Case 3201420/2019 · Employment Tribunal
Mr R Richardson v Extreme Roofing Limited — 2020
- Case reference
- 3201420/2019
- Decision date
- 20 August 2020
- Jurisdiction
- England & Wales
- Judge
- Employment Judge McLaren Members
- Panel members
- Mr. T Burrows, Mr. M. Rowe
Parties
2 namedClaimant
Mr R Richardson
Respondent
Key findings
Tribunal's reasoningThe tribunal found that the parties' relationship began on 8 June 2018, when the claimant helped on a roofing job and was then paid £40 per day. From October 2018 the respondent repeatedly asked him to obtain a UTR and register as self-employed. Applying Ready Mixed Concrete, the tribunal held that although there was personal service and some day-to-day control, there was no mutuality of obligation, no effective right of substitution, and no guaranteed minimum work, so the claimant was neither an employee nor a worker.
On the race discrimination complaint, the tribunal applied the Igen v Wong burden of proof approach and found that the claimant had not proved facts from which an inference of discrimination could be drawn. It accepted the respondent's explanation that it did not investigate the grievance because it considered the engagement had ended on 12 April 2019 and that it had no standing to investigate a grievance between two self-employed subcontractors; race played no part in that decision.
On harassment, the tribunal found there was no evidence that Mondi called the claimant gay or asked him to rub his back. It also held that Mondi was neither an employee nor an agent of the respondent for section 109 Equality Act 2010, so the respondent was not vicariously liable for any alleged conduct by him, and in that context it did not make a finding on the bag-search and condom allegation.
The tribunal found that the engagement ended on 12 April 2019, before the grievance letter of 29 April 2019. It accepted the respondent's evidence that the reason was the claimant's failure to provide the tax-status documentation required for its CIS process, not anything said in the grievance. Because he was not an employee, the unfair dismissal and automatic unfair dismissal claims failed. Because he was not a worker, the claims for unpaid wages, holiday pay and statutory notice also failed. The separate claim for £150 for damage to his gloves and trainers failed because there was no vicarious liability.
No monetary award was made.
Claims and outcomes
7 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Race discrimination | Direct discrimination under section 13 Equality Act 2010. The tribunal found the respondent did not investigate the grievance because it believed the engagement had ended on 12 April 2019 and that it had no standing to investigate between two self-employed subcontractors; race played no part. | Dismissed | Race | — |
| Harassment | Section 26 Equality Act 2010 harassment allegations that Mondi called the claimant gay, searched his bag and commented on a condom, and asked him to rub his back. The tribunal found no evidence that the 'gay' or 'rub my back' incidents occurred and held the respondent was not vicariously liable for Mondi in any event. | Dismissed | — | — |
| Unfair dismissal | Includes the ordinary unfair dismissal claim and the allegation of automatic unfair dismissal for asserting a statutory right under section 104 ERA 1996. The tribunal held the claimant was neither an employee nor a worker and found the engagement ended on 12 April 2019 because he had not provided the required tax-status documentation. | Dismissed | — | — |
| Unlawful deduction from wages | Claim for unpaid wages and related shortfalls, including the amounts said to be owed for work and travel. The tribunal held the claimant was not a worker within section 230(3) ERA 1996. | Dismissed | — | — |
| Holiday pay | Claim for accrued holiday pay under the Working Time Regulations 1998. The tribunal held the claimant was not a worker, so no holiday entitlement arose. |
Legal tests applied
6 references- Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance
- Igen v Wong Ltd burden of proof
- Barton v Investec Henderson Crosthwaite Securities Ltd
- s.109 Equality Act 2010
- s.230(1) and s.230(3) Employment Rights Act 1996
- s.104 Employment Rights Act 1996
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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