Mr G Fuller v Lancashire County Council: 2414517/2021
| Jurisdiction | England & Wales |
| Judgment Date | 02 December 2022 |
| Date | 02 December 2022 |
| Published date | 16 December 2022 |
| Court | Employment Tribunal |
| Citation | 2414517/2021 |
RESERVED JUDGMENT
Case No. 2414517/2021
EMPLOYMENT TRIBUNALS Claimant
Mr G Fuller
Respondent:
Lancashire County Council
Heard at:
Manchester (hybrid (1st day) and in person (2nd day)
Employment Judge McCarthy (sitting alone)
Before:
On: 22 and 23 September 2022
REPRESENTATION:
Claimant:
Respondent:
Mr MacMillan of Counsel Mr Wood of Counsel
RESERVED JUDGMENT The judgment of the tribunal is that:
1. The claimant was not an employee of the respondent.
2. The respondent has not made unauthorised deductions from the claimant’s wages. The claim is dismissed.
REASONS
Introduction
1.
By a claim form presented on 16 November 2021 (having entered early conciliation and received a certificate against the respondent dated 6 November 1
RESERVED JUDGMENT
Case No. 2414517/2021
2021), the claimant complained of a series of unauthorised deductions from his wages for the period from 21July 2020 to 14 June 2021.
2.
By a response form dated 17 December 2021 the respondent resisted the complaint. It says that it had not made unauthorised deductions from the Claimant’s wages, and the claimant was not an employee but a casual worker.
Preliminary Issues 3.
On the first day of the hearing, the claimant’s counsel, Mr MacMillan, was unable to attend the in person hearing as his diary had incorrectly recorded that the hearing was being held via CVP. Mr MacMillan was based overseas so had been unable to travel to the tribunal when he had discovered the error. He requested that the hearing be postponed for one day, with all evidence being heard on the second day or a hybrid hearing arranged for the first day. Arrangements were made for a hybrid hearing but there were technical difficulties with the sound. Having established that all evidence could be heard on the second day of the hearing, I agreed with the parties that the remainder of the first day be used for reading, given the technical difficulties and to allow Mr MacMillan sufficient time to travel to the UK for the second day of the hearing.
4.
As noted on the ET3 form, the respondent is a large employer in the North West region of England and employs “40,000 plus” people. Before hearing evidence, I disclosed to the parties that, perhaps unsurprisingly, I had a personal friend who worked for the respondent. I disclosed that this friend worked for the respondent’s Human Resources function (I explained I had no knowledge how large this function was or what areas she covered) but there was no indication in the agreed bundle,
pleadings and/or witness statements that my friend had any involvement in the case before me- she was not one of the named HR representatives referred to in the documents/witness statements. I confirmed that I had no other personal or profession connection with the respondent and believed I could still be fair and impartial.
However, as there was one general reference to “HR” discussing whether to utilise the claimant as a casual worker during the investigation, I felt it was appropriate to disclose this connection with the parties. I asked the claimant and respondent whether they had any objections to me continuing to hear the case and gave them time to reflect on my disclosure with their respective Counsel. Counsels for both the claimant and the respondent informed me that their respective client had no objections to me continuing to hear the case and the hearing proceeded.
Claims and Issues 5.
The issues to be determined by the tribunal were discussed and agreed at the outset of the hearing. A List of Issues had been discussed at a Preliminary Hearing on 21 March 2022 with Employment Judge Humble and was annexed to the Record of the Preliminary Hearing dated 1 April 2022. The parties’ representatives confirmed on the first day that there were no proposed amendments to this list of issues and it was agreed that this reflected all the issues to be determined by the tribunal. The list of issues is annexed to this judgment. The respondent had asserted at this Preliminary Hearing that the claimant’s claim was out of time and so the list of issues included issues relating to time limits (issues13-20). On the second day of the hearing, the respondent’s counsel, Mr Wood, informed me that the respondent would not now be taking the time point. I explained that as jurisdiction cannot be conferred on a tribunal 2
RESERVED JUDGMENT
Case No. 2414517/2021
by agreement or waiver and it was a live issue, I would still consider whether the Tribunal had jurisdiction to hear the claimant’s claim.
Procedure/Documents and evidence heard 6.
The first day only was a hybrid hearing. The second day of the hearing was an in person hearing as all parties were now able to attend in person. I heard oral evidence from the claimant on his own behalf. I also heard oral evidence from Ms Jennifer Martin (Assistant Unit Manager at Eden Bridge Children’s care home), on behalf of the Respondent.
7.
During the hearing I was referred to documents within an agreed bundle of documents which contained 166 pages and provided with written witness statements for both witnesses. I was also provided with a copy of Agbeze v Barnet, Enfield and Haringey Mental Health NHS Trust 2022 IRLR 115, EAT and an extract from the IDS Employment Law handbook, Volume1, Chapter 5 “Are casual staff employees.” Factfinding
8.
The relevant facts are as follows. Where I have had to resolve any conflict of relevant evidence, I indicate how I have done so at the material point. References to page numbers are to the agreed bundle of documents.
9.
The claimant, Mr Fuller, was engaged (to use a neutral term) as a Casual Residential Child Care Worker at the Eden Bridge children’s care home (“Eden Bridge”) from December 2019. Prior to working for the respondent, the claimant had no relevant qualifications or experience of working in a children’s care home. At the time of the hearing before me, he remained engaged by the respondent but was working at a different care home.
10.
The respondent accepted that the claimant was a worker for the purposes of limb (b) of section 230(3) of the Employment Rights Act 1996 (“ERA”). However, they denied that the claimant was an employee of the respondent from December 2019 onwards and more specifically from 21 July 2020 to 14 June 2021, when the claimant contends that unauthorised deductions were made from his wages.
11.
The respondent is a county council. It operates a number of children’s care homes with Eden Bridge, being one of these homes. In relation to these children’s care homes, the respondent was subject to a number of statutory obligations including under Regulations 31 and 32 of the Children’s homes (England) Regulation 2015 (“CHR 2015”).
12.
The claimant’s claim arose from the fact that between 21 July 2020 until 14 June 2021 the respondent decided to “cease utilising the claimant as a Casual member of staff” whist there was an investigation into serious allegations regarding his conduct and behaviour and due to the allegation in question. The claimant was not offered any shifts during this period and was not paid any wages during this period.
Following the conclusion of the investigation the respondent began offering the claimant’s shifts again after 14 June 2021 as can been seen from the rota at page 74 in the agreed bundle.
3
RESERVED JUDGMENT
Case No. 2414517/2021
Offer of Appointment 13.
The terms of the agreement under which the claimant provided the respondent with services is at pages 63-64 of the agreed bundle – the offer of appointment letter.
This offer of appointment letter provided the framework for the claimant’s appointment.
He was not provided with, or asked to sign, any further contract with the Respondent regarding his engagement. At paragraph 6 of his witness statement the claimant accepts that he was never provided with a contract of employment or a contract for services. At paragraph 19 of his witness statement the claimant confirmed that he considered the offer of appointment letter to be the “terms and conditions” of his engagement.
14.
On 15 October 2019, the respondent provided the claimant with a Conditional Offer of Appointment as a Casual Residential Child Care Worker on a pay rate of £10.97 per hour working for FARY Residential Services, part of Lancashire County Council.
15.
The offer of appointment was conditional on certain conditions (set out in the offer of appointment letter) being met. These conditions included satisfactory written references, enhanced Disclosure and Barring Service (DBS) clearance and documentary evidence of the claimant’s right to work in the United Kingdom. The letter confirmed that once all the clearances have been received the claimant would receive confirmation that his appointment has been finalised and he would be contacted separately by the service to arrange for him to undertake casual work.
16.
The offer of appointment letter stated that the claimant “will received payment for the actual hours you work.” It also detailed how the claimant would “also receive 12.07% holiday pay plusage on any hours worked”. There was no entitlement to take holiday.
17.
The offer of appointment letter also stated “Please be aware that casual work is provided on an ad hoc basis and there is no obligation on the County Council to provide work, or for you to agree to undertake work if it is offered.” (63)
18.
The offer of appointment letter was very brief. It contained no entitlement to regular or guaranteed hours, did not refer to a right to “suspend” the claimant with/without pay or contain any express term entitling the claimant to pay during any period of suspension. It also did not contain any provisions regarding substitution,
exclusivity, notice and/or termination, sick leave and was silent as to disciplinary and grievance procedures.
19.
There was a reference in the offer of appointment letter to the respondent providing “automatic membership of the Local Government Pension Scheme to employees aged under 75 and who have a contract of...
To continue reading
Request your trial