Mr N Macleod v UK Research and Innovation and BAM Nuttall Ltd: 4104226/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4104226/2025, 4104266/2025, 4104359/2025
Between
Mr N MacleodClaimantUK Research and InnovationRespondent
Before
Employment Judge M WhitcombeDate 22 May 2026
JUDGMENT
The claimant’s application for reconsideration is refused under rule 70(2) of the Employment Tribunal Procedure Rules 2024 because there is no reasonable prospect of the original judgment on preliminary issues being varied or revoked.
REASONS
[1]This is the claimant’s application for reconsideration of the judgment given orally at a preliminary hearing in claim number 4104266/2025, heard at the same time as claim number 4104359/2025 brought by the same claimant against BAM Nuttall Limited. The latter claim now proceeds separately.[2]The application for reconsideration was made within the time limit. The challenge is effectively to paragraphs (2) and (3) of the written record of that judgment on preliminary issues, which concerned the claim against UK Research and Innovation Limited (“UKRI”).[3]Importantly, the only basis on which the claimant argued that UKRI were potentially liable for breaches of the Equality Act 2010 was under section 41, the “contract worker” provision. Grounds[4]I will deal in turn with each of the grounds on which reconsideration is now sought, though there is some overlap between them. Material evidence not before the Tribunal[5]The claimant has not sought to explain why the documents attached to his application were not before the Tribunal at the preliminary hearing. They should have been, if he thought they were relevant. I see no reason why they could not have been. My note records that the claimant was explicitly asked whether he relied on any other documents and replied that he did not.[6]By analogy with the principles in Ladd v Marshall [1954] 1 WLR 1489 (applied in Scotland in judgments of the current President of the EAT), I find that with reasonable diligence those documents could have been obtained for use at the preliminary hearing. It would not be just or appropriate to admit them into evidence now by way of reconsideration.[7]Additionally, having read them anyway, I do not think there is any reasonable prospect that they could now change the conclusion. While I appreciate that the claimant believes that “safeguarding”, involvement in “welfare” or “duties of care” are potential routes to liability under the Equality Act 2010, I do not agree. That was the essence of his argument at the preliminary hearing too, but those issues are irrelevant to the test arising from section 41 of the Equality Act 2010. Despite some encouragement, the claimant did not really grapple with that test during the original hearing and his application for reconsideration does not really attempt to apply it either.[8]Even allowing for the content of the additional documents, there is no reasonable prospect that the two main parts of my reasoning on the application of section 41(5) would change.a. The claimant’s work was made available to him, with only very limited and specific exceptions, by BAM Nuttall Limited rather than UKRI.b. The claimant was not supplied to UKRI under a contract between BAM Nuttall Limited and UKRI. Error of law by omission to consider Part 3 of the Equality Act 2010[9]The only omission was the claimant’s failure to argue this point. The sole live issue regarding the potential liability of UKRI under the Equality Act 2010 was whether section 41 applied on the basis that UKRI was the “principal” and the claimant was supplied to them as a contract worker in accordance with section 41(5). No other potential route to liability was argued. I do not think that I made an error of law by omitting to consider a point that was not raised by the claimant.[10]The claimant did not rely on section 29 (provision of services) or any other section of Part 3 of the Equality Act 2010, and that approach would in any event have been misconceived because it could not give rise to a claim in an Employment Tribunal, even if otherwise well-founded. An Employment Tribunal only has jurisdiction in relation to alleged breaches of Part 5 (“Work”) or related contraventions of sections 108, 111 or 112 (see section 120 of the Equality Act 2010). Therefore, the “omitted” point had no prospect of success anyway. It is not a basis for reconsideration. Functional control relevant to s.41[11]I refer to the reasons already given in relation to:a. the admission of additional evidence on reconsideration and Ladd v Marshall principlesb. the two aspects of my reasoning summarised in paragraph 8 (a) and (b) above.[12]This ground fails for both reasons.[13]The evidence heard did not support a finding of “functional control” by UKRI and this ground is largely an attempt to reargue my conclusion on the test in section 41(5). It does not deal with the difficulty that, on my findings, UKRI did not themselves make work available to the claimant, or that the claimant was not supplied to UKRI under a contract between UKRI and BAM Nuttall Limited. Either or both of those points remain fatal to the claimant’s reliance on section 41.
Conclusion
[14]For those reasons, the application for reconsideration is refused under rule 70(2), without a reconsideration hearing or further submissions from either side.