Employment Tribunals

Case No: 3200960/2018 1 mf EMPLOYMENT TRIBUNALS Claimant: Mr B Philcox Respondent: Railscape Ltd Heard at: East London Hearing Centre On: 25 October 2018 Before: Employment Judge Goodrich (sitting alone) Representation Claimant: Ms K James (Partner of Claimant) Respondent: Mr M Hayes (Managing Director of Respondent) JUDGMENT The judgment of the Employment Tribunal is that the Claimant’s complaints were presented out of time. It was not reasonably practicable for them to have been presented within the time limit and it was presented within a reasonable period thereafter. REASONS The claim and the issues 1. The background to this preliminary hearing is as follows. 2. The Claimant first submitted his Employment Tribunal claim on 9 May 2018. Before doing so he had obtained ACAS Early Conciliation covering the period from 28 February to 13 March 2018. 3. The name of the Claimant’s representative given on the claim form was Ms Kimberley James. She is the partner of the Claimant. Case No: 3200960/2018 2 4. The Claimant’s claim is for unfair dismissal, holiday pay and notice pay. Details of the claim were given in the claim form. 5. There was a problem with the Claimant’s claim form. The name of the Claimant’s employer was given as being Michael Hayes in the ET1 claim form. The name of the person contacted under ACAS Early Conciliation was given as Railscape Ltd. 6. As a result of the discrepancy between the name on the ACAS Conciliation Certificate and the name on the claim form, the claim was rejected by the Employment Tribunal. 7. A letter dated 15 May 2018 was sent to the Claimant notifying him of the rejection of the claim form. 8. On 4 June 2018, the Tribunal received a re-submitted claim form. The Claimant had crossed out the name of Michael Hayes and put instead Railscape Ltd so that the names on the certificate and ET1 claim form for the Respondent matched. 9. The claim was accepted. 10. The Judge considering the claim form had also calculated that the claim was out of time, as the time limit for submitting the claim, even taking into account the extension of time provisions under the ACAS Early Conciliation legislation, was 1 May 2018. 11. The claim was listed for a three hour preliminary hearing in order to consider the question of whether the claim was in time and whether time limits should be extended. A letter was sent to the parties explaining that the Claimant would need to explain why it was not reasonably practicable to submit the claim in time and if it was not reasonably practicable, whether it was reasonably practicable to submit the claim within a reasonable period thereafter. 12. The case was initially listed to be heard in August. Because of insufficient judicial resources, however, the parties were sent away and the case was re-listed for today. 13. Meanwhile, the Respondent had entered an ET3 response filed by the human resources organisation that provides employment advice to them. Various points were made in the ET3 response. One of them was that the claim was out of time. Another was that the Claimant was at no time employed by the Respondent. They also gave their account of the circumstances under which the Claimant was dismissed from working for them. 14. The issue for me today at this preliminary hearing, therefore, is to consider whether in the circumstances of this case time limits should be extended. The relevant law 15. Under Rule 12(1)(e) of the Employment Tribunals Rules of Procedure, an Employment Tribunal claim will be rejected if the name of the Claimant on the claim form is not the same as the name of the prospective claimant on the Early Conciliation Certificate to which the early conciliation number relates. There is a saving clause which allows the Judge to allow the claim if he or she considers that the Claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim; but this was not applicable in this case. Case No: 3200960/2018 3 16. Rule 13(4) of the Employment Tribunal Rules provides that if the Judge decides that the original rejection was correct but that the defect has been rectified, the claim shall be treated as presented on the date that the defect was rectified. 17. The effect of Rule 13(4) is, therefore, that the date for presentation of the claim is taken as being the date that it was presented for the second time, namely 4 June 2018. 18. So far as time limits are concerned, section 111 Employment Rights Act 1996 provides than an Employment Tribunal shall not consider an unfair dismissal claim unless it is presented to the Tribunal before the end of the period of three months beginning with the effective date of termination, or within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months. 19. The extension of time limits provisions under Order 7 of the Employment Tribunals (Extension of Jurisdiction) Order 1994 are the same for breach of contract claims as for unfair dismissal claim. The Working Time Regulations also contain the same time limits requirements. 20. The statutory provisions that I have referred to are not, however the only relevant provisions. There are extension of time provisions contained in the early conciliation legislation. These have the effect of what has been described as “stopping the clock” whilst early conciliation is being undergone with ACAS; or by adding one month to the date that the early conciliation concludes provided that the claim was in time at the date early conciliation is started. 21. There has also been guidance given in numerous cases as to the approach Employment Tribunals should take in considering whether to extend time under these provisions. 22. In the case of Palmer and Saunders v Southend on Sea Borough Council [1984] IRLR 119 CA, it was explained that: “The meaning of the words “reasonably practicable” in section 111(2) lies somewhere between reasonable on the one hand and reasonably physically capable of being done on the other. The best approach is to read “practicable” as the equivalent of “feasible” and to ask “was it reasonably feasible to present the complaint to the Employment Tribunal within the relevant three months?” 23. In the Palmer and Saunders case the Court of Appeal went on to give further guidance on the sorts of factors a Tribunal should consider. They gave guidance that it is pre-eminently an issue of fact for the Employment Tribunal taking all the circumstances of the given case into account. The kinds of factors they suggest were such as: 23.1 What was the substantial cause of the employee’s failure to comply with the statutory time limit? Was he or she physically prevented, for instance by illness or a post strike or something similar? 23.2 Did the Claimant at the time of dismissal, and if not when thereafter, know that he had the right to complain of unfair dismissal? Case No: 3200960/2018 4 23.3 Was there any misrepresentation about any relevant matter by the employer to the employee? Was the employee being advised at any material time and if so, by whom? What was the extent of the advisor’s knowledge of the facts of the employee’s case and the nature of any advice they may have given him? 23.4 Was there any substantial failure on the part of the employee or his advisor which led to the failure to comply with the time limit? 23.5 What was the manner and reason for which the employee was dismissed, including the extent to which, if at all, the employer’s conciliatory appeals machinery had been used? The mere fact, however, that an employee was pursuing an appeal does not mean that it was not reasonably practicable for the application to be made in time. 24. Ignorance or a mistaken belief in respect of essential matters can be regarded as grounds for an Employment Tribunal to hold that a claim in time was not reasonably practicable if it can be shown that the ignorance or mistaken belief was itself reasonable. It will not be regarded as reasonable if it arises from the fault of the complainant in not making such enquiries as they reasonably should have made in all the circumstances. 25. In the case of Marks & Spences plc v Williams-Ryan [2005] IRLR 562 CA, it was stated that section 111(2) should be given a liberal interpretation in favour of the employee. The evidence 26. On behalf of the Claimant I heard evidence from Ms Kimberley James, the Claimant’s partner; and from the Claimant himself. 27. I heard from Mr Michael Hayes, Managing Director of the Respondent, although he did not give evidence in the witness box. At various stages, particularly when giving his closing submissions, Mr Hayes gave evidence and I have borne in mind what he said. Findings of fact 28. The Claimant’s partner’s explanation and that of the Claimant himself for submitting his claim late are as follows. 29. I have accepted the evidence given by all three individuals I have heard from as being truthful to the best of the witnesses’ recollections, although of course Mr Hayes was not the person who was submitting his case late, so would be less aware of the circumstances. 30. The Claimant lives with his partner Ms Kimberley James. 31. The Claimant has dyslexia. 32. Because of his dyslexia they decided that Ms James would represent him and she has taken all the relevant steps since the date of his dismissal. The steps to which I refer below were carried out by Ms James. She was the main witness today. Case No: 3200960/2018 5 33. The Claimant’s dyslexia were described both by himself and his partner as being relatively mild for reading and relatively severe for writing. 34. It was because of the Claimant’s lack of skills and confidence in reading and writing that he and Ms James arranged for her to act for him. 35. Mr Hayes challenged, at least to some extent, whether the Claimant’s dyslexia were as severe as was being claimed. He pointed, for example, to the need for the Claimant to have passed many job requirements in order to work for the Respondent; and to attend courses which, he said, required a greater ability to manage written materials than was being claimed. 36. The Claimant’s response was that he did receive help for aspects of his work requiring the skills. He stated that when going on courses (apart from one where he received no help and was unable to participate properly) tutors gave him help and that his supervisors and some colleagues were aware of his dyslexia. 37. I find the Claimant and his partner’s assessment of the extent of his dyslexia to be fair. My observation was that unless the Claimant was faking the extent of his limitations when reading out the affirmation card I gave to him (he read the first line of it before I took over by reading out in order for him to repeat my words), was that he struggled to read the first line fluently, although with time and haltingly he could do so. It may of course have been that he was reading less well than usual if nervous. Nonetheless, I do not believe he was deliberately overplaying his reading difficulties. 38. The Claimant’s partner, Ms James, has multiple sclerosis and restricted mobility. She has a wheelchair. 39. Ms James’s multiple sclerosis is generally fairly stable. From time to time she has periods of time which may last for several weeks or even months when she is more or less unable to move and is highly restricted. Stress, she believes, can be a factor in triggering such relapses. I do not have the medical expertise to say if this is the case, although it appears plausible. 40. Although in the past Ms James has done shop work, because of her multiple sclerosis she is not in work at present. 41. After the Claimant was dismissed from working with the Respondent they were short of money and could not afford legal advice. 42. As indicated above, the Claimant was dismissed on 19 January 2018. 43. Ms James sought to get advice through telephoning a Citizen’s Advice Bureau. She made some telephone calls to them for advice during the next two to three weeks. In one of those telephone calls, they advised her of the right to bring an Employment Tribunal claim. They also advised her to write a letter asking for the reasons for her dismissal. 44. In early February, as advised, Ms James wrote to the Respondent asking for the reasons for the Claimant’s dismissal. The Citizen’s Advice Bureau advisor had advised her to give 14 days for a response and she did so. Case No: 3200960/2018 6 45. Ms James, however, got no response from the Respondent to her letter. 46. Mr Hayes explained that he did not reply because the Claimant had not been an employee of the Respondent and did not want to prejudice the Respondent’s case. This advice was unsatisfactory in that the Respondent has access to advice from an advisor giving human resources advice who has been representing the Respondent in these proceedings (although I understand that the representative, who would otherwise have attended today, is ill so Mr Hayes was put in the position of needing to represent the company). 47. Ms James telephoned the Citizen’s Advice Bureau after the 14 days had elapsed and she had not got a response. 48. Ms James was advised to undertake ACAS early conciliation. 49. Ms James did as advised and on 28 February, as indicated earlier, started ACAS early conciliation. 50. The early conciliation was unsuccessful. ACAS issued an early conciliation certificate on 13 March 2018. 51. After receipt of the early conciliation certificate Ms James was unwell, having a relapse in her multiple sclerosis. She could not remember the exact amount of time that she was unable to take the matter forward. 52. After she had recovered sufficiently from her multiple sclerosis relapse she telephoned the Citizen’s Advice Bureau again. They advised her to submit an Employment Tribunal claim. She did so within a few days of her telephone conversation, taking a few days to draft the claim form. 53. Although Ms James asked the Citizen’s Advice Bureau for advice about the time limits, they did not advise her one way or the other. Ms James stated that she was told that if they got their advice wrong they could be in trouble. 54. Ms James believed, mistakenly as it turns out, that her claim was in time at the date it was presented on 9 May. 55. After the Claimant had received the letter of rejection to which I have referred above, she telephoned the Employment Tribunal and was told that the names on the certificate or claim form for the Respondent were different. As referred to above she crossed out the name of the Respondent and re-submitted the claim form. 56. In box 15 of the claim form Ms James provided some additional information explaining that she had changed the name because it did not match and that she was working for Railscape Ltd for whom the boss is Michael Hayes. She stated that she has sent this back as soon as she could but it was a Bank Holiday weekend and hoped it was okay. She signed section 15 as being 25 May 2018. 57. The re-submitted claim form was received on 4 June 2018 and accepted. 58. Bearing in mind the guidance to which I have referred in my summary of the law, was it reasonably practicable for the Claimant to have presented his claim in time? I have in mind particular the following factors: - Case No: 3200960/2018 7 58.1 The reason in part for the delay in submitting the claim form in time was Ms James’s illness, her multiple sclerosis relapse. 58.2 The Claimant knew of his right to bring an Employment Tribunal claim form although not the correct time limit. 58.3 I have considered whether her mistaken belief was reasonable. In the circumstances of this case, I consider that it was. There is no legal aid available for bringing Employment Tribunal proceedings. Both the Claimant and his partner were out of work. They could not afford to pay for legal advice. The Citizen’s Advice Bureau did not give them advice about the time limits. The issues of time limits are complicated, particularly with the effects of the early conciliation changes to the time limits. 58.4 Mr Hayes was also responsible for part of the delay himself by ignoring the letter sent to him rather than responding to it promptly. 58.5 Considering the extent to which the Claimant was at fault, I consider that they were doing their best in difficult circumstances. 58.6 On balance therefore, I find that it was not reasonably practicable to present the claim in time. 59. I have considered whether the claim was presented within a reasonable period thereafter. I find that it was. So far as what took place in the first place, it was an understandable mistake to have put the name of the managing director as being the name of the employer in the ET1 claim form and for it to have differed from that in the ACAS Early Conciliation Certificate. Ms James went to a Citizen’s Advice Bureau to obtain advice, contacted them throughout the period in question and followed their advice. In the difficult circumstances they were in she submitted the claim within a reasonable period after the time limit. 60. After I had given my decision, recorded above, I discussed with the parties the preparations needed for the full hearing of the case and made the following case management orders. Employment Judge Goodrich Date 16 November 2018 Case Number: 3200960/2018 mf THE EMPLOYMENT TRIBUNALS Claimant: Ben Philcox Respondent: Railscape Ltd Heard at: East London Hearing Centre On: 5 December 2018 Before: Employment Judge Burgher Representation Claimant: Ms K James (Partner of Claimant) First Respondent: Mr S Rahman (Counsel) JUDGMENT 1. The Claimant was not an employee of the Respondent. His claims for unfair dismissal and breach of contract are therefore dismissed. 2. The Claimant was a worker for the Respondent. His claim for accrued holiday succeeds. 3. A remedy hearing for the accrued holiday pay claim will take place on 18 February 2019 at 10am, if the matter is not otherwise resolved. REASONS Issues 1 At the outset of the hearing the Tribunal identified and refined the issues which are as follows: 1.1 Whether the Claimant was an employee of the Respondent. Case Number: 3200960/2018 2 1.2 Whether Claimant was a worker of the Respondent. 1.3 If the Claimant is an employee, whether he was unfairly dismissed. The Respondent maintained that if the Claimant was an employee he was dismissed by reason of conduct, namely inappropriate behaviour towards two other employees. If the Respondent established conduct as a reason, I would consider whether the dismissal was fair and reasonable in all the circumstances. 1.4 If the Claimant is an employee, whether he is entitled to notice pay arising from the termination of his contract. 1.5 If the Claimant is a worker, whether he is entitled to accrued holiday pay on termination of employment pursuant to the Working Time Regulations. Evidence 2 The Claimant gave evidence on his own behalf. The Respondent called Mr Michael Hayes, Managing Director, Mr Giles Scott, Director of Branchline Ltd and Ms Rachel Chapman, Contract Manager of the Respondent. All witnesses gave evidence by signed written witness statements and were subject to cross examination and separate questions from the Tribunal. The Claimant stated that he was dyslexic and I ensured that the relevant parts of all written documents where read out before reference was made to them. 3 In addition to the oral evidence, the Claimant invited me to read a statement from Mr Simon Sands dated 4 August 2018 and a signed letter and note from Mr Tilmann Sonntag dated 15 August 2018. I read these documents and informed the Claimant that they would have limited evidential value in view of the fact that the people concerned were not in attendance at Tribunal to attest to the veracity of the documents. However, it transpired that Ms Chapman’s evidence regarding how work was assigned and managed was consistent with the first three paragraphs of Mr Sonntag’s letter and paragraphs 3 and 4 of Mr Sands’ statement and as such I considered that the statements were supportive when determining the day to day operations between the parties. 4 I was also referred to relevant documents in a bundle of over 92 pages. There was an evident lack of contractual documentation regulating the relationships between the relevant parties connected with this dispute. In particular, Mr Hayes maintained that there was a clearly defined contractual relationship with Mr Sonntag but did not produce any documentation to evidence this assertion. This assertion was contrary to the contents of Mr Sonntag’s letter and Mr Sands’ statement both of which were produced well before the hearing. In making my findings I therefore drew inferences against the Respondent following lack of any the contractual documentation in this regard. Facts 5 I made the following findings of fact. Case Number: 3200960/2018 3 6 The Respondent provides the rail industry with services including arboriculture, environmental, building, fencing works and maintenance. It holds full trackside principle contractor status with Network Rail and his heavily regulated and audited under the Construction (Design and Maintenance) Regulations 2015. It is required to comply with extensive health and safety, quality and environmental management regulations and have management systems in place to demonstrate this. 7 In order to undertake it’s tasks the Respondent employs qualified operatives and contracts with several smaller companies and self-employed workers to do the work required. However, it is essential that all relevant operatives demonstrate the competencies required to be registered by Network Rail under the Sentinal Card to work trackside. The Sentinal Card was in effect a passport to allow operatives to work on the rail infrastructure across the UK. 8 Network Rail required the Respondent to sponsor all operatives it used on the rail infrastructure network. For identification purposes, this meant that sponsored operatives were required to wear the sponsoring company’s branded protective clothing. 9 The Claimant is an experienced tree surgeon. He responded to an advertisement placed by Mr Giles Scott in September 2013 for work. The Claimant was interviewed by Giles Scott, who at that time was working with Mr Sonntag. The Claimant was offered the chance to work alongside Mr Sonntag and Mr Scott in providing services as contractors to the Respondent. In order to do this the Claimant was required to pass a 3 day Personal Track Safety (PTS) training course provided by the Respondent. The Claimant passed this and was offered a ‘Contract of Sponsorship’ by the Respondent. The Claimant signed this document on 22 October 2013 and was then was sponsored by the Respondent and given a Sentinal Card issued by Network Rail. 10 Initially Mr Giles Scott, Mr Sonntag and others worked together in teams providing services to the Respondent and the individuals in the teams authorised Mr Sonntag to invoice the Respondent on their behalf under a single group invoice for the work done by all team members. According to Mr Scott, Mr Sonntag was better at accountancy and that is why he submitted the invoices on behalf of the teams. All individual team members who undertook the work were specifically identified on the schedule to the invoice and the email that accompanied the invoice. For example, the invoice of 6 November 2013 refers specifically to the Claimant in the schedule and the accompanying cover email that Mr Sonntag sent to the Respondent stated “…Attached please find the invoice for Ben Philcox, who worked at Ebbsfleet Station with Simon Pearce of Friday 01/11…” When Mr Sonntag was paid by the Respondent for the invoices submitted, he then transferred the relevant sums to the team members concerned. 11 Ms Chapman stated that under no circumstance was paperwork issued under a Purchase Order raised other than to Tilmann Sonntag. I find that this reflects the responsibility of assigning work to the COSS but does not impact on whether the sponsored workers were actually undertaking work for the Respondent. 12 The Contract of Sponsorship states that it defines the contractual relationship between the Respondent as Primary Sponsor for the Claimant regardless of his employment status i.e. directly employed/self employed, sub contractor, etc. It stated that it does not constitute a contract of employment or a contract for services and such Case Number: 3200960/2018 4 terms and conditions shall be covered under separate contractual arrangements. Under the Contract of Sponsorship the Respondent accepted 17 responsibilities and commitments related to health and safety, provision of PPE and training. Under the Contract of Sponsorship the Claimant accepted 12 responsibilities and commitments including compliance with health and safety, company policies, identification and reporting. 13 From the evidence provided, the Claimant’s first assignment was 1 November 2013. However, the Claimant was obliged to accept any work offered. He had also set up his own business ‘S & B Tree and Gardening Services’ (“S&B”) and was able to undertake work through his own business as he wished. 14 On 5 November 2013, the Respondent provided the Claimant with an induction where it provided details of its operational structure and gave the Claimant instructions regarding the relevant policies and issued the Claimant with a company identification card, track safety handbook, PPE and outlined the emergency arrangements. The Claimant was issued with a Network Rail Track permit that stated that his employer was the Respondent and that he must be supervised by a Rail Safety Leader (aka COSS). 15 The Claimant worked ‘on and off’ for the Respondent from 2013. He invariably accepted work when he was offered it but work was not guaranteed and there was no obligation on him to actually accept work offered. 16 The Respondent had no contractual obligation to actually provide any assignments to teams or individuals and there was no requirement for a team or individual to make itself available for work. In respect of the Claimant actually being assigned work, Ms Chapman instructed Mr Sonntag or Mr Giles where the team was expected to work including the start and finish times. It was necessary for Ms Chapman to assign work to Mr Sonntag or Mr Giles as they were designated as a Controller of Site Safety (COSS). However, a COSS could not undertake the work with any individuals they wished as Ms Chapman would only permit authorised workers sponsored by the Respondent to work in the team. Sole working was not allowed on the track and if an individual needed any time off during an assignment the Respondent expected to be notified of the reason. It was important for the Respondent to be able to demonstrate that they were aware who was trackside. Ms Chapman would also arrange for work to be checked and ensured that all relevant workers had the required training, updates and safety information. Each team that was provided with work was provided with a branded van which was supplied and fuelled by the Respondent with the necessary tools. The Respondent’s branded personal protective equipment (PPE) was provided and it was a requirement that it was worn. 17 The Claimant did not invoice Mr Sonntag for the work he did for the Respondent, whether trading as S&B or otherwise, and there was no contractual documentation specifying the nature of the relationship between Mr Sonntag, Mr Giles and the Claimant. This is to be contrasted with the position following the breakdown of working relationship between Mr Sonntag and Mr Giles in February 2016. Mr Giles was frustrated with the alleged lack of professionalism and poor management by Mr Sonntag and he established Branchline Limited to regulate his future relationships with the Respondent and members of the team. Mr Rahman, on behalf of the Respondent sought to refer to an unsigned “Branchline Limited Contract for Services” as evidencing the relationship that the Claimant had with Mr Sonntag and Mr Giles since 2013. The Case Number: 3200960/2018 5 Claimant had not seen or considered the contents of this 6 page document which must have been drafted in 2016 and, in view of Mr Giles’ evidence concerning alleged lack of professionalism and his reasons for stopping working with Mr Sonntag, it could not reasonably be relied to evidence the prior state of affairs. The Claimant had no dealings with Mr Giles since 16 February 2016 and he continued to work with Mr Sonntag, as required, working under the undocumented arrangements that existed prior to Mr Sonntag and Mr Giles parting company. 18 Having considered the above, I find that Mr Sonntag was the COSS and conduit for payments for work provided by the Claimant to the Respondent. This was underpinned by the sponsorship agreements and the mandatory Network Rail regulations relating to identification of workers and qualifications for track safety. 19 On 18 January 2018 the Claimant had discussions with Ms Chapman and Ms Rachel Merryweather, Respondent’s Supervisor complaining about comments that had been made about him. Mr Hayes was informed that Ms Chapman and Ms Merryweather felt threatened and intimidated by the Claimant’s alleged aggressive manner to them. Mr Hayes did not contact the Claimant to find out his version of events. However, he contacted Mr Sonntag on the evening of the 18 January 2018 to inform him that the Claimant would no longer be used for any of the Respondent’s work. The Claimant was not required to undertake any further work for the Respondent from 19 January 2018. Law and conclusions 20 Section 230 of the Employment Rights Act 1996 states: (1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. (3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under) – (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; 21 Therefore, the starting point for my consideration is whether there is a contract, express or implied, between the Claimant and the Respondent. If there is such a contract consideration of whether there is a contract of service. If there is not a contract Case Number: 3200960/2018 6 of service, consideration will be given to whether there is work undertaken by the Claimant requiring personal service. Contract 22 In view of my findings of fact set out above, I conclude that there was contract between the Claimant and Respondent to undertake work. This was the reality of the arrangements. The contract was underpinned by the sponsorship agreement and evidenced by the operational oversight that the Respondent had over the work being undertaken by the individuals in the teams concerned. The work was monitored and signed off by the Respondent’s managers and supervisors. Further, the Network Rail Regulations were such that Claimant, whether an employee, worker or genuinely self employed, could not have worked for the Respondent on his own. The regulations were such that work had to be assigned to a COSS and the Claimant had to work with a COSS. Further, a COSS could not assign work to any individual who was not identified, trained and approved by the Respondent to do the work. The work undertaken by the Claimant was specifically identified on the invoices submitted by Mr Sonntag and then approved for payment. There was no documentation pointing against there being a contract between the Claimant and the Respondent nor was there any documentation specifying the nature of the relationship between Mr Sonntag and the Respondent or the Claimant and Mr Sonntag to support the suggestion that it was only Mr Sonntag who had a contract with the Respondent and that he separately contracted with others, including the Claimant. I accept the Claimant’s evidence of how he worked with Mr Sonntag and the Respondent in this regard. Employee status 23 As I have concluded that the reality is that there was a contract between the Claimant and the Respondent, I then considered whether there was a contract of service. I considered the case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 QB, where MacKenna J stated: “… a contract of employment exists if these conditions are fulfilled: (i) The servant agrees that, in consideration of wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, express or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.” 24 In respect of control MacKenna J stated that this: “includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in so doing it, the time when, and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant. The right need not be restricted.” 25 Mutuality of obligation is another quintessential ingredient of a contract of service. In the case of Carmichael v National Power PLC [2000] IRLR 43, the House of Lords held that mutuality of obligation was not present to entitle the two casual workers to be Case Number: 3200960/2018 7 granted employee status and that it was not deemed necessary to imply a clause into an agreement to this effect. 26 When the Claimant was working for the Respondent he was subject to their control in respect of the time he was to work, where he was to work, the tools he was to use and the standards of work required. I therefore conclude that he was subject to the control of the Respondent. 27 However, I do not conclude that there was the necessary mutuality of obligation in this matter. The Claimant worked ‘on and off’ for the Respondent and the Respondent was under no obligation to provide work. The Claimant was under no obligation to accept work and he set up his own business and was able to undertake his own work separately if he wished. 28 In respect of other relevant factors for consideration of employee status I had regard to the fact that the Claimant accounted for his own tax and national insurance, he was not subject to the Respondent’s disciplinary procedure nor given a contract of employment at the induction. However, he was provided with Respondent’s branded PPE and vehicle that he was required to use. 29 Having considered the above factors, given the absence of mutuality of obligation I conclude that the Claimant was not employed under a contract of service. He is therefore not an employee pursuant to section 230 of the Employment Rights Act 1996. 30 As the Claimant is not an employee, he is unable to pursue a claim for unfair dismissal or breach of contract in the Tribunal. His claims in this regard therefore fail and are dismissed. Worker status 31 When considering whether the Claimant is a worker, to pursue claims for accrued holiday pay, given my findings regarding the contract above, I am required to consider whether the Claimant was required to perform personally any work or services for another party. 32 I was referred to the Court of Appeal and Supreme Court Judgments in the Pimlico Builders cases ([2017] EWCA Civ. 51 and [2018] UKSC 29) and I also considered the Judgment of the Court of Appeal in the Uber cases [2018] EWCA Civ. 2748. 33 I have little difficulty in concluding that the Claimant was required to personally perform the work he was assigned to do. The Claimant did not believe that he could suggest a substitute and the regulations that the Respondent operated under, with the sponsorship system, induction requirements, Network Rail oversight and COSS supervision meant that the Claimant could not have proposed another tree surgeon to work in his place at any given time. The Respondent would only permit individuals it sponsored and authorised to work and as such would have prevented any substitute suggested by the Claimant from attending trackside. Case Number: 3200960/2018 8 34 The Claimant was therefore required to provide personal service for the work he undertook. He is therefore a worker for the purposes of section 230 of the Employment Rights Act 1996. Remedy 35 I did not have sufficient evidence to calculate the amount of holiday pay due to the Claimant. The Claimant is ordered to specify the amount being claimed for accrued holiday pay by sending a schedule of loss to the Respondent by 11 January 2019. The Respondent is ordered to notify the Tribunal by 25 January 2019 whether the remedy being sought by the Claimant is agreed. 36 If there is no agreement a remedy hearing is listed for 2 hours on 18 February 2019 at 10am. Documents for the remedy hearing must be exchanged by 1 February 2019. The Respondent is ordered to produce a supplementary remedy bundle for use at the remedy hearing. Witness statements for the remedy hearing must be exchanged by 8 February 2019. Employment Judge Burgher 27 December 2018 Case Number: 3200960/2018 mf THE EMPLOYMENT TRIBUNALS Claimant: Ben Philcox Respondent: Railscape Ltd Heard at: East London Hearing Centre On: 18 February 2019 Before: Employment Judge Burgher Representation Claimant: Mr M Curtis (Counsel) First Respondent: Mr S Rahman (Counsel) REMEDY JUDGMENT 1. The Respondent is ordered to pay the Claimant the sum of £8,145.00 in respect his claims for annual leave under the Working Time Regulations 1998. REASONS Issues 1 At the outset the following issues were identified for determination of remedy: 1.1 What was the Claimant’s normal rate of pay. The Claimant asserted it was £100. Following evidence, the Respondent contended that the rate was £90. 1.2 The amount of days holiday to be accrued per year. The Claimant contended that he was entitled to 5.6 weeks pay based on 5 days per week. The Respondent contended that the Claimant did not work on bank holidays and as such the holiday entitlement should be reduced to reflect this. Case Number: 3200960/2018 2 1.3 Whether the award should be gross or net. 1.4 Whether the holiday pay claim extends back to the commencement of his work in 2013 or whether it should be limited to two years pursuant to the Deduction from Wages (Limitation) Regulations 2014. Evidence 2 The Claimant gave evidence on his own behalf. The Respondent called Mr Michael Hayes, Managing Director. 3 I was also referred to the documents in an 8 page remedy bundle provided by the Respondent. The documents show the comprehensive work records of the Claimant to the Respondent from 2016 to 2018. I expressed concerned that these documents were not before me at the liability hearing as they could have been relevant to my determination in my liability judgment that the Claimant was not an employee. However, having considered the documents further, I decided against reconsidering the liability judgment pursuant to rule 73 of the ET rules 2013 as the documents show that there were periods, albeit limited, that the Claimant was not working for the Respondent. Facts 4 The Respondent paid £100 to Mr Sonntag each shift the Claimant worked. The Claimant stated that he was then paid £90 for each day by Mr Sonntag. Had the Claimant been paid holiday I find a similar arrangement would have taken place and the Claimant would have received £90. The Claimant is therefore entitled to holiday pay at the rate of £90 per day. 5 For the remedy hearing, the Respondent provides comprehensive records of the Claimant’s work for them or on their behalf from 2016. The records show that the Claimant. 5.1 Did not work on the 15 bank holidays during that period; 5.2 Was noted as off for 7 days during that period; and 5.3 Was noted as sick for 2 days during that period. 6 The Claimant did not usually work for the Respondent on Saturdays or Sundays but over the 2 year period he worked for the Respondent on 9 of those days. 7 Whilst the Claimant stated that he worked on bank holidays at least half of the time his evidence was uncertain and was unsupported by any documentation to undermine the Respondent’s records. I therefore find that the Respondent’s records reflect the days the Claimant worked. 8 There was therefore a period of 15 days over the 2 years where the Claimant was not working for the Respondent and as such the accrual of holiday is on the basis of 50.5 weeks a year. In the absence of other evidence I use this period as the calculation period for accrued holiday entitlement. This results in the following holiday calculations for the period. Case Number: 3200960/2018 3 8.1 1 November 2013 to April 2015 14 days 8.2 April 2014 to April 2015 27.5 days 8.3 April 2015 to April 2016 27.5 days 8.4 April 2016 to April 2017 27.5 days 8.5 April 2017 to January 2018 20.5 days 117 days total. 9 However, the calculation of 117 days above is not the same as the Claimant’s actual holiday entitlement under the Working Time Regulations 1998 which is addressed below. Law 10 Regulation 13 of the Working Time Regulations 1998 state: Entitlement to annual leave 1) Subject to paragraphs (5), a worker is entitled in to four weeks annual leave in each leave year. (2) … (3) A worker’s leave year, for the purposes of this regulation, begins— (a)on such date during the calendar year as may be provided for in a relevant agreement; or (b)where there are no provisions of a relevant agreement which apply— (i)if the worker’s employment began on or before 1st October 1998, on that date and each subsequent anniversary of that date; or (ii)if the worker’s employment begins after 1st October 1998, on the date on which that employment begins and each subsequent anniversary of that date. (4) Paragraph (3) does not apply to a worker to whom Schedule 2 applies (workers employed in agriculture in Wales of Scotland) except where, in the case of a worker partly employed in agriculture in Wales or Scotland, a relevant agreement so provides. (5) Where the date on which a worker’s employment begins is later than the date on which (by virtue of a relevant agreement) his first leave year begins, the leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (2) equal to the proportion of that leave year remaining on the date on which his employment begins. (6) – (8)…. (9) Leave to which a worker is entitled under this regulation may be taken in instalments, but— Case Number: 3200960/2018 4 (a)it may only be taken in the leave year in respect of which it is due, and (b)it may not be replaced by a payment in lieu except where the worker’s employment is terminated. 11 Regulation 13A of the Working Time Regulations provides for additional annual leave. It states: Entitlement to additional annual leave 13A.—(1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2). (2) The period of additional leave to which a worker is entitled under paragraph (1) is— (a) in any leave year beginning on or after 1st October 2007 but before 1st April 2008, 0.8 weeks; (b) in any leave year beginning before 1st October 2007, a proportion of 0.8 weeks equivalent to the proportion of the year beginning on 1st October 2007 which would have elapsed at the end of that leave year; (c) in any leave year beginning on 1st April 2008, 0.8 weeks; (d) in any leave year beginning after 1st April 2008 but before 1st April 2009, 0.8 weeks and a proportion of another 0.8 weeks equivalent to the proportion of the year beginning on 1st April 2009 which would have elapsed at the end of that leave year; (e) in any leave year beginning on or after 1st April 2009, 1.6 weeks. (3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days. (4) A worker’s leave year begins for the purposes of this regulation on the same date as the worker’s leave year begins for the purposes of regulation 13. (5) Where the date on which a worker’s employment begins is later than the date on which his first leave year begins, the additional leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (2) equal to the proportion of that leave year remaining on the date on which his employment begins. (6) Leave to which a worker is entitled under this regulation may be taken in instalments, but it may not be replaced by a payment in lieu except where— (a) the worker’s employment is terminated; or (b) the leave is an entitlement that arises under paragraph (2)(a), (b) or (c); or (c) the leave is an entitlement to 0.8 weeks that arises under paragraph (2)(d) in respect of that part of the leave year which would have elapsed before 1st April 2009. (7) A relevant agreement may provide for any leave to which a worker is entitled under this regulation to be carried forward into the leave year immediately following the leave year in respect of which it is due. (8) This regulation does not apply to workers to whom the Agricultural Wages (Scotland) Act 1949(a) applies (as that Act had effect on 1 July 1999). Case Number: 3200960/2018 5 12 Regulation 16 of the Working Time Regulations states: Payment in respect of periods of leave 16.—(1) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulation 13, at the rate of a week’s pay in respect of each week of leave. (2) Sections 221 to 224 of the 1996 Act shall apply for the purpose of determining the amount of a week’s pay for the purposes of this regulation, subject to the modifications set out in paragraph (3). (3) The provisions referred to in paragraph (2) shall apply— (a)as if references to the employee were references to the worker; (b)as if references to the employee’s contract of employment were references to the worker’s contract; (c)as if the calculation date were the first day of the period of leave in question; and (d)as if the references to sections 227 and 228 did not apply. (4) A right to payment under paragraph (1) does not affect any right of a worker to remuneration under his contract (“contractual remuneration”) and paragraph 1 does not confer a right under that contract. (5) Any contractual remuneration paid to a worker in respect of a period of leave goes towards discharging any liability of the employer to make payments under this regulation in respect of that period; and, conversely, any payment of remuneration under this regulation in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period. 13 Regulation 30 of the Working Time Regulations states: Remedies 30.—(1) A worker may present a complaint to an employment tribunal that his employer— (a) N/A (b) has failed to pay him the whole or any part of any amount due to him under regulation 14(2) or 16(1). 14 Given the above legislative provisions, this claim is for annual leave pursuant to regulations 16 and 30 of the Working Time Regulations. Contrary to the Respondent’s submissions, I conclude that the limitation of two years under section 23(4A) of the Employment Rights Act 1996 does not apply to this claim as this is not an unlawful deduction of wages claim. 15 When considering how far the Claimant can claim back, regulation 13(9) provides that the annual leave may only be taken in the leave year in respect of which it is due and regulation 13A(7) requires a relevant agreement to carry forward leave Case Number: 3200960/2018 6 entitlement into the leave year immediately following the leave year in which it is due. There was no relevant agreement in this case. 16 However, a distinction must be drawn between the period of annual leave (section 13 Working Time Regulations) and additional annual leave (section 13A Working Time Regulations). Regulation 13 arises from the Working Time Directive, and EU law, Regulation 13A does not. I was referred to the CJEU case of The Sash Windows Workshop Ltd v King [2018] IRLR 142 which addressed the limitation of claim under regulation 13. The CEJU addressed the following question in paragraph 48 of the Judgment: 48 By its second to fifth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave. 17 The CJEU answered this question at paragraph 65 of the Judgment: 65 It follows from all the foregoing considerations that the answer to the second to fifth questions is that Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave. 18 The effect of this judgment therefore is to disapply regulation 13 (9) and entitle the Claimant to a maximum of 4 weeks pay untaken annual leave for each year that he was prevented from being able to exercise his rights to paid annual leave. However, the Judgment does not apply to additional annual leave entitlement which is restricted by Regulation 13A(7). 19 In view of the above the Claimant’s annual leave entitlement is: 19.1 1 November 2013 to April 2015 10 days 19.2 April 2014 to April 2015 20 days 19.3 April 2015 to April 2016 20 days 19.4 April 2016 to April 2017 20 days 19.5 April 2017 to January 2018 20.5 days 90.5 days total 20 When deciding whether the payment should be made gross or net I considered the case of Rosewood v Bank UK/EAT/0053/16 which indicated that the tax position of any payment of an award extending back many years was one in which a Respondent should make enquiries with the Revenue. I understand that the Respondent has made enquiries with the Revenue in this case and as such I award the Claimant the gross sum on the basis that the Respondent will make the appropriate payments to the Revenue. Case Number: 3200960/2018 7 21 The Respondent is therefore ordered to pay the Claimant the sum of £8,145.00 (90.5 x £90) in respect of his Working Time Regulations complaint for annual leave. Employment Judge Burgher 19 February 2019