Hi Everyone,

I was an agency worker and I was sacked for making a protected disclosure.

I have taken the company and my agency to the Tribunal

The company has sent in their ET3

In it, they are claiming that they are not the one that "substantially" determines the terms in which I worked

I have looked at the Law: section 43k of the employment rights act 1996

In particular 43k (1)(a)(ii) and sees that it should be could be either one of them or both of them.

But also I have looked at Day v Lewisham and Greenwich NHS Trust and Health Education England UKEAT/0250/15/RN

Where the Judge ruled that it must be one

Meanwhile, in McTigue v University Hospital Bristol NHS Foundation Trust UKEAT/0354/15/JOJ

The Judge ruled that it could be both (see para 38 (i))

I think the difference in outcome is due to the word "substantial"

So guys; what is the meaning of "substantial" in this context?

Also, what does "terms" mean in 43k (1)(a)(ii).

Thanks

On your first question,

it means what the judge(s) determines it means in the context of your situation.

Sorry, but that is the best answer you are going to get!

That's the problem with relying on case law

- inevitably there are variations in interpretation, and they are context specific.

The only thing you can do is try to figure out which outcome is neatest to your situation and argue that applies

- but you may not win the argument.

"Terms" means what it always means

- who sets the conditions of your job.

Usually this is the client

- they set the hours of work,

the times you work,

when you get breaks,

what the rate of pay is and so on.

But it may be set by the third party agency

- in the case of work being sub- contracted ,

for example.

In your case the third party appears to be an employment agent who simply provide workers.

In which case they do not determine that you are "sacked" because their client is entitled to refuse to continue with any of the workers.

The agency cannot force a client to take any particular person, so they would not be the people who set the terms.

Out that is the way I would interpret it based on what you have said.

The section relates only to employment status for the purpose of making a protected disclosure (I think, without reviewing the whole section!)

So in this case, it's to determine if you were engaged by either company as a worker for the purpose of a claim.

It therefore sounds as though it relates to the degree of control they had over you and which of the two dictated when and how you worked. That's how I interpret the word substantial in this context, although I haven't come across this issue in practice.

There's probably no question over the fact that one of them was your "employer", so the ET will need to work out (for the purpose of that section) which of the two employers have legal liability for the claim.

It's a strange one, as agency workers by their very definition can't have a direct employment relationship with the company they work for, but for discrimination purposes or similar it's legally possible for the company to be liable for a claim.

Thanks for your answer.

The Case Management Hearing is in June so I will wait to see if they will raise it as a Preliminary Issue.

On your first question, it means what the judge(s) determines it means in the context of your situation. Sorry, but that is the best answer you are going to get! That's the problem with relying on case law - inevitably there are variations in interpretation, and they are context specific. The only thing you can do is try to figure out which outcome is neatest to your situation and argue that applies - but you may not win the argument. "Terms" means what it always means - who sets the conditions of your job. Usually this is the client - they set the hours of work, the times you work, when you get breaks, what the rate of pay is and so on. But it may be set by the third party agency - in the case of work being sub- contracted , for example. I your case the third party appears to be an employment agent who simply provide workers. In which case they do not determine that you are "sacked" because their client is entitled to refuse to continue with any of the workers. The agency cannot force a client to take any particular person, so they would not be the people who set the terms. Out that is the way I would interpret it based on what you have said.

Thanks

becky 2585 seems to answer the question. She (I guess it is a she) gave a much better answer

That seems a little ungracious, dondada.

People here give their advice for free and ask for nothing in return.

You're at liberty to take whose advice you like, the more answers the better I would have thought.

HB

I apologise completely

I have no excuse whatsoever and I will not try to make excuse

The two answers effectively say the same thing - a judge has to decide, but it has to be one of them.

Apology accepted, but I'll stay out of your business in future.

The Employment Judge has directed that the Case Management Hearing be converted to a Preliminary Hearing to hear issue of Reasonable prospect of success.

I guess he did that under rule 37

The Respondents didn't make any such application

I was wondering if I can ask them for Witness statement (I suspect they would refuse)

I also wish to ask for disclosure of documents.

Hopefully, they would refuse and I could use that there is insufficient material for the Judge to make a decision

Just thinking aloud

If the judge has done this without an application, then they already think they have enough information to come to a decision.

What that usually means, in my experience, is that one side of the other hasn't listened to heavy hints about having little chance of succeeding.

If that is you, be cautious - the next stage is usually a costs order!

Thanks,

To be honest, nobody said anything about "having little chance of succeeding"

There are two respondents

The first respondent didn't even take a lawyer

They are just arguing that I'm an agency worker hence cannot bring a claim.

The second respondent claims they are not the one that "substantially" determines the terms in which I worked

That my claim should be against the second respondent only

But in McTigue v. University Hospital Bristol NHS Foundation Trust para 38(i) the Judge said in whistleblowing cases they could be two employers.

That is what the hearing is about!

You were the one who said the judge wanted a hearing about the reasonable prospect of success!

Thanks

Yes the Judge is the one who wants a hearing.

I have written to the other side asking them to disclose documents that would assist the Tribunal.

I hope they don't produce anything.

Hopefully, since they didn't request it they wouldn't put so much effort into it.

I think you are falling to appreciate that this hearing is about what the judge wants

- what you ask them to produce is irrelevant.

Whether they comply or not will have nothing to do with the outcome.

The hearing is more than likely to hinge on legal argument - not evidence of something.

Thanks

If it is going to be on legal argument only then it would be strange

No Reasonable Prospect of Success is said to be a high test (Balls v Downham Market High School and College [2011] IRLR 217; EAT/0343/10)

If there are disputed facts then a Full hearing should take place ( Ezsias v North Glamorgan NHSnTrust [2007] ICR 1126; [2007] EWCA Civ 330)

Such applications should rarely, if ever, involve oral evidence (QDOS Consulting Ltd v Swanson EAT/0495/11)

There shouldn't be extensive study of documents and the assessment of disputed evidence that may depend on the credibility of the witnesses (QDOS Consulting Ltd v Swanson EAT/0495/11)

Obviously, the Judge should know that since Strike Out has been said to be draconian.

I am obviously not privy to the judges thinking,

but given they have said that they wish to consider "reasonable prospect of success", and based on your first posts information,

my best guess is that the judge has doubts as to whether protected disclosure is in fact a protected disclosure in law,

or whether it amounted to the reason your placement was terminated,

or whether you can bring a claim against the parties.

Or a combination of two or all three of those.

Such hearings are based on the fact that the judge does not consider you have enough of a legal basis to make the claim you have.

And it is restricted to that arena- it does not hear the case itself.

That is why the evidence that you don't have,

that you have asked the employer for, is not relevant.

An employment tribunal is not a fishing expedition.

If you do not currently have sufficient legal argument upon which to base your claim, and evidence to support it, it is unlikely the judge will allow you to proceed.

Hello Everyone,

Sorry I was away for too long.

I had the Preliminary Hearing last Friday; 2nd June 2017

It was the strangest ever!

Like I said earlier the Case Management Hearing was converted to a Preliminary Hearing to hear if the case had a reasonable prospect of success

On the day, the Judge refused to have a Preliminary Hearing

He said it was going to be a Case Management Hearing

One of the Respondent complained, saying that they had hired a Barrister for that purpose.

But the Judge wasn't bothered.

He didn't criticise the previous Judge that converted it in the first place.

I was asked to explain the detriment suffered.

The only difficult question I was asked was if I had a contract with both Respondents

I pointed that I had a written contract with one but a non-written contract with the other (the end user)

I had intended saying an implied contract but the words escaped me.

Anyway, the full merit Hearing would be in February 2018.

"would be" as in you have not received a ruling yet?

fingers crossed for you.

Hi everyone,

Something has happened

Just a little recap

I was an agency worker

I made a Protected Disclosure and got sacked

I took the End User and my Agency to the Tribunal

The Case Management Hearing was in June

During the Case Management Hearing, the Judge on his initiative added the Payment Company (Umbrella Company)

Which meant my claim was against 3 companies.

The Payment (Umbrella) Company has failed to put in a defense.

I'm aware that if my claim was against one company I would have made an Application for Default Judgement.

But now that my claim is against 3 companies, it seems complicated.

If I can, do I go for the full amount or do I go for a third?

Thanks

Default, full amount.

The judgment defendant can then seek an indemnity or contribution from the other defendants, but that isn't your concern.

Interesting. This is one past my experience. I can't see how an umbrella company has anything to do with it! But whatever - as stated - leave that up to them to sort. You haven't won yet! And not putting in a response on time is common and means little.

Thanks everyone,

I have just checked the Umbrella (Payment) Company on Company House.

I noticed that even though they are still "Active", it shows a "proposal to strike off".

Do I still go after them even though they are about being struck off?

Once again thanks

yes because you wont be able to once they are struck off.

Get your claim in and you become a creditor, even if that debt isnt quantified until after they are struck off.

The law will still allow you to chase the directors and seek any assets they have transferred.

Bear in mind that they may well not want to be helpful in this manner when it comes to that time

Thanks a lot for this.

Just curious though; I don't know when they will get struck off, so if I put in the Application for Default Judgement and the company got struck off before my Application is granted what happens?

Am I allowed to still go after the other two or I have missed it?

Thanks

You are putting the cart before the horse.

You don't have a default judgement yet, and not having filed a response on time is very commonplace.

That doesn't mean they won't, or that they won't be given more time.

And this situation still seems to be rather obscure in respect of their relationship to a whistleblowing case anyway

- they didn't hire you and they didn't fire you!

The register is also often "behind times"

- they may actually already be wound up, so you would need to check that they aren't.

Default judgments aren't automatic any more when the response is overdue.

And the judge will decide whether they can determine the claim from the information they have

- they may decide they can't and not issue a default judgement at all.

You are putting the cart before the horse. You don't have a default judgement yet, and not having filed a response on time is very commonplace. That doesn't mean they won't, or that they won't be given more time. And this situation still seems to be rather obscure in respect of their relationship to a whistleblowing case anyway - they didn't hire you and they didn't fire you! The register is also often "behind times" - they may actually already be wound up, so you would need to check that they aren't. Default judgments aren't automatic any more when the response is overdue. And the judge will decide whether they can determine the claim from the information they have - they may decide they can't and not issue a default judgement at all.

The Judge on his own initiative added the Umbrella (Payment ) Company.

I don't know why but I suspect he wants to follow the guidance given in paragraph 15 of Cable & Wireless v Muscat March 2006.

Also, read paragraph 35 of the same case.

During the Case Management Hearing, the Judge said there is a possibility I could bring an Unfair Dismissal claim.

I want to wait until the Full Merit Hearing to follow that line.

Anyway, I have written to Companies House to object to the Strike Off application by the Umbrella Company.

As soon as that is confirmed then I would put in an Application for Default Payment.

Once again thanks everyone