Mr T Connelly v Brightwork Limited — 2020

Following earlier preliminary hearings and a prior judgment that dismissed all but one of the claimant's original claims because he was found not to be an employee, this hearing concerned only his application to amend the proceedings to add claims under the Agency Workers Regulations 2010 against Brightwork Limited and a proposed second respondent. The tribunal noted that the claimant relied on written material and oral submissions referring to regulations 17(1), 17(2), 17(3)(a)(iii) and 17(5), but it found that the original claim form did not properly identify any AWR claim.

Applying the Selkent approach, and referring to authorities including Ali v Office for National Statistics, Abercrombie v Aga Rangemaster Ltd, Housing Corporation v Bryant and GTR Ltd v Rodway, the tribunal held that the proposed AWR case was effectively a new claim, with insufficient causal link to the pleaded case. It considered that the claimant's complaints about bullying, unsafe work, moving heavy casks, forklift fumes and being left out of meetings did not fit the rights protected by the AWR, which concern matters such as pay, working time, night work, rest periods, breaks and annual leave. The tribunal also noted that regulation 17(1) was unavailable because it applies to an agency worker who is an employee, and the claimant had already been found not to be an employee.

The tribunal further found that the amendment was out of time by about nine months on its analysis, and that the claimant had not complied with the earlier direction to provide full written details within seven days. It held that allowing the amendment would cause material prejudice, delay and cost, and would still require further specification. The claimant's status as a litigant in person was taken into account, and the tribunal noted that his separate protected-disclosure detriment claim would proceed to a final hearing, but the balance of factors strongly favoured refusal of the amendment.