In person For the v Respondent — 2019

At the open preliminary hearing on 13 December 2019, the claimant sought to pursue complaints of direct disability discrimination, discrimination arising from disability, disability-related harassment, failure to make reasonable adjustments, victimisation, holiday pay and less favourable treatment of an agency worker. The respondent applied to strike out the claims, or alternatively for a deposit order, contending that the claimant was an agency worker supplied through an umbrella company and agency arrangement rather than an employee.

Employment Judge Brown held that the true nature of the engagement was an agency worker arrangement, not employment. The claimant, an employment solicitor, was aware of the contractual structure before he started; work orders were used to obtain payment; and the documents available to the tribunal were consistent with the provision of work through Parasol Limited and Netforte Limited to the respondent. The judge found nothing to suggest a sham arrangement and said it was not necessary to imply a contract of employment between the claimant and the respondent.

The strike-out application failed. Applying the authorities on vexatious claims and no reasonable prospect of success, the tribunal held that the discrimination allegations turned on disputed facts and could not be struck out at that stage. The holiday pay point under the Agency Worker Regulations was also not struck out: the judge referred to the claimant's evidence that he had been paid rolled-up holiday pay and said the claim was not necessarily vexatious, particularly if the calculation was not transparent and comprehensible. The judge was not satisfied that the claimant had intended to bring a disability discrimination claim before the engagement began, finding that his canteen comments were ambiguous.