment services for a range of permanent and contractor roles. They found the claimant a contractor role with a client (Interserve) and, the respondent asserted, the claimant opted to have a contract with an umbrella service provider which was Orange Genie.[35]I noted it would be usual for a preliminary hearing to take place to determine the correct identity of the employer.[36]The claimant was asked to explain the basis upon which he maintained a tribunal could determine his claim of unfair dismissal in circumstances where he did not have two years’ service. The claimant did not ever respond to this enquiry. The claimant’s claim form was lacking in detail, but there did not appear to be a basis for asserting this was a situation where the claimant did not need two years qualifying service.[37]The respondent asserted the claim was timebarred. I noted there had not been an issue of timebar in respect of the original claim. I further noted the respondent did not set out the basis of their position, and accordingly I can take no view on this point.[38]I also had regard to the Judgment dated 20 December 2018 where an Employment Judge decided to strike out the claim, and one of the reasons for doing so was because the claim had no reasonable prospects of success. The Employment Judge reached that view because the respondent had clearly set out its position. The claimant had been given every opportunity to respond and set out his position, but had failed to do so, and accordingly the Judge concluded there was no reasonable prospect of the claimant being able to show he was an employee of the respondent.[39]I must now consider whether to exercise my discretion to make an order for costs. I have noted above the fact the claimant is a litigant in person. I have also noted the issue of the identity of the claimant’s employer was not a straightforward matter. I considered the claimant had responded to the order asking him to set out his position, but his response took the matter no further.[40]I acknowledge the issue of whether the claim had a reasonable prospect of success could have been dealt with earlier in the proceedings, but I balanced that with the fact that not all of that delay rested with the claimant. I concluded this was a case which the claimant started with good intentions, but which subsequently mushroomed beyond his ability to deal with it. I decided, in all the circumstances, not to make an order for costs.