Mr J Harper v Red Hot Chilli Pipers Ltd and Mr J Hepburn: 4103476/2023
| Jurisdiction | England & Wales |
| Judgment Date | 27 December 2023 |
| Date | 27 December 2023 |
| Citation | 4103476/2023 |
| Court | Employment Tribunal |
| Published date | 05 July 2024 |
| Subject Matter | Working Time Regulations |
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case Number: 4103476/2023
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Preliminary hearing held in Glasgow on 7 and 8 November 2023
Employment Judge M Whitcombe
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Mr James Harper Claimant
(1) Red Hot Chilli Pipers Limited Respondents
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(2) Mr Jay Hepburn
JUDGMENT ON PRELIMINARY ISSUES
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(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
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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.
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(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;
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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.
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REASONS
Introduction and background
1. The claimant is a skilled musician and a graduate of the Royal Conservatoire
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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.
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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
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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
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management conducted by EJ Kemp on 23 August 2023.
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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
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(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:
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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.
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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,
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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
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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).
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Concessions and orders by consent
9. In response to my questions during the hearing, the respondent conceded
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