Grzegorz Kaminski v Robin Hood Curry House Limited

IN THE EMPLOYMENT AND DISCRIMINATION

TRIBUNAL IN THE MATTER:

BETWEEN

GRZEGORZ KAMINSKI

CLAIMANT

AND

ROBIN HOOD

CURRY HOUSE LIMITED

RESPONDENT

INTERIM JUDGMENT Reference: [2020] TRE 65(A) Hearing Date: 7 September 2020 Before: Mrs H Westmacott, Deputy Chairman Appearance: For the Claimant: In person For the Respondent: Mr B Thirkell, Director Ms A Francisco, Manager

JUDGMENT The Claimant was an employee of the Respondent from February 2015 to February 2020. Accordingly the Claimant had 5 years continuous service with the Respondent.

ORDER A case management hearing shall be listed for the Tribunal to consider with the parties what further orders are required for the determination of the Claimant’s claim.

REASONS Introduction 1. The Claimant worked for the Respondent, a takeaway and delivery service, as a driver delivering meals to the Respondent’s customers from February 2015 until February 2020.

2. By claim form presented to the Tribunal on 10 April 2020 the Claimant brought the following complaints against the Respondent: (a) unfair dismissal; (b) wrongful dismissal (failure to pay notice pay); (c) accrued but unpaid holiday pay; (d) failure to provide itemised pay statements; and (e) failure to provide written statement of terms; (the “Claims”).

3. The Respondent defended the Claims on a number of grounds, the primary ground being that the Claimant was not an employee of the Respondent and accordingly is not entitled to bring the Claims against the Respondent.

4. A case management hearing was held on this matter on 28 July 2020 (the “CMH”) at which the Tribunal listed an interim hearing (the “Interim Hearing”) with the purpose of determining the following issues: (a) whether the Claimant was an employee or whether he was self-employed; and (b) if the Claimant was an employee, how much continuous employment he had with the Respondent.

5. This judgment sets out my findings in relation to those issues following the Interim Hearing, together with my reasons for making those findings. Evidence 6. I received witness statements in advance and heard oral evidence at the Interim Hearing from: (a) The Claimant; (b) Mr Thirkell, director of the Respondent; and (c) Ms Francisco, manager of the Respondent.

7. The Respondent provided a file of documents in advance of the Interim Hearing (the “File”). The Claimant did not object to any of the documents in the File being provided and did not provide any further documents. References in square brackets below are, unless the context suggests otherwise, to the relevant page of the File.

8. When making my judgment I considered all of the evidence both oral and written provided by each of the parties and made the findings of fact set out below. Only the facts that are relevant to the issues to be determined have been summarised in this judgment. Where there have been factual disputes to resolve I have done so on the basis of my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the oral and written evidence. The Facts 9. The Claimant started working for the Respondent in 2015 as a delivery driver, delivering meals to the Respondent’s customers in the evenings. The Claimant became aware of the job through a friend, who also made deliveries for the Respondent. February 2015 to December 2017 10. In February 2015, at the request of Mr Thirkell, Ms Francisco added the Claimant to the Respondent’s payroll system. It was not disputed that, as the Claimant had no other day job, the Claimant asked the Respondent to pay his social security contributions. Accordingly, Mr Thirkell agreed to include the Claimant on the Respondent’s payroll in order to do this. At that time the Claimant was the only driver on the Respondent’s payroll system.

11. During this period the Claimant was paid for the hours he worked on a weekly basis in arrears. The File contains payslips that evidence these weekly payments (the “2015 to 2017 payslips”) [71 to 202]. The Claimant maintained that he had not seen these payslips before they were provided as part of these proceedings.

12. The 2015 to 2017 Payslips show that the Claimant was paid £8 per hour throughout the period, with the usual number of hours per week increasing over time from between 10 to 20 hours per week in 2015 to between 30 to 40 hours per week in 2017.

13. The Respondent provided a list of the weeks in which the Claimant did not do any work for the Respondent [7] (the “List of Weeks Off”). According to the List of Weeks Off, in 2015 and 2017 there were 5 weeks in which the Claimant undertook no work for the Respondent and in 2016 there were only 4 such weeks.

14. The Respondent asserted that holiday pay was not paid or discussed between the parties. However, the 2015 to 2017 payslips show that an additional 4% “Holiday Pay” was paid to the Claimant for 11 weeks spread randomly throughout the 3 years [106, 111, 127, 129, 147, 152, 171, 173, 193, 196 and 197].

15. While there was no written contract between the parties there was a set of rules that the Respondent asserts applied to all of its drivers [3-5] (the “Rules”). Throughout the time that the Claimant worked for the Respondent, a copy of the Rules was on display on the wall in the area where the drivers waited to be given orders to deliver. The Claimant was aware of these Rules and looked at them from time to time while he waited to collect orders.

16. In so far as they are relevant to the issues to be determined at the Interim Hearing the Rules state as follows: “The Dispatcher has full control of the orders that you are given to deliver. Drivers will be dispatched in a timely manner, and you are expected to deliver to any area of the island. … During the busier part of the evening (up to 2200) you should return to the shop as soon as you have completed your deliveries. Coffee breaks, home visits, and collecting relatives are not permitted during these hours unless you have permission from the Dispatcher.” December 2017 to January 2019 17. It was not disputed that, at the beginning of December 2017, the Claimant started another job during the day and so asked to be removed from the Respondent’s payroll. Ms Francisco duly removed the Claimant from the payroll. However, it was agreed that the Claimant would still continue to work for the Respondent in the evenings.

18. The parties agreed that during this period the Claimant was paid on a daily basis at the end of his shift by cashing up the takings he received from the orders he delivered and taking the amount he earned from this, before putting the remaining money in an envelope and giving it to the Respondent. However, the Claimant asserted that he was also sometimes paid on a weekly basis during this period. The Respondent denied this and maintained that payment was only made to the Claimant during this period on a daily basis.

19. The Respondent provided copies of its weekly rotas for this period [203-257] (the “Weekly Rotas”), which illustrate that the Claimant usually worked between 2 to 4 shifts (or approximately 14 to 28 hours) per week. The Weekly Rotas also show that the Claimant rarely worked on a Monday or a Tuesday and the other days he took off varied each week. He often split his shifts over two days as he regularly worked half shifts.

20. Based on the List of Weeks Off, there were 5 weeks in 2018 in which the Claimant did no work for the Respondent. January 2019 to September 2019 21. It was also undisputed that in January 2019 the Claimant again asked the Respondent to pay his social security contributions as he no longer had a daytime job. The Respondent agreed and he was put back onto the payroll system.

22. The parties agreed that during this period the Claimant was paid on a weekly basis and this is evidenced by the payslips that have been provided by the Respondent for this period (the “2019 and 2020 payslips”) [26-70]. The Claimant also asserted he had not seen these payslips until they were provided as part of these proceedings.

23. The 2019 Payslips show that the Claimant was paid £11 per hour during this period and usually worked between 35 and 45 hours per week.

24. Based on the List of Weeks Off, the Claimant worked for the Respondent every week during this period. September 2019 to February 2020 25. At the Interim Hearing Ms Francisco stated that in July and August 2019 the Respondent lost a lot of business as it was losing a lot of drivers. Accordingly, in September 2019 it created a new payment system for all drivers. Under the new system the drivers were paid £10 per hour plus £1 per delivery made to compensate them for their fuel costs. They were also paid an extra 4% on top of their basic pay in respect of holiday pay and Ms Francisco explained that this was in accordance with a change in the law.

26. The Claimant asked whether this change in law applied to both people who were self-employed as well as employees and Ms Francisco said she understood it applied to anyone on the payroll. She said it applied to the Claimant because he was providing his services exclusively to the Respondent. She noted that if the Respondent did not have enough work for the Claimant to do then it would be ok for him to work as a driver for another company, but if he was needed to deliver orders for the Respondent then it would not be acceptable for the Claimant to make deliveries for another company. The Claimant said that he asked Mr Thirkell when he first started working for the Respondent if he could work as a driver for another company and he was told he could not work for the Respondent’s competition.

27. The Claimant alleged that the Respondent did not mention the new payment system to him, but he heard about it from other employees and so asked the Respondent if he could also be put onto this system. The Respondent agreed and, together with his weekly pay, on 15 September 2019, also retrospectively paid him an amount for holiday pay from the beginning of 2019 [38 and Witness Statement of Ms Francisco, paragraph 6].

28. The 2019 and 2020 Payslips from 15 September 2019 onwards, show that the Claimant was paid £10 per hour, plus 4% Holiday Pay, as well as a varying amount for “Fuel” during this period, and he usually worked between 40 and 45 hours per week. The Claimant explained that it was usual for him to work from around 6pm to 1am six days a week. He said that his hours were fixed and if he wanted to start late or finish early he needed to ask permission, which was sometimes granted and sometimes denied. He said that when less drivers were needed towards the end of the night Mr Thirkell sometimes asked as a joke who wanted to go early, but then Mr Thirkell would make an independent decision as to who should stay and who should go.

29. Based on the List of Weeks Off, there were 3 weeks in this period in which the Claimant did not work for the Respondent. Weekly Rota 30. Ms Francisco explained that she prepared a weekly rota so she knew which drivers would be working which shifts. The Weekly Rotas included in the File consist of a table with the days of the week along the top and the driver’s names down the side. Ms Francisco explained that the table was left blank either until: (a) The driver notified her that they would not be attending a shift, in which case she inserted a NO in the relevant box; (b) The driver turned up for the shift, in which case she put a tick in the relevant box and also added ½ if the driver was only working a half shift; or (c) The driver failed to turn up for the shift as expected, in which case she wrote “FAILD”.

31. In addition to this, some of the boxes had a line through them. These lines appear to indicate a planned day off for the driver.

32. It was not disputed that, from January 2019 to February 2020, the Claimant’s usual day off was Monday, but the Respondent asserted that if the Monday was a bank holiday the Claimant often chose to work that day and take the Tuesday off instead. The Claimant said that if he could not come in on one of his usual days for any reason, he would let the Respondent know, either by calling Mr Thirkell or the office or sending a text message. The Claimant also gave evidence that, on occasions, Mr Thirkell sent him messages asking why he had not come in to work when expected. Holiday Requests 33. Ms Francisco mentioned that a calendar in which the drivers could insert their holidays was kept in the area where the drivers waited for the orders. She explained that the drivers did not have to ask permission to take holiday, they just said when they were going. However, sometimes, if there were a lot of drivers off at one time the Respondent might ask a driver to take their holiday at a different time.

34. The Claimant asserted that Mr Thirkell told him he could not take holiday at Christmas one year. Mr Thirkell explained that he would not have wanted the Claimant to go on holiday at Christmas as it was a very busy period. Ms Francisco explained that the Respondent had to provide a good service at this time, otherwise it would lose business and there would not be enough work to go around in the new year. Personal Performance 35. It was not disputed that the Claimant always did his own driving and deliveries for the Respondent. No one else substituted in for him in respect of any of the work that the Respondent paid him for. The Claimant asserts that he did not think he would have been allowed to send anyone else to work in his place.

36. However, Ms Francisco alleged that someone could have filled in for the Claimant and that, whenever he told the Respondent that he could not make a shift, it is likely that, if the Respondent was short of drivers, the Claimant would have been asked if he knew anyone else who could fill in for him. Mr Thirkell stated that sometimes the drivers took other people with them on deliveries to train them and the Respondent was then happy to take the other people on as new drivers. Nature of the Relationship 37. In his witness statement Mr Thirkell asserted that the Claimant was self-employed, rather than an employee of the Respondent. He referenced the following as evidence of that fact: (a) the claimant was also selling products for his own business while working for the Respondent. Mr Thirkell made reference to seeing this on one occasion “about two years ago”. The Claimant denies doing this; (b) at around 9pm each night the Claimant stopped working for around 20 to 30 minutes to eat his staff meal, which the Respondent provided to all the drivers. He stopped regardless of whether or not there were orders that needed delivering. The Claimant alleged that if a manager was available he would obtain their permission before stopping to eat; (c) whilst waiting for orders to come in the Claimant was not given any other work to do by the Respondent; (d) the Claimant used his own car,

fuel, insurance and telephone for work and the Respondent was not liable to pay any of the Claimant’s expenses; (e) the Claimant was responsible for his own taxes and the Respondent had no responsibility for this; (f) the Claimant was free to work for the Respondent’s competitors; (g) the Claimant could choose to deliver the food himself or invite another person to join him to deliver the food; and (h) the Claimant was under no obligation to perform shifts set by the Respondent, he could accept or reject any shifts offered. Legal Submissions 38. The Respondent made reference in its response form to a 2006 claim against the Respondent where the Tribunal found that a delivery driver was not an employee of the Respondent (Benest v Robin Hood Limited 2002029/06).

39. This was a very brief judgment and accordingly it is helpful for me to set it out in full below: “Mr Thirkell’s evidence was that his arrangement with delivery drivers, including Mr Benest, was that they supplied their own cars, petrol and telephones for the purpose of the job. They would say one week how many and what hours they wanted to work the next week, and it was completely up to them if and when they worked. He paid them for the hours they worked, which they would report to him at the end of the day. So, if a driver did a delivery, and then went elsewhere for his own purposes, he could do so. Mr Thirkell told me “They are free to do what they like…..they can drop off their children.” It was clear to me that Mr Benest, like the other drivers, was not an employee of the company. He could choose when and how he worked. There was no mutuality of obligation, in that it was purely up to Mr Benest as to whether or not to work. Having found that Mr Benest was not an employee, I dismiss his claim.” The Law Definition of Employee 40. Article 1A of the Employment (Jersey) Law 2003 (the “Law”) defines ‘employee’ as follows: “(1) In this Law – (a) “employer” means a person who employs another person; and (b) “employee” means a person who is employed by an employer. (2) For the purposes of paragraph (1), a person is employed by another person if the first person works for the

second person under a contract of service or apprenticeship with the second person. (3) For the purposes of paragraph (1), a person is also employed by another person if the first person enters into any other contract with the second person under which – (a) the first person undertakes to do, or to perform personally, work or services for the second person; and (b) the status of the second person is not that of a client or customer of any profession or trade or business undertaking that is carried on by the first person. (4) It is immaterial whether a contract to which paragraph (2) or paragraph (3) refers is express or implied. (5) If the contract is express, it is immaterial whether it is oral or in writing.” 41. The law in relation to employee status, including the interpretation of Article 1A of the Law, has been set out in detail in the case of Bisson v Dore & Red Appco Cabs Limited D-34/2016, which has been cited and further analysed by the Tribunal in many cases since. In summary, in so far as it is relevant to the facts of this case, the relevant law on this matter is as set out below.

42. For someone to be considered to be an employee under Jersey law they must either be a “1A(2) Employee” or a “1A(3) Employee”, or indeed they can be both.

43. To establish that someone is a 1A(2) Employee they must satisfy the following: (a) they must be employed subject to a contract. The contract can be expressed orally or in writing, or it can be implied; (b) the contract must include a ‘mutuality of obligation’, meaning there must be an obligation on the employer to provide work and an obligation on the employee to accept an offer of work. This meaning was adopted by the Royal Court in the case of Marchem (Europe) Limited v Helen Carre [2015] JRC075 and has been referred to as “Marchem Mutuality”; (c) they must provide services personally in accordance with the contract; and (d) the employer must exercise a sufficient degree of control over the work carried out by the individual so as to make the employer the master.

44. To establish that someone is a 1A(3) Employee they must satisfy the following: (a) they must be employed subject to a contract. The contract can be expressed orally or in writing, or it can be implied; (b) the contract does not need to include Marchem Mutuality, but they must be required to provide services personally in accordance with the contract; and (c) the person to whom the services are provided is not their client or customer. Personal Performance 45. In either case, it is necessary to establish that there is an obligation on the person claiming to be an employee to provide services personally. Whether or not there is such an obligation will depend on the particular facts of the matter.

46. The terms of the agreement between the parties (both express and implied) must be carefully considered to determine whether or not the person performing the services is required to do so themselves or whether there is a genuine right of substitution, in accordance with which the person claiming to be an employee is entitled to engage someone else to provide the services on their behalf.

47. If it appears that substitution is permitted the Tribunal must look at all the evidence before it to ensure that, in reality, the nature of the relationship between the parties would allow for substitution. The Tribunal in Bisson quoted from the judgment of the Employment Appeals Tribunal in the case of Consistent Group Ltd v Kalwak [2007] IRLI 560 as follows: “The concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to provide or accept work, in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship.” 48. The Tribunal in Bisson also considered the five principles relating to personal performance as set out in the case of Pimlico Plumbers Limited & Another v Smith [2017] EWCA Civ 51 which are: “(a) an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally; (b) a conditional right to substitute another person may or may not be inconsistent with personal performance. It will depend on the precise contractual arrangements and, in particular, the extent to which the right of substitution is limited or occasional; (c) a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent

with personal performance; (d) a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance; and (e) a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.” Nature of the Relationship 52. Even if personal service is required, the service provider may still not be an employee if they are providing their services to someone who is considered to be their client or customer. Someone who is providing services directly to their clients or customers would be considered to be self-employed, rather than an employee of that client or customer.

53. The Employment Appeals Tribunal in the case of Cotswold Developments Construction Ltd v Williams [2006] IRLR 181 provides some helpful comments in relation to the question of whether or not someone is an employee or self-employed as follows: “... A focus on whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, will in most cases demonstrate on which side of the line a given person falls.” 54. These comments were approved in the case of Bates van Winkelhof v Clyde & Co LLP & Another [2014] 1 WLR 2047 where the Supreme Court found that the claimant was a ‘worker’ (a 1A(3) Employee in Jersey) rather than self-employed. A key factor in this decision was the fact that the claimant was not free to market her services as a solicitor to “the world in general”.

55. There is a lot of case law in relation to the nature of the relationship between someone who claims to be an employee and the person that they claim is their employer and I have considered several cases where there is an overlap in the factual matrix with the Claimant’s situation.

56. However, while past case law is of assistance in determining whether the Claimant was an en employee or was self employed, it should be noted that each case is very much based on its own facts and determining the true nature of the relationship between the parties is incredibly fact sensitive. Accordingly, I must carefully weigh up all of the facts in the current case to determine whether the relationship between the Claimant and the Respondent was one of employee and employer or self-employed service provider and customer. Conclusion 57. It is possible to be a 1A(2) or a 1A(3) Employee. In order to be either, there must be a contract between the alleged employer and employee. Accordingly, the first question I asked myself when determining whether or not the Claimant was an employee was whether there was a contract between the parties? There does not appear to be any dispute in relation to this question and it is clear from the evidence before me that, while there was no written contract, there was an implied contract between the parties, at least in so far as the Claimant provided services to the Respondent and the Respondent paid the Claimant for those services.

58. However, the Respondent asserts that there was no obligation on the Claimant to provide those services and that he was completely free to choose whether or not he did so once the Respondent had offered him the opportunity to do so, in effect making the contract between the parties a zero hours contract. If this is correct, there would not be Marchem Mutuality between the parties and the Claimant could not be a 1A(2) Employee.

59. I note that some of the facts before me appear to be inconsistent with this position and indicate that there may have been some mutuality of obligation between the parties, in respect of the most recent period of employment at least. However, even if the contract is a genuine zero hours contract, this could still constitute a contract for the purposes of a 1A(3) Employee and, if it can be established that the Claimant is a 1A(3) Employee, it is not necessary for me to make a determination as to whether or not there was the requisite Marchem Mutuality for a 1A(2) Employee.

60. Accordingly, I have considered whether the remainder of the requirements for a 1A(3) Employee formed part of the relationship between the parties. The next question I asked myself was, therefore, whether or not there was a requirement for the Claimant to provide services personally? Personal Performance 61. Both parties agreed that the Claimant always performed the work personally; he was only paid for the hours that he worked and at no stage was he paid by the Respondent for someone else to drive or do the deliveries in his place.

62. However, Ms Francisco asserted that if the Claimant was unable to work for any reason he may have been asked whether he knew anyone who could fill in for him. Based on the nature of the relationship between the parties, it is my view that if another driver were to fill in for the Claimant it is most likely that the other driver would have been instructed and paid directly by the Respondent and would, in effect, have had their own direct agreement with the Respondent, rather than through the Claimant.

63. In any event, the principle in Pimlico Plumbers that a “right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance”, means that even if the Claimant were permitted to substitute someone else in his place when he was unable to work, this would not prevent him from providing personal service.

64. In addition, based on the nature of the relationship between the parties, as evidenced by the positions taken by the witnesses during the Interim Hearing, it seemed unlikely to me that, if the Claimant were to be allowed to appoint a substitute, his right to do so would be completely unfettered. I believe it would be highly unlikely that the Respondent would permit just anyone to turn up and drive in place of the Claimant. It is my view that the Claimant would first need to obtain permission from the Respondent and that the Respondent would have complete discretion as to whether or not it allowed that substitute to work in place of the Claimant.

65. Accordingly, the Pimlico Plumbers principle that “a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance” is applicable and the Claimant will still be seen to be providing personal service even if the Respondent were to grant permission for a substitute to work in the Claimant’s place.

66. I also note that Mr Thirkell, in his witness statement, has said that the Claimant was free to invite someone to “join” him to deliver the food. He does not state that the Claimant was free to ask someone else to drive and deliver the food in his place.

67. Accordingly, I conclude that there was a requirement for personal performance of the services carried out by the Claimant and this element of the employee and employer relationship is present. I must now consider whether the final element required to be a 1A(3) Employee is satisfied and ask myself: was the Respondent a customer or client of the Claimant?

68. In order to answer this question the nature of the relationship between the parties must be looked at more closely to determine whether the relationship was a true employee and employer relationship or whether it was more akin to that of a self-employed service provider and customer. Nature of the Relationship 69. This case is complicated by the fact that the relationship between the parties changed over time. It is therefore necessary to consider the relevant facts for each of the different time periods in order to determine whether the Claimant was an employee for any of those periods.

70. The following facts, which are clear from the evidence provided, assist in illustrating the nature of the relationship between the parties from January 2019 to February 2020. During this period the Claimant: (b) usually worked between 35 and 45 hours per week, taking only 3 full weeks off; (c) worked relatively regular hours and had a regular day off. It is noted that his day off was occasionally changed at his request; (d) was paid on a weekly basis by the Respondent after it deducted the Claimant’s social security contribution and tax from the amount owed to him; (e) was paid 4% rolled up holiday pay on a weekly basis from September 2019 onwards and in arrears for the period from January to September 2019; and (f) was provided with a meal for each shift that he worked and was paid an amount in respect of fuel from September 2019 onwards.

71. In addition, I have taken into account the Claimant’s assertion that there was a set weekly rota in accordance with which he was expected at work on certain days and if he did not turn up he would need to notify the Respondent, which he usually did by telephone call or text message. On the few occasions when he forgot to notify the Respondent, the Claimant said Mr Thirkell called or sent him a message asking why he had not shown up. Further, the Claimant claims that if he wished to go on holiday he would ask the Respondent and he recalls one occasion where the Respondent told him he could not take holiday at Christmas. The Respondent disputed this saying that the drivers were free to work as and when they chose and could say from day to day whether or not they would work. However, based on the witness evidence given by the parties during the Interim Hearing and its consistency with the documentary evidence, I prefer the Claimant’s evidence on this point, which indicates that the Respondent exercised, at least, some degree of control over when the Claimant worked.

72. I have also considered the Claimant’s assertion that he was told by Mr Thirkell when he commenced work for the Respondent that he was not permitted to work for any other restaurant delivery services. Mr Thirkell on the other hand in his witness statement said that the Claimant was free to work for competitors. However, Ms Francisco at the Interim Hearing said that the Respondent would not have allowed the Claimant to work for a competitor if it had enough work to offer the Claimant. I was most convinced by the evidence of Ms Francisco on this point and conclude that, as the Claimant appeared to be working more or less full time for the Respondent during the period, it had sufficient work for him and he would not have been permitted to work for another restaurant delivery service. Accordingly, the Claimant was not free to market his delivery services “to the world in general” and, following the case of Bates van Winkelhof, this is inconsistent with the argument that he is self-employed and the Respondent is his client.

73. Further, I have reviewed the Rules set by the Respondent for its drivers, of which the Claimant was aware, and I note that they indicate at least a degree of control by the Respondent over the Claimant in that they seek to prohibit the drivers from stopping for a break while working and they require the drivers to deliver to wherever they are asked around the island. This type of control, although not definitive in relation to the argument that the Claimant was an employee, is indicative of the nature of the relationship being less like a service provider and client relationship and more akin to an employment relationship.

74. For the sake of completeness I have also addressed the remaining assertions made by Mr Thirkell in his witness statement, which he claims demonstrate that the Claimant was self-employed rather than an employee, and I note the following: (b) it is clear from the documentary evidence provided by the Respondent, that Mr Thirkell’s assertions that the Claimant was responsible for his own taxes and was not paid for any expenses are incorrect; (c) the assertion that the Claimant was delivering products for his own business while working for the Respondent is denied and is far from proven. Further, there is a difficulty with this argument as the Respondent’s objection to the Claimant doing this indicates a degree of control over the Claimant; (d) the fact that the Claimant used his own car, car insurance and telephone for work, while it may be of some relevance, is not determinative of the nature of the relationship between the parties; (e) the fact that the Claimant stopped for 20 to 30 minutes to eat a meal during a 7 hour shift is not unreasonable and is in no way inconsistent with being an employee; and (f) the fact that the Claimant was not provided with other work while waiting to collect a delivery is a matter for the Respondent and is in no way inconsistent with someone being an employee. Had the Claimant been asked to do something else and refused, this might, and I emphasis my use of the word “might” here, be relevant, but this is not what was alleged to have happened.

75. Finally, I have considered the 2006 claim against the Respondent where it was held that a delivery driver was not an employee. While I am not bound to follow this case it would be inappropriate for me to do so in any event. The claimant in that case was neither present nor represented at the hearing and the judgment does not make any reference to any evidence put forward by him. The facts of that case can also be distinguished from the facts of the current claim as the claimant in the 2006 case was permitted to go somewhere else for his own purposes during a shift, while the Respondent’s Rules have made it clear that the Claimant in the current claim was not. In addition, there is a significant body of case law since 2006 which has considered the relevant law in much greater detail and which it is more appropriate for me to have regard to.

76. Taking into consideration the facts that I have highlighted and determinations I have made above, it is my view that the nature of the relationship between the parties during this period was that of an employee and employer. Many of the hallmarks of such a relationship are present, in that the Claimant received a regular salary for regular work, he was paid holiday pay and expenses, he was given a meal, and his tax and social security contributions were paid by the Respondent. Contrastingly, I see very few factors that would indicate self-employment and no evidence has been put before me to suggest that and the Respondent could be considered to be either a client or a customer of the Claimant. For example, the Claimant did not invoice the Respondent nor was I shown any evidence that he marketed his services in any way. In fact, there is evidence to suggest that the Respondent would not permit the Claimant to perform the same type of work for other ‘clients’.

77. In conclusion, from January 2019 to February 2020, the Claimant was an employee of the Respondent in accordance with Article 1A(3) of the Law. It therefore follows that the Claimant has sufficient continuous employment to qualify to bring a claim for unfair dismissal. All of the Claimant’s Claims shall proceed and a further case management hearing shall be listed to discuss the issues that are to be determined at the final hearing and the steps that must be taken by the parties to prepare for that final hearing. Continuous Employment 78. However, there is one further issue for me to determine as part of this Interim Judgment, as it is relevant to the amount of any award that may be made if it is found at the final hearing that the Claimant was unfairly dismissed. That is, how long has the Claimant been continuously employed for or, in other words, how long has he been an employee of the Respondent without any break in that employment?

79. I have already determined that the Claimant was an employee from January 2019 to February 2020, but I must also determine whether he was an employee from December 2017 to January 2019 and, if I find that he was, whether he was also an employee from February 2015 to December 2017.

80. It is my view that, in respect of the entire period in which the Claimant worked for the Respondent, from February 2015 to February 2020 there was some form of contract in place, in so far as the Claimant provided a service to the Respondent and the Respondent in turn paid him for that service.

81. During the Interim Hearing the Respondent asserted that the Claimant was, between December 2017 and January 2019, being paid directly by the customers, the inference being that the Claimant was working directly for the customers and not for the Respondent. However, having considered the way in which payment was made during this period, I conclude that while the Claimant may have taken his wages from the cash that was given to him by the customers at the end of the night, this was done by agreement with the Respondent and the Claimant was still being paid for the work he performed by the Respondent. The customers were contracting with the Respondent when they placed their order, their food was delivered by a driver appointed by the Respondent and the customers were unlikely to have had any say over who delivered the food or how much that person got paid to do so. If a customer were to pay by cheque rather than with cash, the cheque would be made out to the Respondent, not the Claimant. Accordingly, the argument that the Claimant contracted directly with the customers does not hold any weight; the contractual relationship was between the Claimant and the Respondent.

82. I also find that, in respect of the entire period in which the Claimant worked for the Respondent, the Claimant was required to provide the services personally under that contract. The facts that are relevant to this issue, which I have referred to above, were the same throughout the entire period.

83. Accordingly, I am left to consider whether the nature of the relationship between the parties during the earlier periods in which the Claimant worked for the Respondent was more akin to that of a self-employed driver and his customer or an employee and his employer.

84. I have taken the following facts into consideration when determining this issue in respect of the period from December 2017 to January 2019. During this period the Claimant: (b) usually worked between 14 to 28 hours per week, taking only 5 full weeks off; (c) was paid on a daily basis and was responsible for paying his tax and social security contributions; and (d) was not paid any holiday or expenses but he was provided with a meal for each shift that he worked.

85. I have also considered the fact that the Claimant usually had the same 2 days off per week and, based on the Weekly Rotas, it appeared that he usually notified the Respondent in advance if he would not be working on one of the other 5 days. There were only 3 occasions where Ms Francisco wrote “FAILD” on the Weekly Rotas, indicating that the Claimant did not turn up when he was expected to.

86. Further, I have had regard to whether or not the Claimant was permitted to work as a delivery driver for other restaurant delivery services during this period. I have already addressed the evidence on this and concluded that I am most persuaded by the position that the Claimant would not have been permitted to do so as long as the Respondent had enough work for him. The parties did not address whether or not there was enough work for the Claimant at this time in their evidence. However, I note that the fact that the Claimant was not working full time for the Respondent during this period was because he had found a day time job elsewhere and not because the Respondent did not have enough work for him. Mr Thirkell indicated during the Interim Hearing that it was often a challenge to ensure that the Respondent had enough drivers. I therefore conclude, on a balance of probabilities, that, while the Claimant was permitted to undertake an alternative day time job, the Respondent would not have allowed him to work as a delivery driver for another restaurant delivery company.

87. In addition, I note that the Respondent’s Rules, which indicate some degree of control by the Respondent over the Claimant, were in place during this period.

88. Finally, I considered whether the Claimant having another job precluded him from being an employee of the Respondent’s and I conclude that it did not. In particular, I had regard to the case of Diogo Lopes v Fresh 89. Dough Company despite also being in full time employment with another employer. I agree with the deputy chairman in that case that I know of no reason, as a matter of law, why someone cannot be an employee of two employers at the same time if that person falls within the definition of employee under Article 1A of the Law in respect of both employers.

90. Based on the facts highlighted above, it appears to me that the relationship between the parties from December 2017 to January 2019 was nearer the self-employed end of the scale than the relationship during the final period of the Claimant’s employment. For example, no holiday pay or expenses were paid and the Claimant was responsible for paying his own tax and social security. However, in my view the relationship was still closer to that of an employee and employer than someone who was self-employed providing services to a client. In particular I reiterate that I have been given no evidence to demonstrate how the Respondent could be considered a client or customer of the Claimant and I have concluded that the Claimant would not have been permitted to perform the same services for anyone else.

91. Accordingly the Claimant was also an employee as defined under Article 1A(3) of the Law during this period and he therefore had continuous employment from December 2017 to February 2020.

92. Finally, I must consider whether the Claimant was also an employee for the first period of his employment, from February 2015 to December 2017. The facts during this period were more similar to those in the final period (from January 2019 to February 2020) than on the middle period (December 2017 to January 2019) of his employment and there was no additional evidence that pointed to the Claimant being self-employed. Accordingly, I conclude that the Claimant was also an employee during this period and his continuous employment runs for the full period in which he worked for the Respondent, from February 2015 to February 2020. Mrs H Westmacott, Deputy Chairman Sent to the parties on: 12 October 2020