Claimant v Brightwork Limited — 2017

At the preliminary hearing on 7 July 2017, Employment Judge Shona MacLean heard evidence from the claimant and from the respondent’s witnesses, Kim Hill and Rebekah Graham. The tribunal found the claimant gave his evidence honestly based on his perception, and found the respondent’s witnesses credible and reliable. The issues were whether the claimant had made a protected disclosure under section 43A of the Employment Rights Act 1996 and whether he was an employee of Brightwork Limited.

On employment status, the tribunal found that the claimant had signed a contract for services, was free to work for other agencies or for other people, and there was no obligation on Brightwork to obtain work for him or on him to accept any work offered. When he was on assignment, the client controlled the work he did, including how and when he worked. The tribunal accepted that tax and national insurance were deducted and a P45 was issued, but treated that as a neutral or statutory factor. Applying Ready Mixed Concrete, it concluded that the claimant was not an employee of the respondent.

On protected disclosure, the tribunal referred to section 43B ERA 1996 and Cavendish Munro Professional Risks Management Ltd v Geduld. It considered the claimant’s email of 6 January 2017 about a red bucket being used in a kitchen and accepted that it conveyed facts. However, it was not satisfied that the claimant’s belief in the public interest, and in the existence of a relevant health and safety risk, was reasonably held on that date. The tribunal noted that he had not raised the matter directly with Mrs Leen, had not made enquiries about whether his colleague Joe had spoken to her, had not raised it with SLC, and had not explained why he thought the practice would continue after his placement ended. It therefore held that the claimant had not made a protected disclosure under section 43A ERA 1996. No remedy was awarded.