Mr Stefan Wawrzyniak v R1) Pertemps Recruitment Partnership Ltd R2) Unipart Group Limited — 2022

The claimant, an agency worker assigned to Unipart's Alfreton warehouse, brought Regulation 5 complaints under the Agency Workers Regulations 2010 about pay, holiday entitlement, compassionate leave and paid breaks. The tribunal accepted that there were three classes of worker at the site, including Agenda for Change employees, former DHL employees and Unipart employees, and accepted Mr Hind's evidence that the only employees with different terms and conditions from the claimant were the Agenda for Change employees. On that basis, and comparing the claimant with the relevant Unipart employees, the tribunal struck out the Regulation 5 complaints about pay, holiday entitlement and additional or longer paid breaks because there was no real prospect of showing a difference.

The separate claim that the claimant was entitled to take and be paid for five days compassionate leave was not struck out. The tribunal said it was arguable that compassionate leave could fall within 'pay' for the purposes of Regulation 6, and left that issue, together with the timeliness question under Regulation 18, to the final hearing.

The claimant also sought to add a Regulation 13 claim based on his 25 November 2021 letter, but permission to amend was refused under the Selkent approach. The tribunal treated it as a new cause of action, noted that it was about four months out of time, and took into account the timing of the application and the potential hardship to the respondents.

After the claimant was removed from the Alfreton site following his online post, the tribunal dealt with claims under Regulation 17. The Regulation 17(1) unfair dismissal claim against R1 was struck out because the tribunal considered the evidence showed the principal reason for removal was the claimant's public post, and the parallel Regulation 17(2) detriment claim against R1 was struck out for the same reason. By contrast, the Regulation 17(2) detriment claim against R2 was allowed to proceed, because the tribunal considered there was an arguable case that the claimant's post amounted to an allegation of a breach under Regulation 17(3)(a)(v) and that R2's instruction to remove him from the site could amount to a detriment. No deposit order was made against R2.