Mr R Scott v Miss G Rose (deceased) and Z: 4103667/2019
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4103667/2019Venue GlasgowHearing 16 December 2019
Between
Mr R ScottClaimantMiss G Rose (deceased) and ZRespondent
Before
Employment Judge R GallMr I Maclean for respondentEmployment for respondentConsultant for respondentDate 16 December 2019
JUDGMENT
[1]The claimant does not have standing to bring claims of the types he seeks to bring as he is not an employee in terms of Section 230(1) of the Employment Rights Act 1996, is not a worker in terms of Section 230 (3) of the Employment Rights Act 1996 and is not engaged under a contract of employment or a contract personally to do work and therefore is not in employment as defined in Section 83(2) of the Equality Act 2010 enabling a claim to be brought under that Act. As stated at the hearing, in terms of Rule 62 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, written reasons will not be provided unless they are asked for by any party at the hearing itself or by E.T. Z4 (WR) written request presented by any party within 14 days of the sending of the written record of the decision. No request for written reasons was made at the hearing. The following sets out what was said, after adjournment, at conclusion of the hearing. It is provided for the convenience of parties.[2]At this hearing on 16 December 2019 the claimant appeared on his own behalf. The respondents were represented by Mr Maclean. The claimant give evidence. A bundle of productions was submitted by the respondents.[3]There was no evidence on behalf of the respondents. Since commencement of the claim, Ms Rose has unfortunately died. The claim remains resisted by her personal representatives through Mr Maclean.[4]Prior to commencement of evidence I explained the procedure which would be involved in this Preliminary Hearing (“PH”). I explained to Mr Scott that in terms of the rules I was to ensure that parties are on an equal footing, as far as practicable. I explained that it was his responsibility to ensure that any elements of evidence which he wished to give were given to me and that he referred me to any relevant documentation which he said supported his ability to bring the claim. I would seek to ask relevant questions however he should ensure that he spoke in evidence about any factors which he regarded as being of significance when it came to my assessment of whether he was an employee, worker or was engaged under a contract personally to do work. He gave his evidence and, prior to conclusion of his evidence, consulted notes which he had made in order to try to ensure that he had given evidence about any points which he regarded as being helpful to determination of his status. Mr Maclean had no objection to these notes being used by the claimant for that purpose immediately prior to conclusion of his evidence in chief.[5]The claim at present is one of unfair dismissal, also extending to one for holiday pay and breach of contract. The claimant has proposed that it be amended to include a claim of discrimination. This PH was dealt with as if the claim of discrimination was being made in that it seemed appropriate to make the decision on his status on the footing that the claims advanced include a claim of discrimination.[6]The PH was set down to determine the status of the claimant and the identity of the employer if there was an employer.[7]The Employment Rights Act 1996 deals in Section 230 with the definition of employment. An individual is an employee if he or she has entered into, or works under, a contract of employment. An individual is a worker if he or she works under a contract of employment or an agreement to perform work or services personally. In terms of the Equality Act 2010 a claimant is able to advance a claim if he or she is, for the purposes of this type of claim, employed, meaning that he or she is employed under a contract of employment or a contract personally to do work.[8]Here, there is a written contract. That is an Independent Contractor Licence Agreement. That document was entered into on 14 October 2009 when the claimant commenced this working relationship. That working relationship terminated at the end of December 2018. The Licence Agreement is between the claimant and Ms Rose. A copy of the Licence Agreement is in the bundle.[9]That agreement states clearly that the claimant is self-employed. The claimant’s own evidence was that he was self-employed. He confirmed that in an email to the respondents, that email appearing at page 20 of the bundle.[10]The business involved was that of gents’ hairdressers. Customers attended to have their hair cut. There was no appointment system in place. The customer could nominate a particular barber to cut his hair. That might occur if for example the customer had had his hair cut by that barber on an earlier occasion. If that occurred the customer would simply wait for that particular barber to be free. The customer might be offered the opportunity to use the services of a different barber who might have become free. It would however be up to the customer whether he took that opportunity or waited for the barber for whom he had expressed a preference.[11]If a customer had no preference as to any particular barber he would wait in the queue and be taken by the next available barber.[12]During the period when the claimant worked in the premises in question, there were initially 3 barbers including the claimant. That increased to 5 barbers before the working relationship between the claimant and the respondent terminated.[13]Whilst the claimant was very concerned about the lack of space within the space of the salon for each hairdresser, that did not in my view assist with determination of the points at the PH.[14]Having had his hair cut, the customer would pay at the till. At the end of the week the claimant would receive two thirds of the price of each haircut as paid by his customers. One third would be retained by the respondents. Any income therefore for the claimant was dependent upon the number of customers. There was no obligation on the part of the respondents to provide the claimant with any work. There was no obligation on the claimant to carry out work cutting the hair of any customer who appeared.[15]The claimant paid a rental charge to the respondents for the seat at the salon. That was £65 per week. The money was deducted from the payment to the claimant of two thirds of the charges for his customers.[16]The shop was overseen on a day-to-day basis by Mr Rose, father of Ms Rose. He would place hair products on the shelving beside each of the barbers. If a customer wished to purchase those the customer would pay the relevant price at the till. None of that money went to the particular barber involved.[17]The claimant was slightly wary of Mr Rose. He wanted to keep on his “right side”. He thought that Mr Rose might potentially terminate the Licence Agreement if there was a complete falling out with him. He therefore paid attention to what Mr Rose said to him.[18]The claimant was able to organise holiday times for himself and to take breaks as he wished.[19]If the claimant wished to take a holiday he would enter the relevant dates on a calendar in the salon. He himself would arrange a substitute. That could be anybody providing they were appropriately qualified. If he was unable to arrange a substitute then he would speak to Mr Rose who would organise a substitute or ask others to increase their hours to cover the “seat”. On one occasion in the 9 years when the claimant worked at the salon a substitute he had arranged when on holiday was asked by Mr Rose to cover a different seat from that of the claimant, resulting in the claimant having to pay the rental charge for receipt although on holiday. Had the substitute “taken over” the seat of the claimant, the substitute would have paid the rental charge.[20]Although the claimant could take holidays as and when he wished, Mr Rose might express a view on whether he saw that as being a desirable time for the claimant to take holidays. The claimant always had an eye to that and wished to keep Mr Rose happy as the claimant viewed himself as receiving good money for the job which he did. If therefore Mr Rose was unhappy at holiday times planned by the claimant, then the claimant might rearrange those. He did not however have to do that. It was his decision.[21]A similar position applied in respect of breaks. The claimant could take breaks if and when he wished. Again, Mr Rose might express a view if, for example, there were a number of people waiting to have their hair cut. Again, the claimant might alter the time of his break if he considered that appropriate. It was ultimately up to him as to when he took his break and whether he took it notwithstanding any reservation or unhappiness expressed by Mr Rose.[22]If the claimant was off ill he did not receive any sick pay.[23]The claimant dealt with his own tax and national insurance arrangements. He engaged an accountant. He submitted tax returns and settled his tax directly with HMRC.[24]The opening and closing times of the salon were determined by Mr Rose. The claimant did not have a set of keys for the salon until the later period of his time at the respondents’ premises.[25]In deciding the status of the claimant, a Tribunal should properly have regard to the reality of the situation. It does not therefore simply follow that because the Licence Agreement proceeded on the basis of the claimant being selfemployed, that was his status.[26]I considered the evidence carefully. I had regard to the practical working arrangements as explained by the claimant and also to the terms of the Licence Agreement.[27]I kept in mind that the only evidence I heard had come from the claimant. There was no competing evidence of a different working arrangement to that which the claimant described during his evidence.[28]It seemed to me of particular significance that the claimant could take holidays and breaks as he thought appropriate. I also regarded as a significant that he could arrange a substitute who could be anyone with the appropriate qualification as a barber. The Licence Agreement provided for that possibility. It is of course not determinative in its terms. A Tribunal should have regard to the reality of the position. Although Mr Rose might express opinions on the timing of a holiday break, the claimant gave clear evidence that ultimately the decision on those matters was his.[29]It also struck me as significant that the claimant accounted for his own tax and national insurance.[30]I did not see it as consistent with the relationship being one of employment that the claimant paid Ms Rose money by way of rental of the chair.[31]I accepted the claimant’s evidence that customers came to the business and that Mr Rose was influential in determining any deviation from a “taxi rank” arrangement whereby the customer was allocated to the barber next available. The claimant’s evidence was that Ms Rose was present in the premises now and again. It was Ms Rose who had signed the Licence Agreement. Mr Rose was present on site most of the time as, in effect, manager. Ultimately one of the barbers was appointed manager. Mr Rose however remained regularly present in the premises in a supervisory capacity.[32]Mr Rose would challenge the claimant if the claimant appeared after the allotted start time in the morning. This element seemed to me to be the “high point” of the claimant’s case in that there was a degree of control by the claimant being asked to explain any late coming. On the claimant’s evidence, Mr Rose would say that the claimant needed to be there and would ask him whether he liked his job, implying that if he wished the working arrangement to continue then he should be present. This was an area in which the licence agreement at clause 4. 5 .2 said that the claimant was to have regular and predictable opening hours but that they were to be as the licensee in his absolute discretion was to determine. That appears not have been the position given the fact that Mr Rose would speak to the claimant if he did not appear in time for a 9 o’clock start and also on the basis that Mr Rose was the person who opened up and locked up the salon. In the later stages of the agreement, as noted above, the claimant confirmed that he had a key for the premises.[33]Weighing everything in the balance however, I concluded that the claimant was not in a relationship of employment as detailed in the Employment Rights Act 1996 and in the Equality Act 2010. That was my conclusion on the evidence, particularly with regard to the ability of the claimant to arrange a substitute without the need for approval by the respondents, the ability of the claimant to arrange his holidays and breaks as he saw fit, subject only to the potential of there being a degree of disapproval from Mr Rose and also having regard to the arrangements for tax and national insurance being matters for the claimant, with the payment by him of a rental fee for the chair being a requirement.[34]Having come to that conclusion, and having reconvened to deliver this Judgment, the claimant sought to produce documents which had not produced or spoken to at the PH. Mr Maclean did not object to those being lodged and spoken to by the claimant.[35]The one document which seemed to me to be relevant to the point to be determined at this PH was the text exchange between the claimant and Ms Rose. That was from October 2018. The claimant had sent a text to Ms Rose saying that it had very quiet that day. He asked if it was OK to leave early. Ms Rose replied that this was OK “but just today tho”. Mr Maclean did not wish to cross examine the claimant on this.[36]That text was consistent with the claimant requiring approval to leave early. That did not square with his earlier evidence. It certainly seemed to contradict his evidence that he could leave for a break when he wished. He did not say in evidence that this was a regular occurrence, or indeed that it had happened more than once. This was the only instance mentioned by the claimant of approaching either Mr Rose or Ms Rose for approval to do anything. His evidence was that Mr Rose was the person on site. It was Mr Rose who sometimes expressed his view to the claimant on the claimant’s proposed arrangement of his day or of his holiday dates. It was unclear why the claimant had contacted Ms Rose on leaving early on this occasion. His earlier evidence was in direct contradiction of there being any need to obtain approval before he took a break or took any holiday. This late passage of evidence appeared to describe one occurrence.[37]I took a few minutes to review this fresh evidence. Having done so, I adhered to the view I had earlier taken. It seemed to me that the claimant’s own evidence at the initial stage of this PH as to how his working arrangement operated and how he could take holidays and breaks as he wished outweighed this recently given evidence of one particular instance of the claimant seeking approval to stopping work early. Certainly that text exchange was puzzling given that earlier evidence. Had the situation been one of evidence from the respondent that the relationship was of the claimant pleasing himself in relation to hours, holidays and acceptance of a customer, with contrary evidence of that not being the position and this text exchange being pointed by the claimant, it might have been different. The only description I had of how the working relationship operated was from the claimant. His evidence (this text exchange apart) was far more consistent with a self-employed situation than with a relationship of employer/employee and/or one in which the claimant was a worker.[38]Having so determined, the position is that the claimant is unable to proceed with his claim, given his failure to meet the essential foundation criteria of employment or worker status. Expenses[39]The respondents have sought expenses. They have issued a costs warning letter to the claimant. I explained to the claimant that there were provisions in the Rules as to when expenses can be awarded by a Tribunal. I also explained that the Rules provide that the Tribunal can take his ability to pay into account in deciding whether to make an award of expenses and, if an award is to be made, in deciding what any such award is to be. If he wishes the Tribunal to consider his ability to pay, it is essential that he produces information with vouching eg current salary, capital (house, car, savings information if applicable) utility charges, mortgage details (if appropriate) and documentation to support any other capital, income or outgoings of the family. Evidence would potentially be given. A hearing is set down to consider the application. It should be for 3 hours. The date set is 6 February at 10am. The Clerk to the Tribunal is requested to send the hearing notices to parties.
REASONS
[1]The claimant in this case has represented himself throughout. The respondents have been represented by Mr Maclean throughout.[2]A Preliminary Hearing (“PH”) was held in this case on 16 December 2019. Mr Scott and Mr Maclean both appeared. Mr Scott gave evidence. He referred in evidence to documents which he brought to the PH. Copies were available for the Tribunal and the respondents.[3]At the outset of the PH, before evidence commenced, I explained to Mr Scott that, consistent with the overriding objective, I would ask him questions when he was giving evidence. Those questions would be about which seemed to me to be relevant matters in relation to the point at issue. I emphasised that he remained responsible for ensuring that he gave evidence about any matters he considered relevant to the matter which had to be decided at the PH. I was satisfied he understood this.[4]The point at issue was the working relationship between the claimant and the respondent. The respondents maintained that the claimant was selfemployed. The claimant maintained that he was an employee or a worker. He maintained that he was employed either under a contract of employment or under a contract personally to do work.[5]Having heard the evidence and considered the documents spoken to in that evidence at the hearing, I determined that the claimant was not an employee, was not a worker and was not engaged under a contract of employment or a contract personally to do work. His claims therefore in terms of the Employment Rights Act 1996 and the Equality Act 2010 could proceed no further.[6]In reaching that decision I had regard to documents produced to me by the claimant both during the initial element of hearing and also when I returned to deliver the oral Judgment in this case. Due to production of these documents by the claimant after the evidence appeared to have been concluded, Judgment was not issued at the time initially planned. Instead, further evidence was taken from the claimant in relation to the documents he had produced after what had appeared to have been the conclusion of evidence.[7]In coming to the Judgment in the case in December 2019, I considered the evidence and documentation, together with the additional evidence and documentation. Prior to determination of the matters at issue, I took an additional few minutes to consider this further evidence and documentation. The oral Judgment was then delivered, its terms as being reflected in the Judgment of 16 December, sent to parties on 18 December 2020. Principles to be applied in a reconsideration application[8]In terms of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Rules”) procedure is set out for reconsideration of a Judgment.[9]If practicable, the reconsideration application is to be undertaken by the Employment Judge who made the original decision. The Employment Judge is to consider the application. If he or she is of the view that there is no reasonable prospect of the original decision being varied or revoked, the application is to be refused. Otherwise, a notice is sent to parties giving time for any response to the application by the other party to the case and seeking the views of parties on whether the application can be determined without a hearing.[10]Rule 70 details the test to be applied by the Tribunal. It provides that a Tribunal may reconsider any judgment where it is necessary in the interests of justice to do so.[11]Consideration of the interests of justice involves weighing up all the relevant factors for and against reconsideration, including the balance of respective prejudice to each party if the application was to be granted or refused. The Tribunal therefore has a broad discretion in considering an application such as this.[12]Reconsideration is not a chance for a party to have a “second bite at the cherry”. As the case of Fforde v Black UKEAT/68/80 highlights, “every unsuccessful litigant thinks that the interests of justice require review.”[13]Reconsideration is not therefore a chance to run the same arguments as were originally run. Finality of litigation is a principle that requires to be kept in mind by the Tribunal in making a decision upon a reconsideration application. It is in the interests of both parties that cases are litigated to a conclusion within a reasonable time and are not opened up and reargued simply because one party is unhappy with the decision initially reached. For reconsideration to be appropriately undertaken the interests of justice must require that. The case of Outasight VB Ltd v Brown 2015 ICR D11 confirms this.[14]It may be said by a party seeking reconsideration that there is new evidence. If that is so, it is important to know whether that evidence was available to the party who now seeks to present it as a basis for reconsideration at the time of the hearing. In some instances, a party may be able to explain why he/she has only just become aware of particular information. He/she may be able to explain why that documentation was not available at time of the hearing. That explanation may make it appropriate to consider any such evidence or documentation now said to be relevant and of significance to the point involved.[15]In other instances, a party may be seeking to argue that whilst information or documentation was available to them at time of the original hearing, it was not present on the day due to an oversight or some miscalculation in the preparation. A party may, for example, say that they did not appreciate the importance of a particular document. In that scenario, the Tribunal requires to weigh up the submission made as to why relevant evidence which existed at the time of the hearing was not presented at the hearing. It has then to consider any information on that point in light of the desirability of finality of litigation and the hesitancy or indeed inappropriateness, having regard to the interests of justice, to allow a party a “second bite at the cherry”. The Tribunal should keep in mind that the hearing and the issues to be determined in it were known to the party who now may maintain that further relevant documentation exists and who asks that the original decision be reconsidered in light of that.[16]If evidence was available but was not used then exceptional circumstances require to exist before that evidence can lead to reconsideration. Relevant cases are Flint v Eastern Electricity Board 1975 ICR 395 and General Council of British Shipping v Deria and others 1985 ICR 198. If documents which were available at time of the original hearing are produced to the Tribunal at the stage of reconsideration and reconsideration is sought on the basis of those documents, it is unusual therefore for the Tribunal to reconsider the original decision. This reconsideration[17]In this case I decided, on receipt of the application, that it was not the case that there was no reasonable prospect of the original decision being varied or revoked. The respondents were therefore given the opportunity to reply to the application for reconsideration. They did so and urged that the application for reconsideration be refused.[18]The hearing in respect of the reconsideration application was set down for 23 April 2020. Unfortunately, it did not prove possible to hold that hearing on that day. This was as the coronavirus pandemic had occurred. That meant that an in-person hearing was not possible. In those circumstances a case management PH was held on the day intended for the hearing.[19]As a result of that PH the claimant was given a period in which to set out any points which he wished to make in support of his reconsideration application. The respondents were given time to answer that. The April PH note confirms that the claimant was made aware that in some instances new evidence could be considered at time of the reconsideration application. The Note confirms that in other instances the view taken by the Tribunal is that it was incumbent upon the party in the case to have all relevant evidence available for the hearing. It was emphasised tin the Note that the Tribunal should be made aware of what the documents now to be produced were, what relevance they might have to the point which had been determined at the earlier PH in December 2019, why they were not produced at that PH and when it became apparent to the claimant that they were in fact of significance.[20]The claimant submitted an email of 8 May setting out his position in response to the points raised at the April PH and reflected in the Note. He detailed the basis on which he sought reconsideration. The respondents replied on 2 June.[21]Through the clarification of the reconsideration application given by the claimant, it became clear that the documentation which he referred to as supporting the need for reconsideration was in fact documentation which was available at time of the PH on 16 December 2019. He said in his email of 8 May “I had possession of new material I didn’t have the materials on me at the time of the hearing, I didn’t know the significant (sic) of having the material and feel that has relevance and would like this material to be considered.” He also said that he had a photo of a till receipt. That document had been accepted the December PH by the Tribunal as a production. The claimant said however that he did not realise the significance of this document until the day of the PH. He went on to say that he was not asked specific questions about the document which he could have answered and which would have explained some elements in the till receipt.[22]The claimant highlighted that he was not a lawyer and did not know the importance of court procedures or technicalities. He referred to his lack of experience when saying that he did not appreciate the significance of the material which he had and which he now wished to place before the Tribunal.[23]At a PH held on 18 June, both the claimant and Mr Maclean for the respondents agreed that they had set out their respective positions in writing and that there was nothing to be gained by holding a formal hearing to speak to the reconsideration application and opposition to it. They were both content that the application be decided on the papers they each had submitted. Earlier PHs[24]It is of relevance in considering this application that the claimant was aware of the issue to be determined at the December PH and of the type of matters which would be considered by the Tribunal in determining whether his status was that of working as an employee, being a worker or having entered into a contract for personal service with the respondent.[25]There had been a case management PH on 3 July 2019 at which a PH was set down to determine the identity of the respondent and also the status of the claimant. At that PH in July, the claimant had said that he had entered into an Independent Contractor Licence Agreement. It is noted that the claimant said that he was an employee.[26]At a PH on 8 August 2019 there was an issue regarding attendance of the second respondent in the case at that point. The PH was adjourned and ultimately was set down for the PH in December which proceeded. Decision upon reconsideration[27]I had a degree of sympathy for the claimant. I understand that preparing and presenting a case as a party litigant is not easy. That said, the claimant was aware of the issue. He knew the point to be determined, its crucial importance to his case and that documentation was of significance. Documentation had been prepared by both parties for use at the PH in December 2019. The issue at the PH did not come as a surprise to the claimant given that it had been discussed and fixed as one of the issues to be determined when the first PH took place in July 2019.[28]Evidence was given by the claimant at the PH in December 2019. He referred to documentation. After hearing evidence and submissions, I adjourned in order to consider the evidence and productions spoken to, with a view to returning to deliver an oral Judgment in the case. When I returned, as the Judgment records and as mentioned above, before I delivered the Judgment the claimant asked that I consider additional documentation. He gave me that documentation. I permitted him to give evidence in relation to it. I then considered the evidence initially led and documentation initially spoken to together with this further documentation and evidence in relation to it. I came to a view and gave the oral Judgment in the case. That Judgment was typed up and sent to parties on 18 December.[29]I have read the reconsideration application submitted by the claimant. I have considered that and have also considered the further detail given by the claimant in his email of 8 May.[30]The points which the claimant makes are in reality points which were made at time of the PH in December 2019. Insofar as the claimant refers to further documentation, the reason he gives for that documentation not being available at the PH in December 2019 is that he did not appreciate its significance at that time. The evidence is not therefore new in the sense that its existence has only become known to the claimant since the PH. In fact, evidence about the areas to which this additional evidence relates was given at the PH. Insofar as there may be any potential element of information/evidence going beyond any evidence already led, it seems to me to be relatively minimal. I have concluded that to allow the original judgment to be “opened up” and varied or revoked would, in the circumstances, be a good example of a party having a “second bite at the cherry”.[31]It is incumbent upon a party to litigation to present any relevant evidence to the Tribunal at time of the hearing. This was not a novel point which arose on the day. The claimant was not taken by surprise by the evidence or by the topic being considered by the Tribunal. Inexperience on his part and a lack of appreciation of the significance (as he sees it) of a particular document may have led to it not being before the Tribunal on the day or to an absence of evidence by him about a particular matter. That is unfortunate. It does not, without more, in my view lead to it being in the interests of justice to revoke or vary the judgment.[32]I have to balance with a degree of sympathy for the claimant, the desirability of finality of litigation. If a party is unsuccessful in litigation and feels, on reflection, that there were lines of argument open to that party, or potentially documentation available, which ought to have been in front of the Tribunal and would have been had the party thought about it or potentially had their wits about them on the day, that is not a reason for reconsideration leading to revocation or varying of the original decision. A view that things would have been done differently on the day in hindsight does not result in it being in the interests of justice to vary or revoke a Judgment on reconsideration.[33]I should add that I am not in any event persuaded that the Judgment would properly be varied or revoked even if the additional documentation or evidence had been before the Tribunal on the day. I do not see it as adding anything to the information and documentation available to me at the PH in December 2019.
Conclusion
[34]I am not therefore persuaded that reconsideration leading to revocation or variation of the original decision in terms of the Judgment dated 16 December 2019 and sent to parties on 18 December 2019 is in the interests of justice. That judgment is therefore confirmed.