Mr B Ikejiaku v British Institute of Technology Ltd England (BITE) (England and Wales : Breach of Contract) -[2018] UKET 3200947/2017- (6 July 2018)

Key Facts

Issues

• The court determined whether the Claimant was an employee or self-employed consultant, which was crucial for establishing his rights under employment law. The Respondent initially conceded he was an employee prior to March 2016 but later attempted to resile from this position.
• The court examined whether the Claimant was treated less favorably due to his race, particularly regarding his removal as Course Leader and other work-related decisions. The court found the Claimant did not prove facts from which discrimination could be inferred, and the claim was out of time.
• The court assessed the Claimant's entitlement to paid holiday and whether the Respondent made unauthorised deductions from his wages by failing to provide holiday pay. The court found the Claimant was entitled to paid holiday, and there were unauthorised deductions from his pay.
• The court assessed whether the Claimant made protected disclosures about tax and national insurance non-payment (in October 2015) and about students copying on exams (on 12 July 2017), and whether these disclosures led to his dismissal on 13 July 2017. The court found the second disclosure was the sole reason for dismissal.
• The court determined whether the Claimant's dismissal on 13 July 2017 was automatically unfair because it was due to his protected disclosure made on 12 July 2017. The Respondent claimed it was for business reasons (withdrawal of validation), but the court found the protected disclosure was the sole reason for dismissal.

Holdings

• All other claims in respect of deductions and/or breach of contract were dismissed. The Tribunal found that the 9 March 2016 settlement agreement waived any earlier breach of contract regarding pay, and the Claimant's other claims were either out of time or not supported by the evidence.
• The Tribunal determined that the sole reason for the Claimant's dismissal on 13 July 2017 was the protected disclosure he made on 12 July 2017. The Tribunal rejected the Respondent's claim that the dismissal was due to business reasons related to the London Metropolitan University partnership termination.
• The Tribunal determined that the Claimant was continuously employed by the Respondent from February 2013 until his dismissal on 13 July 2017. This finding was based on the nature of the relationship, including the Claimant's obligation to work specific days, the Respondent's obligation to pay a fixed amount, and the Claimant's integration into the Respondent's organization.
• The Tribunal determined that the Claimant's claims for race discrimination and victimisation fail. The Tribunal did not find that Mr. Farmer made the "Asians" comment, and the Claimant did not provide sufficient evidence to prove race discrimination in his removal as Course Leader.
• The Tribunal found that the Claimant made two protected disclosures: one in October 2015 when he contacted HMRC about tax and national insurance payments, and another on 12 July 2017 when he disclosed concerns about students copying work in exams. Both disclosures were deemed protected under the Employment Rights Act 1996.
• The Tribunal found that claims for unfair dismissal in February 2016 were out of time. Even if the Claimant had been dismissed in February 2016, it was reasonably practicable for him to have brought a claim in time, as he was a qualified lawyer and aware of his rights.
• The Tribunal found that the Respondent made an unauthorised deduction from the Claimant's wages on termination of employment in respect of outstanding holiday pay. The Claimant was entitled to payment in lieu of accrued but untaken holiday.
• The Tribunal determined that the Claimant was entitled to four weeks' notice of termination, with credit given for the two weeks already paid. The Respondent had provided only two weeks' pay in lieu of notice, which was insufficient.

Remedies

• The Claimant was entitled to paid holiday under Working Time Regulations but did not receive it after March 2016. The Tribunal found an unauthorised deduction from pay for two weeks' holiday in November 2016 and further deduction on termination. The Claimant is entitled to payment for accrued but untaken holiday.
• The agreement in place from March 2016 did not satisfy requirements for written particulars of employment. As the Claimant had other successful claims, he is entitled to an award of either two or four weeks' pay.
• The Claimant was entitled to four weeks' notice based on his length of service, but was only given two weeks' pay in lieu of notice. The Tribunal found he is entitled to a further two weeks' pay.

Legal Principles

• The court applied Section 230 of the Employment Rights Act 1996, which defines an employee as someone working under a contract of service or apprenticeship. The tribunal found that the Claimant's relationship with the Respondent met the criteria for employment status, including mutual obligations, control, and integration into the organization, despite the Respondent's attempt to characterize the relationship as consultancy.
• The court applied Section 43B of the Employment Rights Act 1996 to determine whether the Claimant's disclosures were protected. The tribunal found that the Claimant made two protected disclosures: one in October 2015 regarding non-payment of tax and national insurance, and another on 12 July 2017 regarding students copying work. The court determined that the second disclosure was the sole reason for the Claimant's dismissal, leading to a finding of automatic unfair dismissal.
• The court applied Section 103A of the Employment Rights Act 1996, which provides that dismissal is automatically unfair where the sole or principal reason is a protected disclosure. The tribunal found that the Claimant's dismissal on 13 July 2017 was solely because of his protected disclosure on 12 July 2017, resulting in a finding of automatic unfair dismissal.
• The court applied Section 13 of the Equality Act 2010 to consider the Claimant's race discrimination claim. The tribunal found that while the Claimant had proved facts from which discrimination could be inferred regarding his removal as Course Leader, the claim was out of time and not extended as it was not just and equitable to do so. The claim for race discrimination was dismissed.

Precedent Name

• Shamoon v Royal Ulster Constabulary
• Cotswold Developments v Williams
• Kilraine v LB of Wandsworth
• Cavendish Munro v Geduld
• Nethermere v Gardiner

Cited Statute

• Deduction from Wages (Limitation) Regulations 2014
• Employment Rights Act 1996
• Working Time Regulations 1998
• Equality Act 2010

Judge Name

• Ms L Conwell-Tillotson
• Employment Judge Russell
• Mrs P Alford

Passage Text

• The court determined that the protected disclosure made on 12 July 2017 was the sole reason for the Claimant's dismissal on 13 July 2017.
• The court found that the race discrimination claim would have succeeded in the absence of time constraints, but was time-barred under the Equality Act 2010.
• The court found that the Claimant remained an employee of the Respondent even after the new consultancy agreement was signed, as the change in 'label' did not reflect the real relationship between the parties.