Ms J Oliver v Service Care Solutions Ltd and London Borough of Lambeth: 6019335/2024
JUDGMENT
[1]The breach of contract claim is not well founded. The claim fails. Documents[2]I had available to me a bundle of 190 pages from the Respondent, a bundle of 60 pages from the claimant and witness statements from the claimant and three respondent witnesses: Ms McInerney, Acting Director of Practice, Performance and Partnerships at the second respondent; Ms Barrett, Service Manager in the Practice, Evaluation and Audit team at the second respondent; and Mr Holland, Head of Social Care Division for the first respondent.[3]Towards the end of the hearing it came to light that the claimant had not read Ms McInerney’s witness statement, although it had been sent to her before the hearing. She had read the other two statements. Given the very short time available, I decided it would be in accordance with the overriding objective to avoid delay, save expense and deal with cases in a way which is proportionate to the complexity of the issue, to continue with the hearing rather than postponing it to enable the claimant to read the statement as there were two respondents, three respondent witnesses, and it would be at least five months until the case could be re-listed. Postponing would therefore have been disproportionate. The claimant had no questions for the respondent witnesses. Facts[4]The first respondent (“SCS”) is an employment business and agency. The second respondent (“Lambeth Council”) was SCS’s client. SCS has a contract with a company called Matrix, to supply temporary workers to Lambeth Council. On 12 August 2024, SCS arranged an interview for the claimant with Lambeth Council, for the role of Business Support Officer.[5]The claimant was successful in her interview and on 15 August 2024 Lambeth Council offered her the role. She accepted the role by telephone call to SCS.[6]The claimant then went through an onboarding process which involved various compliance checks. She received an undated letter from Lambeth Council which starts “Dear Agency Worker, Welcome to Lambeth council. We hope you enjoy your engagement.” The letter contained information about starting work. The claimant signed it on 6 September 2024.[7]The claimant also received a document from SCS entitled “Assignment Details Form” (ADF). This starts with the words: This Assignment Details Form is dated as of 23/08/2024 and confirms the particulars of the agreed placement. PLEASE NOTE: This is not an contract of employment. This should be provided by the Limited Company supplying the Agency Worker.[8]The ADF goes on to list various information in a table. The table refers to Sapphire DNP Limited of Bramhall House, 14 Ack Lane East, Bramhall, Stockport, Cheshire, SK7 2BY 10007617 as the limited company contractor. The claimant is listed as the “Agency Worker supplied by the limited company” and Lambeth Council is listed under “Name of the Hirer”. The ADF says that the start date of the assignment is “to be confirmed”. It also says that either the employment business or the agency worker may terminate the assignment by giving immediate notice with no liability. The claimant signed this on 9 September 2024. She was expecting to start work at some point before 30 September 2024. There was no agreed start date.[9]The claimant confirmed in her evidence that she was told the role would be paid at £19 an hour. I accept her evidence on this point as it was consistent throughout her cross examination and it seems more likely than not that the rate of pay would be important information for SCS to convey to her at an early stage, and that it did so.[10]It was clear to the claimant that the role was offered to her on a temporary basis and that she would be an agency worker. The claimant agreed in her evidence that neither Lambeth Council nor SCS were (or were intending to be) her employer. The respondent’s case was that the intention was for the claimant to be employed by Sapphire DNP, an umbrella company, which would also administer her pay. The claimant was adamant that Sapphire DNP only managed her pay, but did not suggest that she had any other employer. In any event, the claimant did not complete the sign-up process for Sapphire DNP, and Sapphire DNP is not a party to this claim. The claimant was not an employee or a prospective employee of either the first or the second respondents or Sapphire DNP.[11]On 11 September 2024 Lambeth Council announced a freeze on recruitment and agency placements. The claimant’s recruitment was affected by this freeze. On 12 September 2024 Lambeth Council informed the claimant by telephone that the job offer had been withdrawn. It was withdrawn in direct response to the recruitment freeze and for no other reason. The member of staff who told the claimant that the job offer had been withdrawn was acting in accordance with Lambeth Council’s policy regarding the recruitment freeze. Her follow up email to the claimant on 26 September 2024 explaining the situation is written in professional and apologetic language. It explains that the only reason for the withdrawal of the offer is to do with business need and is nothing to do with the claimant’s capabilities or qualifications.[12]The claimant was greatly upset by the withdrawal of the role, particularly because she had expected the telephone call to be to tell her the start date of the role. She explained to the tribunal the significant effect the withdrawal of the job offer had had on her personally, emotionally and financially. Law[13]Under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, an employment tribunal may consider a claim by an employee against their employer for breach of contract, after their employment has ended.[14]Sarker v South Tees Acute Hospital NHS Trust [1997] IRLR 328 is authority for the proposition that if an unconditional offer of employment is made to a candidate and that offer is accepted, a contract of employment may exist between the parties, even where the candidate has not started work. If that offer is withdrawn an employment tribunal has jurisdiction to consider a breach of contract claim.[15]In James v Greenwich LBC [2008] I.C.R. 545, the Court of Appeal held that it was not necessary to imply the existence of a contact between an agency worker and a local authority end user to give business reality to the relationship between the parties because the payments from the local authority to the employment agency and the performance of work by the agency worker were explained by their respective express contracts with the agency.[16]Therefore, if an offer of a job is made to someone and then withdrawn, the employment tribunal is only able to award compensation if:a. The offer was an offer of employment, that is, that the candidate was due to become an employee of the company that made the job offer; andb. The conditions of employment were clear and unconditional. This includes that both the employer and the new employee knew the details under the contract, for example, the start date, the rate of pay, the job title, hours due to be worked, location, the notice period etc. Conclusions[17]I have concluded that there was no offer of employment and no contract of employment between the claimant and either SCS or Lambeth Council. The Assignment Details Form sets out the different roles of the parties. It demonstrates that SCS was the employment agency, Lambeth Council was the hirer, Sapphire DNP was the limited company due to supply the agency worker and the agency worker was the claimant.[18]Although I was not shown contracts between the three business parties, the ADF sets out their respective roles clearly. The claimant freely accepted that she was not an employee of either SCS or Lambeth Council. Although she may have been due to become an employee of Sapphire DNP, had she started the role, she was not because she did not complete the sign-up process for this, and in any event did not believe that Sapphire DNP was her employer.[19]The structure between the parties as set out in the ADF was clear. The parties’ expectations largely matched this structure, and it was, in reality, the proposed structure and relationship between the parties. Therefore, this is not a case where it is appropriate to imply a contract between the agency worker and the hirer to give business reality to the relationship between them.[20]The conditions of the role were not completely clear, because the start date was unknown, but as I have concluded there was no contract of employment, I have not gone on to consider the ramifications of the lack of start date.[21]As there was no contract of employment between the claimant and either of the respondents, the breach of contract claim must fail.[22]The employment tribunal is therefore not able to award the claimant any compensation as a result of the job offer being withdrawn. Approved by: