Mr P McAuley v Ethigen Ltd — 2023

The tribunal held that it had no jurisdiction to hear the Protection from Harassment Act 1997 claim. It reasoned that the Employment Tribunal is a statutory tribunal with only express powers, that section 8(2) of the 1997 Act does not expressly confer jurisdiction on it, and that the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 was concerned with breach of contract claims rather than a statutory delict claim under the PHA. The claimant's reliance on earlier cases was rejected as a misreading of those decisions.

The unfair dismissal claim was dismissed because the tribunal found that there was no contract at all between Mr McAuley and Ethigen Ltd, let alone a contract of employment. The tribunal accepted that the claimant had signed a contract with the agency Red Rock on 29 June 2022, was paid by Red Rock, and was told by Red Rock that his assignment with Ethigen had ended and that another assignment was available. Applying the James v Greenwich London Borough Council guidance on implied contracts in agency relationships, the tribunal found the arrangements were a genuine agency arrangement and that there was no evidential basis to imply a contract between the claimant and the end-user.

The remainder of the claim, which included the Regulation 17(2) Agency Worker Regulations detriment claim, was struck out under Rule 37(1)(b). The tribunal found that Mr McAuley's conduct of the proceedings was scandalous, vexatious and unreasonable, relying on the volume and tone of his correspondence, repeated misrepresentations of what others had said, intemperate criticism of the judge and the respondent's agent, and unfounded allegations of serious wrongdoing against witness DG. It concluded that a fair trial would not be possible if the case continued and that no lesser sanction would be proportionate.

The tribunal said that if it had been required to decide the respondent's alternative strike-out application under Rule 37(1)(a), it would have struck out the bin-duty aspect of the AWR claim because the pleaded protected acts happened after the detriment, and it would have found no reasonable prospects in relation to the termination-of-assignment aspect. It also said that, had it needed to decide the claimant's amendment application, it would have refused permission to add Equality Act and section 47B ERA claims because they were new, out of time, and not justified on Selkent principles. No monetary remedy was awarded.