Mr S Ozcelebi v Nissan Motor Manufacturing (UK) Ltd and Morson Human Resources Ltd: 6027176/2025
EMPLOYMENT TRIBUNALS
Case No 6027176/2025
Between
Mr S OzcelebiClaimantNissan Motor Manufacturing (UK) Ltd and Morson Human Resources LtdRespondent
Before
Employment Judge LaidlerIn person for claimantDate 27 February 2026
JUDGMENT
The claimant’s application for interim relief is refused. Approved by JUDGMENT on INTERIM RELIEF having been sent to the parties on 21 October 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunal Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]This was the Claimant’s application for Interim Relief. The ET1 was received on the 21 July 2025 following a period of ACAS Early Conciliation between the 25 September and 6 October 2025. The claim was issued on the 21 July 2025 following the termination of the Claimant’s engagement on the 14 July 2025. Evidence[2]Before the Tribunal today was a bundle of documents running to 426 pages and written submissions on behalf of the Respondents’. There was also four witness statements from the Respondents as follows: 2.1. For the First Respondent: Touhachi Hiromutsu, Body Design Manager; and Olga Timofeeva, Human Resource Business Partner; 2.2. For the Second Respondent: Becky-May Nelson, Recruitment Consultant; and Caroline Parr, Client Services Manager.[3]The witness statements were read but in view of the nature of the application the witnesses were not heard and not cross examined on their statements. No findings of fact are made.[4]Less than 24 hours before this Hearing the Claimant had disclosed covert recordings which the Tribunal has not listened to.
Background
[5]The Claimant accepts he was not employed by the Second Respondent but asserts that there was an implied employment relationship with the First Respondent. The Respondents produced a document that there was a tripartite agreement between Nissan, Manpower and the Second Respondent and assert that the Claimant was supplied to the First Respondent as an independent contractor under that agreement. The Second Respondent was responsible for payroll to the Claimant.[6]The Claimant seems to accept that but argues that the reality was that he was integrated into and was an employee of Nissan Motor Manufacturing (UK) Limited.[7]The Claimant’s role was as a Senior Engineer in the design of car structure. Schedule to the ET1 Claim Form[8]The Claimant produced a ‘Schedule of alleged protected disclosures and events supporting interim relief claim’ with the ET1 Claim Form, which has been considered. He has also applied for leave to amend his claim which has not been dealt with at this Hearing. The application for Interim Relief was dealt with on what had been put in the Claim Form and the document attached to it.[9]At paragraph 2, the Claimant acknowledged that the contract and pay slips were administered through the Second Respondent but he stated his dayto-day work, “…was directed entirely by Nissan, reporting to Nissan management and attending internal meetings as part of the teams.”[10]At paragraph 3, the Claimant asserted that Nissan was his employer but that he had joined the Second Respondent into the proceedings, “solely in its capacity as contractual agent and pay administrator.”[11]At paragraph 4, the Claimant accepted that his dismissal was by Nissan asserting that this had been following the protected disclosures he made, “about cost transparency and wrong procurement practices in Nissan.”[12]At paragraph 6, the Claimant stated that he raised to four managers, the cost of Nissan parts manufactured in Europe, highlighting that the, “supplier quotations often had inconsistent cost date” and that they were unable to discuss these transparently with suppliers on an “open book basis”.[13]He alleged that buyers and Commercial Managers stated the cost matters were their business and would be handled separately with suppliers.[14]At paragraph 8, the Claimant alleged he had questioned why a Nissan Leaf part was £2.70 higher than for the Juke.[15]At paragraph 9, the Claimant asserted that, “engineers should normally be able to engage in cost discussions with the technical department and suppliers”, but that at Nissan this was restricted to a single buyer within Nissan and a single Account Manager at the supplier.[16]It was the Claimant’s view that as, “cost is a critical factor … all stakeholders should understand how it is calculated and the rationale behind it.”[17]At paragraph 12, the Claimant stated he questioned the reason for buying certain parts from one supplier as opposed to another.[18]At paragraph 13, the Claimant alleges that it resulted in a £104,000 cancellation cost.[19]At paragraph 14, the Claimant asserted that he questioned the purchase of parts from a particular supplier alleging that he saved Nissan approximately €700,000.[20]In April 2025, the Claimant asserts that he and another were involved in the OBEYA Team cost reduction studies and that in a meeting in April 2025 with David Wilkinson, he “disclosed that supplier agreements were not transparent and that engineering were not permitted to challenge commercial terms.”[21]In June 2025, the Claimant alleges the buyers disregarded his requests for detailed cost breakdowns.[22]The Claimant alleged that on 1 July 2025 he was informed by Touhachi Hiromutsu of Nissan that his contract would be terminated and it was mentioned there had been complaints about his behaviour rather than his performance.[23]The Claimant states that on 8 July 2025 David Wilkinson told the Claimant that the commercial department had raised complaints about the Claimant’s behaviour.[24]At paragraph 25, the Claimant stated he believed that his dismissal was caused by repeated efforts to question improved cost management and procurement practices. Further Information[25]On 7 August 2025 the Claimant filed further details and added the legal breach that he said he had disclosed. He relied on a breach of a legal obligation (although which one is not stated), fraud, misuse of company funds, breach of fiduciary duty, obstruction of transparency and breach of procurement obligations. In providing further information the Claimant asserts his alleged disclosures to have been made on various dates in 2023, 2024 and 2025. The majority being in July 2025.[26]In his witness statement Mr Hiromutsu expressed the view that the Claimant wanted to be much more involved in the negotiation process with suppliers for the provision of parts. However, at Nissan the specification produced by the design and development team is shared with the purchasing team and it is their role to source potential suppliers externally and to negotiate costs on Nissan’s behalf. Whilst they appreciated the Claimant’s “enthusiasm” it was important to respect the purchaser’s role.[27]Mr Hiromutsu also stated that they may have used funds “inefficiently” (although he does not accept that they did) but that is a “business decision” and not the breach of a legal obligation.[28]On 25 February 2025 (page 290 of the Bundle), Claire Giraurdmaillet, Senior Engineer, sent an email to the Claimant and three others in which she asked the Claimant to show, “respect to Miquel and his team”.[29]On the same date (page 295), Claire sent an email to a Natasha Gordon (understood to be with the Second Respondent) to, “…report a degrading performance from my contractor engineer [the Claimant] over the past months. His mindset and engagement are not fully aligned with Nissan’s values and expectation. This has been raised to him on multiple occasions since November with variable improvement.” She asked that they look into a replacement.[30]In an email on 29 April 2025 (page 312), Claire stated that the situation with the Claimant was “critical”. Despite repeated warmings there had been, “further degradation to his behaviour” and gave examples. She ended her email by stating, “I cannot raise more of a red flag. Please help.”[31]At page 321 of the Bundle was an updated review of the Claimant which appears it might have been in November 2024. Whilst he showed strong performance in some areas there were others in which it was stated there was an, “evolving contribution / needs improvement”. It concluded, “good support to project for first half of the year. Degradation of the work for the second half of the year. Loss of motivation and engagement.” Relevant Law Employment Rights Act
Relevant Law
[32]The Claimant brings a complaint of unfair dismissal under s.103A claiming that the, “reason (or if more than one, the principal reason) for the dismissal is that [he] made a protected disclosure.”[33]His application for Interim Relief is made pursuant to s.128 which provides: 128. Interim Relief pending determination of complaint(1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii) paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or (b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met, may apply to the tribunal for interim relief.(2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date).(3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application.(4) The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing.(5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.[34]Taplin v Shippam Limited [1978] ICR 1068 confirmed that the Tribunal must ask whether the Claimant has a ‘pretty good chance’ of succeeding at the substantive Hearing. In subsequent cases this was said to mean not simply ‘more likely than not’ but to connote ‘a significantly higher degree of likelihood’. (Ministry of Justice v Sarfraz [2011] IRLR 562). This test applies to all aspects of the claim including employment status, (Hancock v Ter-Berg and Anr. UKEAT/0138/19).[35]The Tribunal is only to carry out a summary assessment on the material before it and is not making a final judgment.[36]For his s.103A dismissal claim the Claimant must show he was an employee under s.230(1) Employment Rights Act 1996.[37]He must show that he made qualifying disclosures within the meaning of s.43B Employment Rights Act 1996 which provides, 43B Disclosures qualifying for protection (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following- (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
Conclusions
[38]The Claimant has significant hurdles to overcome such that this Tribunal cannot find he is likely to succeed in his claim that the reason for his dismissal, or the principal reason, was that he had made protected disclosures.[39]He must establish employee status. The documents appear to indicate he was an agency contractor not employed by the First Respondent and that he had a relationship with the Second Respondent, to be supplied to the First Respondent. He accepts he was not employed by the Second Respondent. It will be a matter for a subsequent Hearing as to whether the Second Respondent should remain a party to these proceedings.[40]In seeking to establish that he made a protected disclosure, the Claimant needs to show what information he disclosed and whether it tended to show one or more of the matters listed in s.43B Employment Rights Act 1996.[41]The Tribunal does not find it likely that the Claimant can show he was making a protected disclosure within the meaning of statutory provisions. It finds it more likely that these were workplace discussions and the Claimant no doubt did feel that as an engineer he should be more involved in purchasing discussions. However, as the Respondents’ witnesses set out in their witness statements, that was not how the Respondent had chosen to divide up the tasks. The Claimant was expressing his opinions. He was not disclosing “information” within the statutory provisions.[42]It does not appear that at the time the Claimant was identifying any “legal obligations” he considered to have been or being breached. He now seeks to list various statutes which the Tribunal finds was a retrospective attempt to frame the issues he had with costings. It finds it highly unlikely he will be able to show that he reasonably believed at the time that he was communicating matters that fell within s.43B(1)(b) or (f) Employment Rights Act 1996. Reason for Dismissal[43]The documents appeared to show that there had been issues with the Claimant’s attitude and performance towards the end of the second quarter half of 2024. It is not likely on the documents seen, particularly from Claire Giraudmaillet of the First Respondent, that the Claimant will establish that even if he did make protected disclosures, they were the reason or if more than one the principal reason for his termination.[44]The application for Interim Relief fails as the test has not been met.[45]There will be a Case Management Preliminary Hearing listed to clarify the issues and deal with the application to amend. Orders in respect of that are contained in a separate document. Approved by:
Relevant Law
[52]I have already expressed my agreement with the appeal tribunal that, in this case, the mutuality of obligation approach in the Carmichael case and adopted by the tribunal in this case is not particularly helpful. As I have explained, the issue in the Carmichael case, which was not a tripartite situation, was whether there was an overarching employment contract or a series of contracts that were not contracts of employment. This case presents a tripartite situation with two express contracts, which are not contracts of employment,(1) between Ms James and the agency and(2) between the agency and the council. The issue here is whether, having regard to the way in which the parties have conducted themselves, it is necessary to imply(3) a contract of employment between Ms James as worker and the council as the end-user. 36. In McTique v University Hospital Bristol NHS Foundation Trust [2016] ICR 1155 EAT the court considered the proper construction of s43K(1)(a) ERA. It stated: 19. Section 43K provides an extended meaning of “worker” and “employer” for the purposes of Part IVA of the 1996 Act only and has no wider application. It was enacted primarily to protect agency workers provided to an end user in circumstances where the worker could not fulfil the stricter “limb (b)” requirements of section 230(3) by virtue of the absence of a sufficient contractual relationship with the end user. Its introduction was also specifically designed to secure whistleblowing protection for workers in health services in England, Scotland and Wales where the NHS has contractual arrangements in place that mean such workers otherwise fall outside the section 230(3) definition of “worker” for these purposes. The extended protection afforded in this regard is carefully identified and delineated... 20. Once it is established that an individual has been supplied by a third party to work for another person, a comparison must be made between the extent to which on the one hand the individual determines his or her terms of engagement to do the work, and, on the other hand, somebody else determines those terms in order to ascertain whether the terms of the worker extension in section 43K(1)(a)(ii) are fulfilled. If the individual substantially determines his or her terms in comparison with the others, they are not a worker under this provision. If the other person or persons substantially determine the terms, the individual is a worker for these purposes. The provision is focused on identifying who, as between the individual on the one hand and the other persons identified on the other, substantially determines the terms on which he or she is engaged to do the work. The question is answered by considering the situation as between the individual and the supplier, or the individual and the end user, or the individual and both the supplier and end user. A comparison between the supplier and the end user is not invited by the provision. 21. Since subsection (1)(a)(ii) expressly envisages that there may be two persons who substantially determine the terms on which the individual is engaged to do the work (the person who supplies the individual and the person for whom he or she works) the same must inevitably be true in relation to section 43K(2)(a) which defines the “employer” for these purposes. This provision defines employer as the “person” (which, by this stage, cannot be the individual) who substantially determines or determined those terms. Since as a matter of ordinary statutory interpretation the singular includes the plural, if both the supplier of the individual and the person for whom the individual works substantially determine the terms on which the individual is engaged to do the work then both are the “employer” of the worker for the purposes of this subsection. 22. Moreover, since both the supplier and the end user can substantially determine the terms and the subsection does not invite any comparison between how substantially the supplier of the individual determines the terms compared with how substantially the end user does so, there is no room for an interpretation of section 43K(1)(a)(ii) based on who determined “the majority of the terms” or “the most significant terms” as between the agency supplier and the end user. Where two parties (other than the individual) have between them determined the terms upon which an individual worked but have done so to different extents, each might nevertheless have substantially determined the terms. 37. Simler P (as she then was) summarised the correct approach to determining whether an individual is a ‘worker’ within the meaning of s 43K(1)(a). The relevant questions a tribunal should answer in sequence are: 38. In conclusion, in the hope that it will assist tribunals dealing with these issues, it seems to me that, in determining whether an individual is a worker within section 43K(1)(a) the following questions should be addressed. (a) For whom does or did the individual work? (b) Is the individual a worker as defined by section 230(3) in relation to a person or persons for whom the individual worked? If so, there is no need to rely on section 43K in relation to that person. However, the fact that the individual is a section 230(3) worker in relation to one person does not prevent the individual from relying on section 43K in relation to another person, the respondent, for whom the individual also works. (c) If the individual is not a section 230(3) worker in relation to the respondent for whom the individual works or worked, was the individual introduced/supplied to do the work by a third person, and if so, by whom? (d) If so, were the terms on which the individual was engaged to do the work determined by the individual? If the answer is yes, the individual is not a worker within section 43K(1)(a). (e) If not, were the terms substantially determined (i) by the person for whom the individual works or (ii) by a third person or (iii) by both of them? If any of these is satisfied, the individual does fall within the subsection. (f) In answering question (e) the starting point is the contract (or contracts) whose terms are being considered. (g) There may be a contract between the individual and the agency, the individual and the end user and/or the agency and the end user that will have to be considered. (h) In relation to all relevant contracts, terms may be in writing, oral and may be implied. It may be necessary to consider whether written terms reflect the reality of the relationship in practice. (i) If the respondent alone (or with another person) substantially determined the terms on which the individual worked in practice (whether alone or with another person who is not the individual), then the respondent is the employer within section 43K(2)(a) for the purposes of the protected disclosure provisions. There may be two employers for these purposes under section 43K(2)(a). In Day v Lewisham & Greenwich NHS Trust and another (Public 38. Concern at Work intervening 2017 ICR 917 CA Elias LJ agreed with the above observations stating: 11. I would make two preliminary observations about these definitions. The first is that, if the terms on which the individual is engaged are substantially determined by the individual himself, he cannot bring himself within this extended definition of “worker”. That is so even if the end user and/or introducer can also be said substantially to determine the terms of engagement. The second is that, if the terms of engagement are not substantially determined by the individual, his employer is the person who does substantially determine them. It is envisaged in section 43K(1)(a)(ii) that this may be both the end user and the introducer. That might be either because the introducer and the end user determine the terms jointly, or because each determines different terms but each to a substantial extent. Mr Reade submitted that notwithstanding that both introducer and end user may substantially determine the terms of engagement, the definition of employer in section 43K(2)(a) was limited to the person who played the greater role in determining the terms of engagement. He submitted that this follows from the reference to “the person” in that subsection. I see no warrant for restricting the scope of the section in that way. By section 6 of the Interpretation Act 1978 the singular includes the plural unless the contrary intention appears, and in my view, it does not do so here. Indeed, Mr Reade's construction involves giving a different meaning to “substantially determines” in subsection (1) than in subsection (2). Since both introducer and end user can in principle substantially determine the terms of engagement for the purposes of the definition of worker, I see no basis for concluding that they cannot do so when it comes to applying the extended definition of employer. This will in some cases have the effect that both introducer and end user are employers and each will then be subject to the whistle-blowing provisions. Indeed, that would seem to be an inevitable conclusion if the terms are determined by the end user and introducer acting jointly. If only one party can be the employer, it is difficult to see by what principle it would be possible to determine who that should be… 23. I agree with those observations in Tique. Accordingly, I would find for the claimant on the first ground. HEE could in principle fall within the scope of section 43K(2)(a) notwithstanding that Dr Day had a contract with the hospital trust. In my judgment when determining who substantially determines the terms of engagement, a tribunal should make the assessment on a relatively broad brush basis having regard to all the factors bearing upon the terms on which the worker was engaged to do the work. Submissions For the claimant 39. The claimant argued that his work was controlled by managers of the first Respondent and that in all respects (save his method of payment) he was treated the same as employees of the first Respondent and that that is what he was. He argued that the contractual documentation was really a ‘sham’. 40. Contrary to the suggestion that he was telling the first Respondent when he would take leave his position is that he was asking permission, as an employee would do. Although paid by the second Respondent under the Fieldglass system his timesheets had to be approved by managers of the first Respondent. 41. In relation to s43K the claimant submitted that according to Autoclenz the tribunal must look past the paperwork and the evidence supports his contention that he was controlled by the first Respondent. He could not substitute another worker. If the tribunal does not accept he was an employee of the first Respondent he was a worker. 42. The claimant accepted at the hearing of his interim relief application that he was not an employee of the second Respondent. He had not been prepared however to withdraw his claim against it. At this hearing he again stated that position. He said that he did want to withdraw against Morson but as they are part of the sham arrangement he is not prepared to do so until the decision of this tribunal on status. For the first Respondent 43. There was no direct agreement between the claimant and the first Respondent. The claimant asserts a ‘sham’ between the contractual parties, but has not really been able to expand on that argument. There is nothing that goes beyond what would normally be expected in a tripartite agreement of this nature. 44. Referring to James v Greenwich there is no basis for the tribunal implying a contract of employment with the first respondent. It is not necessary to do so. 45. There are two parallel systems at the first Respondent, one for employees and one for contractors. Holiday and sickness absence are managed differently and the Fieldglass system is used to pay contractors which is not a Nissan system at all. The claimant could not join the employee body and was not a member of any trade union. The email address and his identity card demonstrate he was an external contractor. The claimant did not request leave but told Nissan when he would be taking it. 46. The statutory test in section 43K has not been met either. The first Respondent did not determine the terms of engagement, it was so far removed that the gateway in that section is not met. All the contractual documents as to how the claimant was to perform were not determined by Nissan. For the second Respondent 47. Counsel had handed up written submissions which are not recited again here. The claimant had conceded he was not an employee of the second Respondent. 48. At submission stage it was conceded that the claimant was a s230(3)(b) ‘limb (b)’ worker of the second Respondent. However, it was argued that this does not assist the claimant in his claim. In the List of Issues finalised at E J Russell’s hearing (or the claimant’s proposed amendment which has not been determined) there is no suggestion that the claimant made protected disclosures to the second Respondent or that they knew he had made such and treated him detrimentally as a result. An application was made that the claims therefore be struck out as against the second Respondent so that it does not have to incur any further unnecessary costs in this matter. The claimant’s response to that application has been noted above. Conclusions The first Respondent 49. The claimant was not an employee of the first Respondent. It is not necessary to imply a contract of employment between the claimant and it. The contractual documentation shows clearly the tripartite agreement that existed and following the line of authorities as set out above the tribunal does not need to imply any other contract between the claimant and Nissan. 50. As said in James ‘in the agency worker cases the problem in implying a contract of service is that it may not be necessary to do so in order to explain the worker's provision of work to the end-user or the fact of the end-user's payment of the worker via the agency. Those facts and the relationships between the parties are explicable by genuine express contracts between the worker and the agency and the end-user and the agency, so that an implied contract cannot be justified as necessary…’. That is exactly the position in this case. It is not necessary to imply a contract to explain the provision of work by the claimant for Nissan as that is explained in the contractual documentation. 51. Was the claimant a worker of the first Respondent applying s43K? He was introduced or supplied to do the work by a third party – the second Respondent and Manpower. The terms upon which he was engaged were not determined by him. 52. The more difficult question within the statutory framework is whether those terms were substantially determined by the first Respondent, by a third person or by both of them? The submissions on behalf of the first Respondent are accepted. Those terms were not ‘substantially’ determined by Nissan. They were determined by the second Respondent and to an extent Manpower. Even if the claimant overcame that hurdle in that they were determined by a third party he is not assisted by the definition of ‘employer’. Nissan cannot be the employer within the meaning of section 43K(2) as it did not ‘substantially determine the terms on which he is or was engaged’.
Conclusions
[53]As the claimant is neither an employee or worker of the first Respondent his claims must fail and are dismissed. The second Respondent[54]The second Respondent has rightly conceded that the claimant was a limb b) worker of it within s230 ERA. As such s43K is of no application.[55]The tribunal accepts that in the list of issues (or the amendment application) there is no claim against the second Respondent and it is therefore only in accordance with the overriding objective that it now be dismissed from these proceedings. Approved by: