Mr D Hadam v Clearfield Recruitment Ltd and 2 others — 2023

At the preliminary hearing, the Claimant withdrew his unfair dismissal claim against Exchequer Solutions Limited and his claim under section 111 Equality Act 2010, and both were dismissed on that basis. The remaining claim against Exchequer was under section 112 Equality Act 2010, alleging that Exchequer knowingly aided Clearfield Recruitment Ltd and Smart Electrical & Security Limited to discriminate against him by issuing a contract said to place him outside Equality Act protection.

The tribunal held that the section 112 claim was presented about five months out of time and that it was not just and equitable to extend time under section 123 Equality Act 2010. It found that the Claimant had been aware of the relevant issues in September 2021, had already complained about the contract terms at the time, and could have included the claim in his earlier February 2022 claim. The tribunal also took the view that there was no merit in requiring Exchequer to answer the out-of-time claim.

On the substance, the tribunal reviewed the registration records and the 17 September 2021 self-employed contract sent by Exchequer. It accepted that a right of substitution can indicate that a worker is not employed for Equality Act purposes under section 83(2), but it did not accept that Exchequer included that term in order to help the other respondents discriminate against the Claimant. The contract was in standard form, the contemporaneous records did not show that Exchequer understood the legal significance of the substitution clause, and the contract was sent after the alleged termination had already been communicated.

The tribunal also dealt with an application to amend the claim against Clearfield. It refused the proposed new allegation that Mr Burdass decided to issue a contract to place the Claimant outside Equality Act protection, applying Selkent Bus Co Ltd v Moore and concluding that it was out of time and had little or no reasonable prospect of success. It did, however, allow an amendment alleging that Clearfield discriminated, harassed or victimised the Claimant by not offering him work as an electrician's mate, leaving that allegation to proceed in the main claim.