Mr J Campbell v The Federation of Small Business Recruitment Ltd: 4104205/2016
| Judgment Date | 31 August 2017 |
| Subject Matter | Breach of Contract |
| Date | 31 August 2017 |
| Citation | 4104205/2016 |
| Published date | 13 September 2017 |
| Court | Employment 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.
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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:-
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(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 1 0
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:-
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