Miss E O’Halloran v Mr R Khodabux and NSSL Group Ltd: 6013530/2024
EMPLOYMENT TRIBUNALS
Case No 6013530/2024
Between
Miss E O’HalloranClaimantMr R Khodabux and NSSL Group LtdRespondent
Before
Employment Judge DickMr M Lansman (instructed by counsel) for claimantDate 9 May 2025
JUDGMENT
The claimant was an employee of the first respondent, within the meaning of s 83 Equality Act 2010, from 28 June 2024 to 14 August 2024. Approved by: Employment Judge Dick 9 May 2025 JUDGMENT SENT TO THE PARTIES ON 06/05/2025 FOR THE TRIBUNAL OFFICE Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they Case No: 6013530/2024 will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employmenttribunal- decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice- directions/ Case Number: 6013530/2024 1 EMPLOYMENT TRIBUNALS Claimant: Miss E O’Halloran Respondents:(1) Mr R Khodabux(2) NSSL Group Ltd Heard at: Watford On: 28 April and 9 May 2025 Before: Employment Judge Dick Representation Claimant: Mr M Lansman (counsel) Respondents: Mrs S Sodhi (legal executive) JUDGMENT having been sent to the parties on 5 June 2025, and reasons having been first requested on 21 May 2025 and that request having been clarified on 18 June 2025 in response to the query in the record of preliminary hearing also sent to the parties on 5 June 2025, in accordance with Rule 60 of the Employment Tribunal Procedure Rules 2024, the following reasons are provided: Introduction[1]I gave oral reasons for my decision on this preliminary point on 9 May 2025 having heard the evidence and submissions on 28 April 2025. Under rule 60(6) reasons given for any decision must be proportionate to the significance of the issue. In applying that rule I have taken account of the fact that these reasons were requested by the party which succeeded. Given that, and given also the agreement which I refer to below at para 4, I have not set out such a detailed summary of the law on employment status as I might otherwise have.[2]The issue for me to decide was set out in the Orders made by my colleague Employment Judge Michell on 4 March 2025 – whether or not the claimant was employed by either or both of the respondents in a housekeeper role during any of the period 28 June to 14 August 2024 (“the material time”). There was no dispute that the claimant worked over that period; the issue was whether in doing so the claimant was an employee or a contractor.[3]At the start of the hearing I was able to clarify some points with the parties. There was in fact no suggestion that at the material time the Case Number: 6013530/2024 2 claimant was employed by the second respondent so from now on, unless I otherwise make clear, I mean the first respondent when I say respondent. It was also made clear that there was no claim under the Employment Rights Act 1996 and in particular no claim of unfair dismissal. Since the unfair dismissal box was not ticked on the claim form, the parties agreed that there was no need for me to formally dismiss any such claim upon withdrawal. Although the claim form mentions constructive dismissal, it is clear in all the circumstances that this actually was a reference to a claim of discriminatory constructive dismissal under section 39 (2) and (7) of the Equality Act 2010. All the claims, therefore, are made under the Equality Act and so it will be the definition of employment (and therefore employee etc.) under section 83 of that Act which applies here. Wherever I say employee from now on, I am referring to that section 83 definition.[4]Although there was some dispute between the parties about the scope of the housekeeper role, in other words the precise nature of the claimant’s duties, the real issue, both parties agreed, was simply whether the claimant was required to do the work personally. If she was so required she was an employee for the purposes of the Equality Act and if she was not so required, she was not an employee. (Though see para 9 below for a qualification of this.) Applicable Law[5]The relevant part of section 83 of the Equality Act specifies that employment means employment under a contract personally to do work. As the parties agreed, and as is abundantly clear from a number of authorities, that section 83 definition is, in practice, indistinguishable from the definition of worker under the Employment Rights Act 1996.[6]I was taken to two cases in particular. First, Pimlico Plumbers Ltd and another v Smith [2017] EWCA Civ 51. (This was the Court of Appeal Judgment. Although the case went on to the Supreme Court, there was no suggestion that the passages that I am about to refer to are not good law.) I was referred first to paragraphs 74 to 83 of Sir Terrance Etherton MR’s Judgment, which related to the issue of whether a right for the “employee” to substitute another person to do the work or to perform the service is inconsistent with an undertaking to do so personally. In my judgment the following points emerge from Sir Terrance’s consideration of a number of previous authorities. An unfettered right to substitute is inconsistent with personal service and therefore inconsistent with employment. A requirement for an employer to consent to a substitution is clearly a fetter on the right to substitute and will therefore not necessarily be inconsistent with employment. However, a mere requirement for an employer to consent to the substitute, i.e. to the particular person to be used, as opposed to the substitution, will be inconsistent with personal service, even where there is an elaborate procedure for obtaining consent. It seems to me that all of that is consistent with the judgment in Halawi, which is the second case I will Case Number: 6013530/2024 3 refer to in a moment. Returning to Pimlico Plumbers, particular reliance was placed on paragraph 84 of that Judgment. I will not reproduce it here but the relevant part refers to five particular instances where a right to substitute may or may not be inconsistent with employment.[7]Also in Pimlico Plumbers at paragraph 124, this time in the judgment of Underhill LJ, a second stage of the test to be applied is identified, the first stage being whether there is a requirement for personal service but the second being whether the relationship is properly characterised as one between a business and its customer. That question will include questions of control, otherwise referred to as direction and subordination (paragraphs 94 and 115). Although that second part of the test is explicitly contained in the Employment Rights Act’s definition of worker, it is not, on the face of it, contained in the Equality Act definition which I am applying. However, it is clear from the Supreme Court’s Judgment in the same case ([2018] UKSC 29) that that second part of the test does also apply to the Equality Act, by incorporating the concepts of direction and subordination into the interpretation of the words “contract personally to do… work”, although the Supreme Court did also note that although subordination might help distinguish workers from other self-employed persons, it was not a universal characteristic of being a worker.[8]That same point emerges from the second case I was referred to, Halawi v WDFG UK (t/a World Duty Free) [2014] EWCA Civ 1387. EU Law includes a requirement that the putative employee agreed personally to perform services and that the putative employee was subordinate to the employer – essentially the two-stage test that I outlined in the previous paragraph.[9]Mr Lansman submitted on behalf of the claimant that it would be wrong for me to find against the claimant on the basis of that second limb because it had not explicitly been identified as an issue at the start of the hearing (though it was later raised in argument). In my judgment it is fair for me to consider that point because the issue of subordination was dealt with, practically speaking, at some length during the course of the evidence and I cannot see how it could be wrong to consider what the law makes clear is an essential aspect of the test that I have to apply. So I do go on to consider that point. Factual Findings[10]I find the following facts on the balance of probabilities. I do not seek to address every point in dispute between the parties, only those which are relevant to the issue that I had to decide. My findings are based on the witness statements, the oral evidence which I heard from the claimant and the respondent and documentary evidence, in particular a series of messages which were exchanged between the parties during June and August 2024. Case Number: 6013530/2024 4[11]The first respondent is the sole director of the second respondent. Before I turn to the material period, it is necessary for me to make findings on three particular issues relating to events before that period.[12]The first is the previous business relationship between the claimant and both respondents. The claimant had previously done cleaning bi-weekly at the offices of the second respondent (not at the first respondent’s home as was to happen later). That cleaning was done by the claimant and others, who are referred to as ‘the girls’ in messages exchanged between parties, and I will adopt the same label for the sake of clarity without meaning any disrespect to the women to whom I am referring. If there were ever any documents, either concerning the arrangements between the claimant and the girls, or between the claimant/girls and the second respondent, I was not provided with them. Mr Khodabux, I accept, was under the impression that the claimant ran a cleaning business. However, he conceded in cross-examination that he had no actual knowledge of the arrangement between the claimant and the girls. The claimant’s case was that it was an entirely informal arrangement. She describes them as “my team” in a text although that is, of course, how a member of a team might describe the team, just as how the leader of a team might describe it. The claimant’s evidence that it was essentially an informal band of cleaners was somewhat undermined in my judgment by the text she sent the respondent saying, “my current cleaning book is running at 4k [per month] (I’m not getting that as I have to pay the girls etc)”. The claimant’s evidence was that she was essentially exaggerating there for the purposes of pay negotiations. Ultimately, my findings on this point are as follows. I do accept that there were no formal arrangements, in other words, no company or written contract between the claimant and the girls, but I do find that the reality and indeed the respondent’s perception, was that the claimant had some sort of leadership role within that informal grouping.[13]The second point I need to consider before the material period is the non- working aspect of the relationship between the respondent and the claimant. I am conscious that that may or may not need to be the subject of findings at the main hearing and so I make the following very limited finding, about which there was in fact no dispute. In 2023 and 2024 there was some form of personal relationship between the claimant and the respondent. I use the term relationship there in a broad sense – there is no suggestion by anybody that they considered themselves to be a couple in a “formal” relationship.[14]The third point I need to make very brief findings on is that early in 2024 the respondent moved to a new home. He was experiencing various difficulties at that point in his personal and professional life including separation from the mother of his children and there is no need for me to set out any more detail than that.[15]I will now go on to consider some of the significant messages that were exchanged between the parties over the relevant period. I will consider Case Number: 6013530/2024 5 some in chronological order before I then go on to consider some other messages in the context of particular topics which I will identify.[16]On 21 June 2024 shortly after 8.00 a.m. the respondent messaged the claimant and said, “I got a new house in Hertford I need cleaning and few tasks done once a week - you any time like 4 hours I would say?”. It is clear from that and subsequent messages the same day that the nature of the work the parties contemplated there was cleaning and a few tasks. The claimant in reply described it as being “housekeeping style” which would include washing, ironing and running errands. On the basis that she had a slot coming up as another client was moving away, it was agreed that the claimant would go to the respondent’s house to “scope it out”. Pausing there, there was no suggestion made to me that, if this alone had been the basis or terms of the work that the claimant was doing, then the claimant would have had worker/employee status. What the claimant relies on further is a conversation that took place at the respondent’s home on 28 June, the day the claimant went over to scope out the house. The claimant’s suggestion is that the real agreement about the nature of the work was reached on that day. I expressly make no findings about whether there was any agreement about future work as a PA for the first or second respondent (that potentially being a matter for the main hearing) but I do find the following about the agreement made relating to the work that the claimant was going to be doing at the respondent’s home. I accept the claimant’s suggestion that the real agreement was reached on 28 June, at least so far as as the nature of the work was concerned, though it does not appear that the parties at that point reached an agreement on hours and pay. The nature of the work, in my judgment, was more than just the housekeeping etc. referred to in the 21 June text. I accept the claimant’s evidence that the respondent had said words to the effect of “I need you to run my life” and I also accept what the respondent says, which was that the claimant had said that she was “willing to look after him”. That may have been the claimant’s words but it is clear to me that the respondent agreed to that. That agreement, in my judgment, went beyond simply housekeeping but extended to the claimant helping the respondent manage aspects of his personal life. I based that finding on the contents of the messages that I will consider in a moment, but also upon the respondent’s evidence, which I paraphrase as follows: “she was willing to look after me was her words, she was here to support and look after me; if I needed anything, help with meals, food in the fridge”. As I have said, although those may have been the claimant’s words, the respondent agreed to them in my judgment. The respondent also said that he had previously had someone (i.e. a partner or a wife) who was able to do that for him.[17]I turn next to messages on 1 July, in which the respondent referred to a salary that he had previously mentioned. (Evidently this previous mention had been in a live/verbal conversation – both parties agreed that there were live conversations in between some of these messages, which of course I did not have transcripts of.) After the reference to the salary, the respondent’s message read: “ tbf [to be fair] you could still run your girls Case Number: 6013530/2024 6 on the side”. The claimant replied, asking about a job description and what the respondent was currently paying, and said: “[I will] take into account I won’t be on books and flexibility”. Shortly after that she made the comment I have already referred to about her current cleaning book running to about 4k per month. So it is clear that at this stage, no formal salaried role had been agreed.[18]On 11 July, the claimant says, the respondent asked her to add further days beyond what she says were the two already agreed. There is a message that day where the respondent asks if the claimant had another day with one or two hours free and extra time for ironing and washing and so on. In light of this and in light of the message of 17 July which I am just about to deal with, I accept the respondent’s suggestion that the claimant in fact started off doing one day per week but moved to two days a week around that point. That is made clear by that message on 17 July, where the claimant messaged a proposal with a list of tasks to be done on Mondays and Wednesdays, such as putting on a wash, stripping beds, doing bins, writing shopping lists and so on. The next relevant messages were exchanged on 28 July, in the context that the claimant had by now attended an interview for a job which is unrelated to this judgment (but related to the wider claim). The respondent said that he was thinking “it works good having the home and work PA stuff separated”. The claimant agreed. It was noted that the claimant currently did two days and the claimant said at that point, “I can make as many days free as you can afford”. The respondent observed that he wasn’t sure what he was currently paying and the claimant told him £25 per hour. Further messages that same day confirmed that the claimant had been working Mondays and Wednesdays, and the parties agreed to change the Monday slot from 2 hours to 3 hours. There are some other messages which are of particular significance on 7 and 11 August, which I will come to in a moment. More messages were exchanged up to 14 August but none of those are in my judgment relevant to my decision.[19]I will now deal with the evidence and my findings relating to four particular topics before concluding with some findings on miscellaneous points. Evidence and findings on the issue of substitution[20]I was referred to four particular sets of messages which were potentially relevant to substitution. The first set of messages were on 28 June, the same day as, but before, the conversation in which, I have found, the real agreement about the nature of the work was reached. As will be recalled, the claimant had agreed to come over to scope the place out, in the respondent’s words. The respondent sent the claimant a message telling her where to find the key and the claimant then said that she would have to shoot (i.e. leave) but would come later. She then explained shortly afterwards: “Sorry yeah had to shoot one of the girls needed a toilet and ended up in someone else's with guard dogs sorry.” The claimant’s evidence was that she thought she had taken one of the girls with her as Case Number: 6013530/2024 7 she was on her way to see another client. Clearly she was referring to one of “the girls” in the sense I refer to above. However, given that this was a “scoping” trip rather than a cleaning trip and also in particular that it was before any discussion in which the nature of the role was clarified, I find that these messages do not assist me on whether there was or was not a power of substitution during the relevant period.[21]The next relevant message the parties referred me to was on 1 July. The context is that the claimant had agreed to come over to the respondent’s home to discuss salary etc. The message reads, so far as is relevant: “Also bestie [i.e. friend] over from Ibiza can I bring her with me she's decent at ironing and just offering entertainment.” The claimant’s evidence was that she just wanted to show the home to her friend, who knew about her past with the respondent, and that her friend did not do any cleaning or work. Given the obviously flippant nature of that message, I find that it does not assist me with the issue of whether there was or was not a power of substitution in this case.[22]The next messages I consider were on 7 August. The claimant said: “I am not feeling well and have been throwing up all morning. And hardly slept a wink […], I won’t be able to come in today. If it leaves you in a tough spot, I can maybe arrange for one of my team to come in.” The respondent’s reply was “no it’s fine”. This only, in my judgment, assists to a very limited extent about whether there was a right to substitute. The claimant is offering to substitute, but rather than purporting to exercise a right, there is at least an implicit element of seeking permission and it is evident from later messages that at this point the claimant did not know whether she would be paid if she did not attend work. I find that that the claimant was not purporting to exercise a right to substitute. That does not necessarily mean, of course, that there was no such right; I return later to that point.[23]The next messages were on 11 August. The respondent asked the claimant if she was better. She told him she was “up and down” and that she was planning to come in Tuesday and Wednesday, which she assumed would not be an issue since he was away until Friday. The respondent replied, “It’s fine, don’t worry I will cover your shifts”. The claimant then said, “Also will I still be paid for Monday? With all the changes it’s now two days I have missed out on pay. Could you also let me know who is covering my shifts”. The respondent replied saying, “don’t worry about the work, [you are] not well. [I will] pay you for Monday […] Wednesday work do what you can no rush and take Monday and Wednesdays money”. The claimant then agreed that she would come on Wednesday. Again here, in my judgment, the claimant is not seeking to exercise a right of substitution. She is simply phoning in sick and asking permission to do the work on different days, or at least checking that the respondent had no objection to that. I consider that to be a neutral point when it comes to the issue of control which I will deal with in a little more detail later. It seems to me that it would have been a common courtesy for the claimant to check whether the respondent had any objection to Case Number: 6013530/2024 8 her changing her days given that she would be working in his home and that that point would apply whether she had an absolute right as a contractor to work whenever she chose or whether, on the other side of the spectrum, she was an employee.[24]One other point on substitution is that I accept the claimant’s evidence that there was in fact no time when someone other than her ever did the cleaning at the respondent’s house in the relevant period.[25]My overall findings regarding substitution are that while some of the claimant’s role could, in theory, have been substituted (such as cleaning) that would always, in my judgment, have been with the permission of the respondent, though he might not have been particularly interested in the identity of the substitute (subject to what I say in the following paragraph). But the other parts of the claimant’s role, in my judgment, could not be substituted. The claimant had no unfettered right to substitute. To the extent that there was a right to substitute, that was only when the claimant was unable to carry out the work and with the respondent’s agreement. In coming to this conclusion, I have considered what actually happened in practice. Evidence and findings on the issue of discretion and trust[26]In the initial messages of 21 June, the respondent made clear that a degree of discretion would be required from the claimant. He said that he did not want one specific person he had previously worked with to know about what was happening nor did he want anyone else to know. It is clear in the context that by “anyone else” he meant other people who had worked for him. The subject came up again on 24 June. The respondent elaborated on the need for discretion because he said that few people knew about the separation (see para 14 above) at that point. The claimant stressed her loyalty to him and her discretion and the respondent said that he trusted her. In my judgment this has some relevance to the issue of whether there was personal service required. It might not have been an issue if a stranger had attended in the claimant’s place because, of course, he or she would not have known anybody who the respondent would not want told. But equally the respondent might well have contemplated that if it was not to be the claimant then it would have been one of the girls. The girls had of course previously worked at the respondent’s, office so could conceivably, at least, know some of the people that the respondent did not want want told. So, to that extent, there was a particular requirement for discretion in this case.[27]On a similar note, a high degree of trust was placed in the claimant by the respondent during the course of her work at his home. She took her own pay, in other words, helped herself to the cash which she considered she was owed. (I should make clear that this was with the respondent’s agreement.) For example, there is a record of the claimant taking £500 in cash. She left a note for the respondent, accounting for just under Case Number: 6013530/2024 9 £500 of itemised expenses and pay for two days’ work. In another note the claimant explained that she had lost £50 around the house and had just taken it from another pile. All of this shows that the respondent was exercising a considerable degree of trust in the claimant and that has some particular significance in my judgment to the issue of whether personal service was required. Evidence and findings on the issue of control[28]The respondent says that the claimant chose what hours to work. The claimant says rather that she worked extra hours in addition to Mondays and Wednesdays. No particular issue was taken with that point save that the respondent recalled that she had only worked on nine particular occasions over the course of this engagement. I find the expectation was that the claimant was to work Mondays and Wednesdays. She could change those days, but only with the respondent’s agreement. Again, I do not find that that particular point greatly assists me on the issue of personal service. Given again that I am considering work taking place in someone’s home, It seems to me just as likely that a self-employed contract cleaner would seek someone’s permission to change their day as would an employee doing similar work. Evidence and findings on the issue of direction[29]On the subject of direction, I accept the claimant’s evidence that the respondent would sometimes ask her to stop one task and do another that he felt more urgent. Messages, for example one on 16 July, show the respondent giving the claimant a particular list of tasks. There was a therefore a degree of control there in the respondent directing what tasks the claimant was to carry out, although again, in the context of the sort of work being done in this case, one might expect that sort of degree of control as much for a contract cleaner as for an employee. The claimant also said that the respondent would praise the quality of her work (or the opposite). I do not accept that that assists me with the issue of whether there was control or not. Miscellaneous other findings[30]There is no dispute that the work being done was housekeeping in the commonly accepted sense. That included cleaning, but in my judgment it went beyond that that and, as the claimant said, included buying and collecting groceries from shops, taking calls, buying other items for the house, coordinating builders, hot tub maintenance etc. I further find that the work strayed beyond simply keeping house for the respondent and into organising aspects of his personal life.[31]There was no dispute that all the necessary equipment was provided by the respondent. The claimant was, it appears, paid sick pay although Case Number: 6013530/2024 10 that appears to me to have been on a discretionary rather than explicitly agreed basis.[32]In the claimant’s statement she said that around 3 July she decided to drop other clients to focus fully on the role. I do not accept that. It is clear from the messages that weeks after that, on 28 July the claimant was only working (or guaranteed to be working) two days per week. Also in her own oral evidence, the claimant told me that she did not trust the respondent at his word. So I do not accept that she would have dropped regular clients on that basis. But, even if the claimant was still running a business, the issue would be whether this work at the respondent’s home was a part of that or was a different sort of work entirely; I consider that the latter is right (see para 37 below). I do accept that the claimant would have been giving some consideration around this time to stopping working for her other clients.[33]Finally, I was referred to some messages on 16 July which I would characterise as a somewhat suggestive exchange about how much clothing the claimant would be wearing at the respondent’s home, given the temperature. The respondent attempted to persuade me that that showed that showed that there was not an employment relationship. I do not accept that. Plainly an employer and an employee might (as in this case) know each other personally as well as professionally. If they exchange texts which are not appropriate in the context of an employment relationship, that does not mean that there is not an employment relationship. The 16 July texts did not assist me on the issue I had to decide. Conclusions[34]There was an agreement, i.e. a contract, in this case. It was not simply an informal domestic arrangement. While there were clear elements of informality – the lack of any accounting, the lack of any invoicing etc. – there was an agreed hourly rate, paid in exchange for work done on a regular basis.[35]In the absence of a written agreement, I construed the terms of that agreement as I have already explained above, based upon the initial express verbal agreement and how the agreement then operated in practice. Given the short duration of the agreement and the relatively few occasions on which the claimant worked, that judgment is inevitably based on rather a small sample size but, nonetheless, I was able to make the findings that I have already set out.[36]In my judgment in this case there was a requirement for personal service. The nature of the work or the nature of at least some of the work was that it required the services of the claimant personally. In coming to that view I take particular account of: the degree of trust placed in the claimant Case Number: 6013530/2024 11 personally; the discretion that was required of the claimant; the fact that the work went beyond mere housekeeping and into organising more personal areas of the respondent’s life; and the findings I have already set out about substitution.[37]I therefore do have to turn to the issue of subordination. Was this the claimant’s business? I conclude it was not. The claimant was doing a different sort of work to the work done with the girls, whether or not she was still working with the girls. Although the work for the respondent included cleaning, that was only a part of it. The claimant was not in business as a housekeeper. It was not simply a case of the respondent saying: run my household however you see fit. Ultimately it is not a relationship that I consider could properly be characterised as one between a business undertaking and its customer.[38]For all of those reasons the claimant was, in my judgment, an employee of the first respondent within the meaning of the Equality Act 2010. Approved by: