Mr J Harper v Red Hot Chilli Pipers Ltd and Mr J Hepburn: 4103476/2023

EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4103476/2023 5 Preliminary hearing held in Glasgow on 7 and 8 November 2023 Employment Judge M Whitcombe 10 Mr James Harper Claimant (1) Red Hot Chilli Pipers Limited Respondents 15 (2) Mr Jay Hepburn JUDGMENT ON PRELIMINARY ISSUES 20 (1) The claimant was an “employee” for the purposes of section 230(1) of the Employment Rights Act 1996, and similarly worded provisions (2) The claimant was a “worker” for the purposes of section 230(3) of the 25 Employment Rights Act 1996, and similarly worded provisions. (3) The claimant was an “employee” for the purposes of section 83 of the Equality Act 2010. 30 (4) The effective date of termination was 12 January 2023. Consequently, since no arguments were advanced on reasonable practicability, the following claims must be dismissed because the Tribunal has no jurisdiction to hear them: a. unfair dismissal; 35 Case No.: 4103476/2023 Page 2 b. unlawful deductions from wages, including unpaid holiday pay, (whether claimed as unlawful deductions from wages or under regulation 30 of the Working Time Regulations 1998); c. notice pay as damages for breach of contract. 5 REASONS Introduction and background 1. The claimant is a skilled musician and a graduate of the Royal Conservatoire 10 of Scotland. He was formerly a bagpiper with “the Red Hot Chilli Pipers”, the band operated by the first respondent. The band plays both traditional pipe tunes and contemporary compositions in a style which it calls “bagrock”. The first respondent markets the band as “the most famous bagpipe band on the planet”. The second respondent was and is the band’s drummer. 15 2. By a claim form received by the Tribunal on 23 June 2023 the claimant brought complaints of unfair dismissal, discrimination on grounds of sexual orientation and religion or belief, breach of contract in relation to notice pay, unpaid entitlement to paid annual leave and failure to provide a written 20 statement of particulars of employment. 3. This preliminary hearing was arranged to decide preliminary issues of employment status and jurisdictional time limits. Further details can be found in the note and orders following the Preliminary Hearing for case 25 management conducted by EJ Kemp on 23 August 2023. 30 Issues Employment status issues Case No.: 4103476/2023 Page 3 4. Whether the claimant was an “employee” as defined by section 230 of the Employment Rights Act 1996 for the purposes of: a. various types of complaint under that Act; b. complaints of breach of contract (e.g. notice pay) under the ETs 5 (Extension of Jurisdiction) (Scotland) Order 1994. 5. Whether the claimant was a “worker” as defined by section 230(3) of the Employment Rights Act 1996 and the textually identical regulation 2 of the Working Time Regulations 1998 for the purposes of: 10 a. various types of complaint under the Employment Rights Act 1996; b. complaints under the Working Time Regulations 1998. 6. Whether the claimant was an “employee” as defined by section 83 of the Equality Act 2010 for the purposes of claims brought under that Act. 15 Time limit issues 7. Whether the Tribunal had jurisdiction to consider the claims, having regard to the time limits in sections 23 and 111 of the Employment Rights Act 1996, 20 regulation 7 of the ETs (Extension of Jurisdiction) (Scotland) Order 1994 and regulation 30 of the Working Time Regulations 1998 (all containing “reasonable practicability” tests). 8. Whether the Tribunal had jurisdiction to consider the claims, having regard to 25 the time limits in section 123 of the Equality Act 2010 (entailing possible consideration of a discriminatory act extending over a period, and containing a test based on justice and equity). 30 Concessions and orders by consent 9. In response to my questions during the hearing, the respondent conceded Case No.: 4103476/2023 Page 4 that the definition of employment in section 83(2)(a) of the Equality Act 2010 was met. The basis of the concession was that the claimant was engaged under a “contract personally to do work”. The existence of a contract was not in dispute (at least while the claimant was working), nor was it disputed that the claimant’s contractual obligation was to do the work personally. This 5 contrasted with the position taken by the respondent at the start of the hearing, when in response to a direct question no concessions whatsoever were made on any issues of employment status. 10. Given the way the notice of hearing and EJ Kemp’s order were each framed, 10 I raised with the representatives the implications of the judgment of Ellenbogen J in E v X, L and Z (UKEAT/0079/20/RN), which would appear to preclude me from deciding that any issues of jurisdiction were better left to the final hearing. Instead, I would be obliged to decide the questions of jurisdiction once and for all at this preliminary hearing, even if to do so fairly 15 would require the calling of evidence which neither side had envisaged to be necessary. 11. The parties reached the following agreement, which provided a route around that problem. I adopted it as a consent order. 20 a. Jurisdictional time limit arguments in the claims brought under the Equality Act 2010 would be left to the final hearing. The issues for that hearing would include whether there was a discriminatory act extending over a period, and (if necessary) whether it was just and 25 equitable to hear the complaint out of time. b. I would only be asked to decide jurisdictional time limit issues in relation to the claims in which time limits entailed a “reasonable practicability” test. That was because the claimant did not argue that it 30 would not have been reasonably practicable to have brought those claims within time. The sole issue in dispute was the effective date of termination (“EDT”). If I accepted the claimant’s argument regarding the EDT then the claims were in time and the reasonable practicability Case No.: 4103476/2023 Page 5 issue did not arise. If I accepted the respondent’s argument regarding the EDT then the claimant accepted that the claims were out of time and that the Tribunal had no jurisdiction to hear them. Evidence 5 12. I heard oral evidence from just two witnesses, both of whom gave their evidence on oath and were cross-examined: a. the claimant, Mr James Harper; b. Mr Kevin McDonald, a practising chartered accountant, a piper and an 10 owner and director of the first respondent. He is also the finance director of 5 other companies. Relative credibility 15 13. Where their evidence differed, I preferred the claimant’s evidence. The claimant came across as an honest and straightforward witness whose evidence was generally supported by the contemporaneous documentation. He dealt confidently and persuasively with the points point to him in cross- examination. In contrast, Mr McDonald’s evidence and the instructions given 20 by him to the respondents’ representative were not always supported by contemporaneous evidence, and the respondent had failed to provide some important documents that ought reasonably to have been available to them. Examples include the alleged “contractor form” and the full extent of the invoices allegedly sent by the claimant. The failure to produce them 25 undermined the credibility of Mr McDonald’s evidence, especially given his qualifications and training. Gaps in an audit trail carry particular weight in those circumstances. Mr McDonald also gave second order hearsay evidence about sums allegedly earned by the claimant for other work, when better evidence could easily have been called if that allegation were true. 30 Overall, the claimant was a more impressive witness than Mr McDonald. Documentary evidence Case No.: 4103476/2023 Page 6 14. I was also provided with a joint file of documents running to 392 pages. There had been a dispute about the admissibility of transcripts derived from covert recordings. However, the respondent accepted that the transcripts were accurate and that there had been time to take instructions on them. I refused 5 the respondent’s application that they should be ruled inadmissible for reasons given orally at the time. Relevant facts 10 15. Many relevant facts were undisputed. Where facts were disputed, I made my findings on the balance of probabilities, in other words a “more likely than not” basis. I will only set out the facts which had a bearing on my decision. It was not necessary to make findings on every disputed fact. 15 Joining the band 16. The claimant is a musician who studied at the Royal Conservatoire of Scotland (“RCS”) from 2013-2018. His main instrument was the bagpipes. The claimant’s final exams were in May 2018. By June he had finished most 20 of his academic work but had not yet graduated. 17. While at the RCS the claimant had played at some ceilidhs and undertaken some other performance work under the auspices of the RCS but, overall, he did very little performing while studying. He formed a ceilidh band with other 25 students, but it was by no means professional. Following the completion of the claimant’s studies in the summer of 2018 his band was receiving bookings for a maximum of a couple of ceilidhs a month. 18. Through the traditional music scene, the claimant knew someone who played 30 with the Red Hot Chilli Pipers (from now on, “RHCP”). The claimant was recommended to the band. Kevin McDonald contacted the claimant on 9 June 2018 and that led to the claimant’s first gig with RHCP – a corporate gig for Heineken at Murrayfield Stadium on 16 June 2018. After that the claimant Case No.: 4103476/2023 Page 7 was quickly offered more corporate gigs with the respondent. 19. On 22 August 2018 the claimant was sent a spreadsheet of “potential Chilli gigs” for the year from 31 December 2018 to 31 December 2019. The claimant was among the musicians being offered first refusal on the available 5 gigs, to the extent that they fitted with personal circumstances. Mr McDonald wrote, “For...