Mr M McCool v Ability Hotels (Edinburgh) Ltd: 8001495/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001495/2025

Between

Mr M McCoolClaimant

Ability Hotels (Edinburgh) LtdRespondent

Before

Employment Judge M A Macleod

Date 15 October 2025

JUDGMENT

The Judgment of the Employment Tribunal is that the claimant’s claim is struck out on the grounds that it lacks any reasonable prospect of success under Rule 38 of the Employment Tribunals Rules of Procedure 2024

REASONS

[1]In this case, a Final Hearing was listed to take place at Edinburgh on 10 October 2025 for the duration of 1 day.

[2]The claimant appeared on his own behalf, and Mr Bradley, advocate, appeared for the respondent.

[3]At the outset of the Hearing, I noted that a Joint Bundle of Productions had been presented by the respondent, following a slight delay during which Mr ETZ4(WR) Bradley had arranged for a loose set of documents to be presented in folders.

[4]I noted that the respondent had made an application for strike-out of the claim on the basis that it had no reasonable prospect of success, and asked Mr Bradley if the respondent insisted on this application. He confirmed that they did. I had observed from the Tribunal’s own administration file that the parties had been advised by letter dated 25 July 2025 that this application would be dealt with at the start of this Hearing.

[5]Mr Bradley then made a short submission, to which the claimant responded; as will be seen below, Mr Bradley then made a further submission, to which the claimant replied again.

[6]A short summary of the submissions follows.

[7]Mr Bradley’s primary submission was that in terms of Rule 38(1)(a) of the Employment Tribunals Rules of Procedure 2024 the claimant’s claim, as pled, has no reasonable prospect of success. The Tribunal is a creature of statute, and its jurisdiction is entirely statutory. As a result, the only claims which can be heard by the Tribunal are claims which are identified in a statutory provision.

[8]In this case, the claimant’s case is set out in the ET1, at 12, and is one of misrepresentation. This is the word which is repeated on 13, and it is stated that by misrepresentation the respondent induced the claimant to give up one job in order to take up employment with them.

[9]Mr Bradley argued that the Tribunal does not have jurisdiction to hear a claim of misrepresentation by an employer, as there is no statutory provision relied upon by the claimant. He has been unable to identify a claim which the Tribunal would have jurisdiction to hear, and this is to be contrasted with cases in which an unrepresented or unqualified claimant is frequently able to identify the statutory basis of, for example, an Equality Act claim.

[10]There is no legislation which provides him with a remedy. Even if the claimant’s allegations were proved, the claim would necessarily fail.

[11]In reply, the claimant said that he is not in a position to identify or point to statutory provisions. He said that his understanding of the case came from a completely different place than that of Mr Bradley.

[12]He argued that a contract was established between himself and the respondent, built on the recruitment practice of the respondent. While he could not identify a statutory provision to rely upon, he said that the law must require any company to be free of falsehoods and misleading information in carrying out their recruitment practices. Here the respondent required the contract to be written up as a 16 hour part time contract, which he was offered and accepted; the respondent then unilaterally changed the contract, and in the paperwork they used misleading and contradictory information.

[13]The claimant said that while he could not identify a particular Act or statutory law he was relying on, he believed that there must exist statutory legislation to require companies to be honest and transparent in their recruitment practices.

[14]Having heard from both parties, I raised with Mr Bradley the question of whether what the claimant had identified this morning as well as in his pleadings might be considered to be a breach of contract claim under the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994.

[15]Mr Bradley confirmed that while he anticipated that the Tribunal may have made a decision on his primary submission, and if the application were not granted on that basis, he would have an alternative position to put forward. Accepting that it may be appropriate to do that before I adjourned, he proceeded then to argue on 3 grounds that the claimant’s claim had no reasonable prospect of success even on this basis.

[16]If the Tribunal were to rule that this is a relevant claim under the 1994 Order, he said, his secondary submission is that the claim remains one which lacks any reasonable prospect of success

[17]Firstly, he argued that there was no contract because there was no agreement on the nature of the contract, based on the claimant’s case. On 18 July 2025, the Tribunal wrote to the claimant (37): “The claimant states in the claim form that he was offered a 16-hour contract. He is asked to provide details (and any supporting documentation) of when, who, and how the offer was made by the respondent and accepted by him.”

[18]In reply to that email, the claimant wrote on 21 July 2025 (39). He made reference to a number of documents in that email, and in particular to an email by Sarah Paterson to himself dated 1 April 2025, at 2252 (produced at 67). He noted that the subject of the email was “Invitation to Interview for GSA Position 16hrs at HBH Edinburgh Airport”. He said “This is what I regard as the offer, restating the job as a 16-hour position. While the subject repeats ‘invitation’, the content of the email confirms that I had been selected for the role, subject to pre-employment checks.”

[19]He went on to identify his reply at 0430 on 2 April 2025 (67) as his acceptance of the offer, affirmatively expressing his intention to take up the role as offered.

[20]The claimant stated, thereafter, that this amounted to a clear offer of a 16- hour contract made to him.

[21]Mr Bradley observed that this response did not answer the question put by the Tribunal, asking for details of the offer of a 16-hour contract. This was clearly an offer of a casual contract (67). There was no contract on the claimant’s case. It appears that there was no agreement as to the nature of the contract offered. It was a casual contract offered.

[22]Secondly, he argued that on the claimant’s pled case and the evidence relied upon, the contract lacked an essential term, namely consideration. Referring to the Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 1 All ER 433

, quoted with approval by the President of the Employment Appeal Tribunal in Mansfield Care Limited v Leah Newman and Ors, Rollandene Limited

[2024] EAT 128

at paragraphs 54 to 57.

[23]In that well-known Judgment, McKenna J stated that in consideration of a wage or remuneration, the ‘servant’ agrees to provide his own work and skill in performance of a service for his ‘master’. On the claimant’s case, Mr Bradley argued, there is no reference to consideration of wage or remuneration. Further, in the offer email, there was reference to a casual contract, which was inconsistent with a contract for service.

[24]The third point he made was that in Article 3 of the 1994 Order it states that any such claim must arise from the termination of the employment contract. Here, the claimant accepted (10) at box 4 that he did not commence employment for the respondent at all. There is no termination if the contract did not commence.

[25]Mr Bradley acknowledged that Sarker v South Tees Acute Hospitals NHS Trust

[1997] ICR 673

suggests that where an offer was withdrawn before commencement could give rise to a breach of contract claim. However, he distinguished that case from this one by observing that here there was no start date and no termination, whereas it was clear that the contract was terminated in Sarker, and there was a start date.

[26]The claimant replied by suggesting that Mr Bradley had argued the claimant’s case for him but that there were inaccuracies in what he said. He repeatedly referred to “a casual contract”, but in the email (67) the “a” was missing, which is pertinent to the misleading content of the email chain.

[27]The heading on all of the emails was “Invitation to Interview for GSA Position 16hrs at HBH Edinburgh Airport”. He said that when he was growing up his father had told him that a verbal contract was not worth the paper it was written on, and so he was focusing on what had been written down. The advert was for a 16 hour position, as was the interview. The title of the paperwork forming the email chain made reference to a 16 hour position.

[28]The body of the email of 1 April made reference, he said, to “casual contract”. The use of the word contract implies a number of things: that it’s a proper contract, that work will be required, that you are given access to employment rights and benefits, continuity of employment and the status of an employee. If the email had referred to “a” casual contract, or a casual worker, that would have been clearer, but the word “a” being omitted muddied the waters around the contract which was explicitly stated in the heading.

[29]He argued that that contract explicitly established his status as a worker under section 230 of the Employment Rights Act 1996 and the Tribunal absolutely has jurisdiction to hear the full argument. That applies even if the employment did not commence.

[30]Taking into account the terms of the advertisement and the interview, there was a discussion about wages (£12.10 per hour) and there was no casual worker agreement. Everyone knows, he said, that when you go for a job, unless it is a voluntary position or for a charity, wages and benefits are going to be discussed. Here they were discussed as a misleading inducement to accept a contract which was changed after acceptance. Discussion and Decision

[31]Having heard from both parties, and considered the submissions, I have reached the following conclusions.

[32]Addressing Mr Bradley’s primary submission, I have some sympathy with his argument that the claimant has not specified a statutory basis for his claim, and that his priority appears to be to complain about “misrepresentation”. Mr Bradley is of course correct in stating that misrepresentation is not, of itself, an expression of a claim which the Tribunal has jurisdiction to hear.

[33]The claimant was unable to provide any assistance to the Tribunal in this regard. He made clear that he was not in a position to identify a statutory basis for his claim. Essentially, his submission was that the law ought to prevent employers from treating people unfairly, and in particular from misrepresenting job offers to them, which then leads to an individual giving up a paying job in the expectation of receiving new employment.

[34]As I observed to the claimant during the Hearing, the question for the Tribunal in this case is not one of fairness, primarily, but of whether or not the respondent is said by the claimant, in his case, to have committed an unlawful act.

[35]However, the claimant maintained, in his submission, that he had been offered and had accepted a 16 hour contract by the respondent.

[36]As a result, it seemed to me that while the ET1 lacked detailed specification in the claim, it was possible that it could be interpreted as a claim of breach of contract, and therefore brought within the jurisdiction of the Employment Tribunal by the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994.

[37]Accordingly, I am not prepared to sustain the respondent’s primary submission, on the basis that the claimant’s claim is, in my interpretation, broader than a simple claim of misrepresentation, and may well be defined as a breach of contract claim.

[38]I cannot, on that basis, find that the claim has no reasonable prospect of success purely on the basis that there is no statutory basis for the claim. Mr Bradley referred in his submission to unqualified claimants often being able to define a statutory basis for complex discrimination claims under the Equality Act 2010, and made a comparison with the claimant’s failure to do so in this case. I understood that submission, but in practical terms, such a claim under the Equality Act 2010 would be the subject of an initial Preliminary Hearing convened by the Tribunal in order to clarify and understand the claims made by the claimant. In that Preliminary Hearing, it is the experience of the Tribunal that discussion with the claimant enables them, as well as the respondent and the Tribunal itself, to gain a better and clearer understanding of the claims made, and their relation to the statute. In this case, however, no such Preliminary Hearing took place, and therefore the comparison should not be taken to an unfavourable conclusion in relation to this claimant as he lacked the opportunity to engage in such a discussion with the Tribunal.

[39]However, I moved to consider the secondary submission made by Mr Bradley on behalf of the respondent in arguing that the claim has no reasonable prospect of success.

[40]The first argument Mr Bradley made was that the claimant himself has identified his claim in more detail in his response to the Tribunal’s letter of 18 July 2025, and in particular, has asserted that the offer was contained in the respondent’s email of 1 April 2025 (67), and his reply, forming an acceptance of that offer, was sent on 2 April 2025.

[41]In this process, where no evidence has been heard, it is necessary for the Tribunal to take the claimant’s case at its highest. While the claimant has not sought to amend his claim, it is legitimate in my view, particularly given the fact that the claimant is unqualified and is representing himself, to consider that this additional information should be taken into consideration as clarifying his claim as it would be heard by the Tribunal.

[42]Mr Bradley’s argument is that the claimant’s response to the Tribunal did not answer the question, which required him to provide details of the basis upon which he would argue that he was offered and accepted a 16 hour a week contract of employment.

[43]There are two points here: firstly, the claimant’s reliance upon the offer and acceptance which he says was contained within that email exchange, and whether that amounted to an averment which could support his claim that there was a breach of a contract; and secondly, the claimant’s reliance, inevitably, upon the terms of the email from the respondent which contained the offer itself. 43. It is appropriate to consider here the well-known case of Ezsias v North Glamorgan NHS Trust

2007 ICR 1126

CA, which provides helpful guidance in considering whether to strike out a claim involving whistleblowing allegations, and said that the same approach should be taken in such cases as requires to be taken in discrimination claims, which require an investigation to be conducted into why an employer acted in a particular way. It was stressed that only in an exceptional case will a case be struck out as having no reasonable prospect of success where the central facts are in dispute. The Judgment stated: “It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level.”

[44]In this case, it is appropriate, as Mr Bradley suggested, to consider not only the pleadings but the terms of the offer and acceptance emails which the claimant relies upon, and which are therefore “undisputed contemporaneous documentation”. I stress here that I appreciate that the terms of the emails are undisputed, but their meaning is hotly contested.

[45]In the email of 1 April to the claimant, Ms Paterson of the respondent stated: “I would like to thank you for taking the time to come in last week and I believe you would be a great fit for our team and would like to offer you casual contract.”

[46]This email plainly formed part of a chain between the claimant and the respondent, under the heading “Invitation to Interview for GSA Position 16hrs at HBH Edinburgh Airport”.

[47]The claimant’s interpretation of this email was, as far as I could discern it, that the heading clearly showed that the offer was for a contract for 16 hours per week, and therefore that the meaning of “contract” was clearly implying that this would be an employment contract, granting employment status, continuity of employment and employee benefits.

[48]In my judgment, this is an unsupportable interpretation of the email. In reading an email in these circumstances, it is important to read the whole email, and to give effect to the natural meanings of the words used.

[49]The first difficulty for the claimant is that the heading does not, of itself, amount to part of the particular offer email of 1 April; it belongs to the chain of emails, and does not, in my view, add to our understanding of the terms of the offer.

[50]In any event, the heading does not refer to an offer of employment under a 16 hour contract of employment, but to an invitation to interview for a GSA 16 hours position at the hotel. It cannot bear the interpretation which the claimant seeks to place upon it.

[51]In the body of the email itself, there is no doubt that the respondent made an offer, and the claimant does not dispute its terms. The words “offer you casual contract” are at the heart of the offer. The claimant’s observation about the omission of the “a” before “casual” is incomprehensible; there is no basis upon which the meaning of that sentence would be altered if the word “a” were included within it.

[52]The email is, in my view, clear and unambiguous: it offers the claimant a casual contract, which is understood to mean a contract in which there are no set hours and no guarantee of pay. What the claimant subsequently received, and objected to, was a contract which was in terms a “zero-hours” contract, in which no guarantee of hours was given. But that was not the contract upon which the claimant sought to rely. Here, he maintained that he accepted the offer which was made. He did not decline the offer or defer a decision until he had had time to clarify any ambiguity.

[53]I cannot make any findings in fact about the conversations which may or may not have taken place between Ms Paterson and the claimant about the different contracts which were or may be available. However, taking the claimant’s claim at its highest, he relies upon this exchange of emails as being the offer and acceptance of the contract he wishes to enforce.

[54]Mr Bradley also argued that there was no consideration referred to in the offer, and this is correct. The claimant does assert that that was dealt with elsewhere, and of course the respondent’s position is that it was clarified in writing in the subsequent contractual terms provided to the claimant.

[55]His third argument was that since there was no termination of the contract of employment, since the claimant did not commence employment at all as he did not take up any offer, such as it was, with the respondent, there is no jurisdiction for the Tribunal to hear the claim under the 1994 Order. Mr Bradley helpfully referred to the Sarker decision, and sought to distinguish it from the current case.

[56]Having reflected on all of these arguments, it is my finding that the claimant’s claim, as set out in his ET1 and clarified by his response to the Tribunal’s letter of 18 July, and relying upon the undisputed contemporaneous offer and acceptance of 1 and 2 April, has no reasonable prospect of success. Even if he were to prove the terms of the offer and acceptance, there is no reasonable prospect that that would lead the Tribunal to conclude that the respondent had contracted with him to become an employee working a minimum of 16 hours per week, and thereafter breached that contract. It is important to note that this is the basis upon which this claim is brought, and the contemporaneous evidence does not support the claimant’s argument, fundamental to his complaint, that there was a contract to this effect with the respondent.

[57]It is therefore my conclusion that on the basis of the above the claimant’s claim must be struck out under Rule 38 of the 2024 Rules of Procedure on the basis that it lacks any reasonable prospect of success.