Mr C Oliveira v ASA International Ltd and The City of Edinburgh Council: 4109715/2021
| Judgment Date | 08 November 2021 |
| Citation | 4109715/2021 |
| Date | 08 November 2021 |
| Published date | 12 November 2021 |
| Court | Employment Tribunal |
| Subject Matter | Public Interest Disclosure |
E.T. Z4 (WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
In the Employment Tribunal (Scotland) at Edinburgh
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Judgment of the Employment Tribunal in Case No.4109715/2021
Issued following an Open Preliminary Hearing Held In Person at Edinburgh
on 8 October 2021 at 10am with Deliberation on 15 October 2021
Employment Judge J G d’Inverno
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Mr C Oliveira Claimant
In Person
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ASA International Limited 1st Respondent
Represented by
Ms G Stevenson,
HR Manager
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The City of Edinburgh Council 2nd Respondent
Represented by
Ms K Sutherland,
Solicitor
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JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The Judgment of the Employment Tribunal is:-
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(First) that the Tribunal lacks jurisdiction in terms of section 48(3) of the
Employment Rights Act 1996 (“the ERA”) to consider the claimant’s
complaint, in terms of section 47B of the Act of having suffered detriment on
the grounds of protected interest disclosure and the claim is dismissed for
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want of jurisdiction; and
(Second) the Tribunal lacks jurisdiction, in terms of section 111(2) of the ERA
to consider the claimant’s complaint, pled in the alternative in terms of section
103A of the Act, of having been automatically unfairly dismissed; and the
claim is dismissed for want of jurisdiction.
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S/4109715/2021 Page 2
REASONS
In production
1. This case called for an Open Preliminary Hearing to determine the preliminary
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issue of the claimant’s title to present and the Tribunal’s jurisdiction to
consider his complaints, by reason of asserted time-bar.
The Nature of the Claims and Procedural Background
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2. The claimant was engaged by the first respondent as an agency worker. The
dates of that engagement are disputed, but it is clear that his engagement
commenced in 20 April/June 2020 and ended in November 2020. He was
assigned to work at the Drumbrae Care Home, which was operated by the
second respondent. Early Conciliation took place from 17 to 18 May 2021.
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The claim form was presented on 23 May 2021.
3. As confirmed and recorded in the note of output issued by Employment Judge
Sangster following the Closed Preliminary Hearing (Case Management
Discussion) which proceeded before her on 21 July 2021, the claimant seeks
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to give notice of complaints of having suffered detriment and/or dismissal as
a result of making a protected disclosure, and a complaint of unauthorised
deduction from wages, both in terms of the Employment Rights Act 1996
(“ERA”). Contrary to what appeared on the face of the initiating application
ET1 and again as confirmed by the claimant and recorded by Judge Sangster
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in the course at Closed Preliminary Hearing, the claimant does not give notice
of a complaint of victimisation under the Equality Act 2010, (“EqA”).
Alleged detriments relied upon
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4. The claimant gives notice of reliance upon the following alleged detriments
for the purposes of his section 47B ERA complaint;
S/4109715/2021 Page 3
a. Being informed, on 7 November 2020, that all his booked work (days and
nights shifts) had been cancelled;
b. The failure by the respondent to timeously action or respond to his
complaints, which failure he considered, occurred and in respect of which
failure he raised complaints with external bodies on the 13 December
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2020; and
c. The letter from Chief Nurse Jacqueline Macrae (of the second
respondent), dated and posted to the claimant on 20 April and an
electronic PDF copy of which was sent to the claimant on 4 May, 2021,
the same being a determination of the claimant’s grievance in terms of
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which the second respondent partially upheld the same.
5. The claimant expressing a verbally voiced concern, to a care assistant
Sandra and a district nurse Sarah on 12 September 2020 (extract and insert
surnames from the letter at page 140) that he “ felt I shouldn’t been forced to
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or expected to train external staff and reiterated in a complaint made by him
through customer services on 9 February 2021.”
6. Further, and/or in the alternative to sub-paragraph (a) above, the claimant
gives notice of an intention to prove that he was an employee and was unfairly
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dismissed on the 7 November 2020 as a result of making a protected
disclosure, contrary to the provisions of section 103A of the ERA.
7. The claimant’s claim for unauthorised deduction from wages is in respect of
a payment of £500, which he asserts should have been paid to him by the
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first respondent as a result of a decision by the Scottish Government to pay
such a sum to care workers who worked during the Covid-19 Pandemic in
2020. The first respondent’s position is that the claimant was not entitled to
this sum, under the Scottish Government Scheme, as he was an agency
worker, and that they informed the claimant of this in February 2020.
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8. All claims are resisted by the respondent.
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