Mr McKetty (Employment Law consultant) For the v Ms Bann and 2 others — 2021

The claimant worked as a Work Project Supervisor from 16 March 2019 and was attacked by a service user on 15 June 2019. At the preliminary hearing he withdrew the whistleblowing claim under s47 ERA 1996. The remaining case was a s44 health and safety detriment claim, pleaded as failures to provide a safe working environment, assurances after the incident, safe equipment and proper pay, but the tribunal found the only properly pleaded detriment was the 15 June 2019 incident itself.

The tribunal held the s44 claim was out of time under s48(3) ERA 1996. It found the limitation deadline was 14 September 2019, that ACAS early conciliation did not assist because contact was made only after that date, and that no case had been made out for a further extension on the basis that it was not reasonably practicable to present the claim in time.

In the alternative, the tribunal found the claimant was not an employee of either the First or Third Respondent. It accepted that he had a contract with Exceed Umbrella Ltd, that R3 was an agency that found him work with R1, and that R1 controlled the workplace, but held there was no sufficient mutuality of obligation or other basis to imply a contract of employment between the claimant and R1 or R3. Further in the alternative, the tribunal said the claim had no reasonable prospects of success because s44 requires a detriment caused by the worker leaving, or taking appropriate steps to protect himself, in circumstances of danger, whereas the claimant's case was instead framed as a failure to provide a safe system of work and to prevent the attack.

The tribunal dismissed the s44 claim and made a costs order. After considering the respondents' claimed costs and the claimant's means, it ordered him to pay £600 to the First Respondent and £600 to the other respondent referred to in the costs order.