Mr J Campbell v The Federation of Small Business Recruitment Ltd: 4104205/2016

Judgment Date31 August 2017
Subject MatterBreach of Contract
Date31 August 2017
Citation4104205/2016
Published date13 September 2017
CourtEmployment Tribunal

EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: S/4104205/2016 5 Held in Glasgow on 5 and 6 April 2017 and 12 and 13 July 2017 Employment Judge: F Jane Garvie 10 Mr J Campbell Claimant In Person 15 The Federation of Small Business Recruitment Ltd Respondent Represented by Mr A Hardman – 20 Advocate Instructed by Mr T McArdle – Solicitor 25 JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the Tribunal is that:- 30 (1) the respondent’s application for expenses in terms of rule 76 (1)(a) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is refused; (2) the claimant was not an employee of the respondent, having regard 35 to the test set out at section 230(2) of the Employment Rights Act 1996 and nor was he in employment of the Respondent in terms of section 83(2)(b) of the Equality Act 2010 and according the claim must be dismissed and (3) in light of the Tribunal’s above determination the complaints in 40 relation to failure to pay to the claimant notice pay and holiday pay cannot succeed and they are therefore dismissed. S/4104205/2016 Page 2 REASONS Background 1. In his claim, (the ET1) presented on 12 August 2016 the claimant asserts that he was employed as a Membership Advisor. He directed his claim 5 against two respondents, the first being described as the Federation of Small Businesses and the second was the present respondent. In addition, he alleges that he was discriminated against on the grounds of age and associative disability. He further asserts that he was owed notice pay, holiday pay, arrears of pay and other payments. 10 2. The respondents lodged a single response, (the ET3) in which they explain that the correct name of the second respondent was the National Federation of Self Employed and Small Businesses Ltd t/a The Federation of Small Businesses and that the First Respondent (Federation of Small Business Recruitment Ltd is a wholly owned subsidiary of the second respondent and 15 a separate legal entity. Both respondents deny that the claimant was employed by either the first or the (now former) second respondent, (see below) as defined by section 230(1) of the Employment Rights Act 1996 (the 1996 Act) and/or section 83(2)(a) of the Equality Act 2010 (the 2010 Act). 3. It was their position that the claimant was recruited by the first respondent 20 and entered into a contract with them for the provision of his services as a self employed Membership Advisor in order to recruit new members for the second respondent. This was pursuant to a contract between the first and second respondents for the provision of Recruiter Services. 4. A Preliminary Hearing was held before Employment Judge June Cape on 13 25 October 2016 after which she issued various Orders and a Note dated 23 November 2016. 5. In terms of the Orders she directed that there should be a Preliminary Hearing with a time estimate of two days to determine the following issues:- S/4104205/2016 Page 3 (i). Whether the claimant was an employee for the purposes of the complaints of unfair dismissal, failure to pay notice and claims under the 2010 Act or whether the claimant was engaged on a contract personally to do work in terms of the 2010 Act. (ii). Whether the complaints of associated disability discrimination 5 (failure to make reasonable adjustments, harassment, victimisation) should be struck out on the grounds that they were misconceived or have no reasonable prospect of success, or alternatively, whether the claimant should be ordered to pay a deposit as a condition of proceeding with that claim on the grounds 10 that they have little reasonable prospect of success. (iii). Any application to amend the claim form. 6. Judge Cape directed that the claim insofar as it was directed against the second respondent should be dismissed. For the purpose of this judgment 15 and reasons, they are referred to as the Federation of Small Businesses (the FSB). Also, for the avoidance of doubt the present respondent is the Federation of Small Business Recruitment Ltd. 7. At that Preliminary Hearing the claimant withdrew the complaints of unauthorised deductions and arrears of pay but the complaints of notice pay 20 and entitlement to holiday pay were not withdrawn, (see the Note at paragraph 10 on page 6). A Preliminary Hearing was to be held on 11 and 12 January 2017, restricted to the issue of “Employment Status”. A postponement was sought by the respondent and granted as the claimant had no objection to its being postponed. The claimant sought to amend his 25 claim. The respondent’s representative, Mr McArdle suggested this be deferred pending a determination of employment status. The claimant agreed. The parties were informed there would be a one day Preliminary Hearing on this issue which was then amended to two days. 8. The parties were informed that the Preliminary Hearing was to be restricted 30 to the following two issues:- S/4104205/2016 Page 4 (1) Whether the claimant was an employee for the purposes of the complaints of unfair dismissal, notice being claims under the 2010 Act. (2) Whether the claimant was engaged in a contract personally to do work in terms of the Equality Act. 5 9. It became apparent that it was not going to be possible to complete this Preliminary Hearing in the two days which had been allocated since during the Preliminary Hearing the claimant indicated that he was seeking a Witness Order for the attendance of a Mr Gardner Paterson to be a witness on his behalf. That Order was granted on 19 April 2017 and the Preliminary 10 Hearing was continued to 12 and 13 July 2017. The Preliminary Hearing in April and July 2017 10. It was agreed between the parties that the respondent’s witnesses would give evidence first followed by the claimant and his witnesses. A joint bundle was produced which extends to 284 pages. 15 11. Evidence was given on behalf of the respondent by Mr Kevin Hall who is the Respondent’s Head of Services, Mr Gerard Brennan who runs a consultancy service and also recruits members to the FSB, Mr Derek Carr who is a Marketing Advisor to the respondent and also runs his own business, Carr Management Services Ltd. 20 12. Evidence was given on behalf of the claimant by a Ms Vicki Docherty who had formerly been a Membership Advisor with the respondent. As indicated, Mr Gardner Paterson who is a Regional Sales manager with the Respondent was called as a witness by the claimant. In addition, the claimant gave evidence on his own behalf. 25 Findings of Fact 13. The Tribunal found the following essential facts to have been established or agreed S/4104205/2016 Page 5 14. The claimant has considerable experience in sales and marketing. He knew Mr Paterson having worked with him elsewhere in the past. The claimant responded to an advertisement from the respondent, (page 34) which is entitled “SELF-EMPLOYED SALES AGENT OPPORTUNITIES – COMMISSION ONLY”. It reads:- 5 “Could you sell membership of the UK’s most highly-respected small business pressure group, representing around 2000,000 business owners? Can you sell one of the most attractive business support packages available? Are you ready to become a self-employed sales agent? 10 We are now seeking self-employed sales agents to help boost our membership numbers even further. We can offer  Attractive commission – successful agents currently earn in excess of £50k per annum.  Marketing campaigns to support sales leads. 15 Successful candidates should be self-motivated and energised by working towards targets, be comfortable working independently and be passionate and knowledgeable about business. You must have your own car and mobile phone.” 15. There were also details as to how to contact the respondent. The claimant 20 e-mailed the respondent on 22 January 2014, (page 35). He attached a copy of his CV. 16. Subsequently, the claimant met Mr Paterson and by e-mailed dated 19 February 2014, (pages 41/42) Mr Paterson advised the claimant that he was offering him “the position of self-employed recruiter within the Glasgow and 25 Ayrshire area”. He explained that the respondent’s HR would be in touch with him and in the meantime an initial recruiter training course in Blackpool starting 4th March had been pencilled in for the claimant to attend. S/4104205/2016 Page 6 17. The claimant replied on the same date, (also page 41) confirming he would go on the course. 18. The claimant was given an e-mail address as well as a group e-mail, (page 43). He was also given 250 business cards, (pages 44 and 45). This gives the claimant’s name and telephone number, (this is the claimant’s own 5 mobile number) and the e-mail address which was set up for the claimant’s use. 19. The claimant emailed Mr Paterson on 10 March 2014, (page 47) advising that “I have NO target as I have never been given one for my area …. And just to remind you I never signed any contract”. He then sent a further email 10 on the same date, (again page 47). 20. Mr Paterson e-mailed the claimant and others in his team on March 10 2014, (page 48) indicating that it had come to his attention that some of them were not aware that there were targets set for Membership Advisors “astonishing as that may seem”. His e-mail explained that each postal code 15 area which was allocated to a Membership Advisor had a minimum target set of 20 new members per month (or 1 per working day). 21. His e-mail also explained that this was set for every region across the UK and he believed it had been placed for a considerable time. In the region for which Mr Paterson was responsible there appear to have been 16 20 Membership Advisors meaning there was a team target total of 320 new members per month or 3,840 new members for the year which, in turn, formed part of the 24,000 new members national target for the year 2014. Mr Paterson’s e-mail also referred to contracts and explained that these had been completed and would be “rolled out in stages over the next few 25 weeks”. His e-mail continued...

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