Adding Second Respondent Without New ACAS Certificate Allowed in Employment Tribunal

OUTCOME: Allowed in Part

Case Number: 2302989/19V 2305706/19V

September 2017

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: Croydon by cloud video platform

On: 25 November 2020

PRELIMINARY HEARING

Before: Employment Judge Nash

Appearances For the claimant: [redacted]

In person For the respondents: [redacted]

JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

1. At this hearing, the tribunal made a number of determinations over the course of the day. All determinations were included in the judgment. These written reasons include reasons for the determinations made in the judgment, save for the claims dismissed upon withdrawal.

Procedural History

2. The claimant entered into ACAS early conciliation against the first respondent in the name of [RESPONDENT] on 30 May 2019 and received his certificate dated 14 July 2019. He presented his first ET1 under claim number 2302989/19 on 29 July 2019 against the first respondent only.

3. The claimant entered into ACAS early conciliation against the [NAME] on 27 December 2019 and received a [NAME] certificate dated 30 December 2019. He presented his [NAME] ET1 under claim number 2305706/19 on 29

Case Number: 2302989/19V 2305706/19V

September 2017 December 2019 against the [NAME]. There was a third respondent, but this claim was rejected by the tribunal.

4. The claimant obtained two further ACAS certificates dated 30.12.19 one against the first and one against the [NAME] respondent.

5. The two claims were consolidated at a preliminary hearing by Employment Judge Wright on 25.6.20.

Issues

6. Following discussion with the parties, it was agreed that the tribunal would determine the following issues: -

a. Was the claim against the [NAME] respondent correctly accepted by the tribunal considering the requirements of the ACAS early conciliation scheme?

b. Who was the claimant’s employer? It was agreed that the claimant was employed by the [NAME] respondent until 1 October 2018. The claimant’s position was that he was employed by the first respondent under an implied contract from 1 October 2018. The respondents’ position was that the [NAME] respondent continued to be his employer at all times.

Brief Precis of Facts

7. The following facts were relevant to the issues.

8. The claimant is a British citizen. In Denmark the claimant entered into an employment contract, a contract of service, with the [NAME] respondent, a [COMPANY], on 15.11.15.

9. The claimant sought to return to London and to be employed by the first respondent, a [COMPANY].

10. The claimant’s case was that the [NAME] respondent told him that he would be an employee of the first respondent once he developed a pipeline of projects to justify the move. The first respondent would employ him in London initially on a three-month contract on the basis that he worked on a [NAME]. He would then be moved to a permanent contract with the first respondent. The respondents’ case was that the claimant was assigned to London as an employee of the [NAME] respondent and no assurances were given as to future employment by the first respondent.

11. The claimant moved to London in August/September 2018. Once in the UK his case was that, as expected, he worked a good deal on a [NAME] in Serbia whilst waiting for a UK opportunity.

12. On 20 November 2018 he signed an [NAME] with the [NAME] respondent. His case was that, having already relocated, he felt that he had no effective

Case Number: 2302989/19V 2305706/19V

September 2017 choice but to sign the contract although it was not what had been promised. He considered that the [NAME] contained worse employment terms than in his original contract with the first respondent.

13. The [NAME] described the first respondent as the “home company” and the [NAME] respondent as the “[COMPANY]”. According to the [NAME], the claimant, “will be employed as [NAME] manager and will be reporting to [a [NAME]] during the assignment period” and he would be based in London. The contract stated that the assignment period was from 1.10.18 to 31.12.08. His salary was unchanged and paid in [RESPONDENT] by the [NAME] respondent into his Danish account. There was no per diem (as common in a so-called ex pat deal).

14. Clause 5 provided that, “The [NAME] will continue coverage by social in the home country” (sic). Clause 6 provided that “pension contributions will continue in accordance with home company procedures. Clause 7 provided that the claimant was entitled to support with his tax return in the UK. The contract provided that estimated UK taxes would be withheld at payroll and settled after the filing of the UK tax return (although this did not happen in practice). Annual leave would be in accordance with the [NAME] respondent’s standard terms. It was stated that it was expected that the claimant would not return to Denmark.

15. Whilst working in the UK the [NAME] respondent paid taxes on the claimant’s salary into his Danish bank account. However, it later concluded that this was in error because he had earned the money in the UK. It then made PAYE payments to the [NAME] and tried (and at the date of hearing continued to try) to get the money back from the [NAME].

16. The [NAME] expired on 31.12.18. The claimant continued to work in the UK. On 14 March 2019 the [NAME] respondent emailed the claimant enclosing a signed extension to this [NAME] until 31.03.19. This was signed by the claimant’s managers in both the first and [NAME] respondent. The email expressly referred to “the extension of your short-term assignment contract.” The claimant was asked for his [NAME] certificate. The [NAME] respondent sent a follow up email on 19 March asking him for any questions and otherwise asking him to countersign the addendum.

17. After February, the claimant said that he had no [NAME] contact with Denmark.

18. The claimant returned to Denmark on a temporary basis in May 2019. The [NAME] respondent dismissed the claimant on 28.05.19 with effect on 30.09.19 on conduct grounds.

The [NAME] Respondent

19. The first issue for the tribunal was whether the claimant could proceed against the [NAME] respondent although, when he presented his claim on 29.12.19, he did not have an ACAS certificate in the name of the [NAME] respondent. The tribunal heard

Case Number: 2302989/19V 2305706/19V

September 2017 submissions from the parties on this issue but no evidence as the facts were not in dispute.

20. The applicable law is found firstly at s18 Employment Tribunals Act 1996 as follows

18ARequirement to contact ACAS before instituting proceedings (1)Before a person (“the [NAME]”) presents an application to institute relevant proceedings relating to any matter, the [NAME] must provide to ACAS prescribed information, in the prescribed manner, about that matter. … (8)A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4).

21. This is subject to paragraph 4 of the Schedule to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 as follows

If there is more than one [NAME], the [NAME] must present a separate early conciliation form under rule 2 in respect of each respondent …

22. The Tribunal determined the issue as follows.

23. The tribunal firstly considered the caselaw. In [COMPANY] v [COMPANY] [EAT] 27.01.16 the Employment Appeal Tribunal under its [NAME] deprecated what it termed satellite litigation concerning the early conciliation process. According to [NAME] J in [NAME] v [NAME] and another UKEAT/0305/16, “it is no part of the purpose of the early conciliation provisions to encourage satellite litigation”. Echoing Her Honour Judge Eady QC in Mist (paragraph 53), Langstaff P in Drake said:

“35. It is a happy consequence of my reasoning that the appeal is to be dismissed: if it were not so, there could be a real risk that satellite litigation in respect of the provisions of early consideration might proliferate, with the same stultifying effect that litigation …in respect of ... the dispute resolution procedures ... Since it appears to have been part of [NAME]’s intention in enacting the Employment Tribunals Act 1996, sections 18A, 18B and 18C, in the terms in which they were enacted, and the Rules under them, to avoid such a position (see, for instance, the broad reference to “matter”, and the absence of requiring any particular detail of any particular “matter” to be specified) and to avoid formalities fettering a fast and fair process of justice, I am confident that the view I have reached better serves its purpose and he compared alternative approach.

24. It was determined in [NAME] that where there was an application to substitute a fresh respondent there was no need for a [NAME] certificate. In [COMPANY] v [NAME] 2017 ICR 73, EAT, there was a similarly purposive, non- technical approach in respect of a requirement to contact ACAS relating to any matter.

Case Number: 2302989/19V 2305706/19V

September 2017 25. In [NAME] v [[COMPANY] 2019 ICR D6, EAT the Employment Appeal Tribunal held that it is a question of fact and degree whether a [NAME] tribunal claim relates to the same matter as the first claim. [NAME] J held in [COMPANY] v Mills 2016 ICR 252, EAT, that s18A should be given a broad interpretation in order to avoid satellite litigation; amendment is a matter for the tribunal’s case management powers and thus out with s18A.

26. The claimant in these proceedings chose to proceed by way of fresh claim, rather than applying to amend his existing claim to join a [NAME]. The tribunal accepted that he did so because the first respondent stated in its response in clear terms that the [NAME] respondent was in fact the employer.

27. The tribunal considered if the fact that this was a fresh claim differentiated this situation from that in [RESPONDENT], where the first respondent had identified another entity as the correct employer in its response and the claimant had applied to amend the original claim to include the new entity. This claimant did not, for example, present a claim against two respondents having obtained a certificate against only one of them.

28. The tribunal sought to follow the guidance from the EAT that tribunals should seek to avoid satellite litigation on technical issues under the early conciliation scheme, in contrast to the complex satellite litigation caused by the now defunct Statutory Dispute Resolution Procedures. If the claimant had sought to add the [NAME] respondent by means of an amendment, following [RESPONDENT], there would be no obvious reason to refuse the amendment. The sole reason the claimant presented his claim against the [NAME] respondent, was the position of the first respondent.

Accordingly, the tribunal could not see a valid distinction between a claimant who seeks to add a [NAME] respondent in these circumstances by way of amendment, and a claimant who seeks to do the same by way of a new claim and consolidation.

29. The tribunal also bore in mind that the claimant was unrepresented. The tribunal had seen fit to consolidate the two claims at the first preliminary hearing. The tribunal found there was a sufficient analogy between a tribunal exercising its case management power to amend a claim to add a respondent, and a tribunal exercising its case management power to consolidate claims, which have effectively the same result.

30. Accordingly, the tribunal determined that the claim against the [NAME] respondent was correctly accepted.

31. There was a further issue in that the number of the ACAS certificate was incorrect on the claim form. The tribunal applied rule 12(1)(da) and found that the incorrect number was a minor error and it would not be in the interests of justice to reject the claim. In making this finding, the tribunal again sought to apply the EAT guidance to limit satellite litigation.

The identity of the claimant’s employer

32. The [NAME] issue was the identity of the claimant’s employment. The tribunal discussed with the parties how to proceed. The tribunal explained that the case had been case

Case Number: 2302989/19V 2305706/19V

September 2017 managed on the assumption that no evidence would be led at this hearing and both parties wanted to proceed on this basis. Accordingly, the tribunal heard no evidence and proceeded on a submissions only basis.

33. The tribunal found that the documents were consistent with the claimant being an employee of the [NAME] respondent. This was stated in terms. The contract and extension could not be read in any other way. The assignment contract was expressed described as an [NAME]. There was no reference to or suggestion of a change in employer. Further, the [NAME] respondent continued to pay the claimant’s salary whilst he was in the UK.

34. Under ordinary contractual principles, the ability of courts to look behind the written terms of a signed contract is limited to situations where there is a mistake that requires rectification or where the parties have a common intention to mislead as to the true nature of their rights and obligations under the contract, i.e., the contract is a sham.

35. However, according to the Supreme Court in [COMPANY] v [NAME] 2011 ICR 1157, [NAME], employment contracts are an exception to this general principle. [ADDRESS] stated

‘the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part’.

36. The question in every case is, ‘what was the true agreement between the parties?’

37. In [[COMPANY] v [NAME] 0091/17, the EAT applied [COMPANY] v [NAME] to determine who was the true employer under the contract. This case also restated that it is the parties’ intention at the beginning of the contract which is relevant although their later actions may constitute evidence of the nature of the agreement.

38. In this case, the claimant had relocated to the UK and later presented with a written contract. He was then, the tribunal accepted, at a disadvantage in rejecting this contract. There was an imbalance of power. In the tribunal’s view this opened up the question of whether this contract represented the true intentions of the parties at the beginning of the arrangement.

39. However, the tribunal could not find enough evidence to indicate that this contract did not reflect the intentions of the parties. There was nothing in writing to suggest that the claimant had at the time stated that the [NAME] was inconsistent with any initial agreement. Further, after his moving to London he continued in contact with Denmark and the [NAME] respondent, and this would be much less likely if he was employed by the first respondent.

40. The claimant contended that the working situation in the UK was not consistent with Danish law. However, the tribunal explained to the parties that it could not reach a view

Case Number: 2302989/19V 2305706/19V

September 2017 on Danish law without expert evidence. However, even if the claimant were correct, this it does not necessarily follow that the claimant’s employment with the [COMPANY] ceased and he became an employee of the [COMPANY].

41. The claimant continuing to an employee of the [COMPANY] following his move to London was not merely a matter of form. In the view of the tribunal, the most important factor was that he was paid in Denmark in Danish currency. His pension and annual leave arrangements were expressly unchanged from his contract of employment with the [NAME] respondent. Further, his [NAME] arrangements in Denmark continued, as evidenced by the [NAME] respondent asking him for his [NAME] details.

42. The tribunal took into account the expectation in the [NAME] that the claimant would not return to Denmark which indicated that the parties intended a permanent move to the UK. However, whilst this was more consistent with his being an employee of the [COMPANY], it was not inconsistent with his remaining an employee of the [COMPANY].

43. The first respondent referred to the claimant as an employee when it discussed him with HMRC. However, the situation in respect of taxation was, to put it at its best, confused and inadequate. Neither respondent appeared to know what it was supposed to do.

44. The tribunal accepted the respondents’ contention that the emails in March 2019 were consistent with his being the employee of the [NAME] respondent.

45. The tribunal reminded itself that in determining the true nature of the agreement between the parties it should take a sensible and robust approach and should not allow form to undermine substance. The tribunal had concerns about how the claimant was treated. It was at first sight less than ideal that the exact contractual situation was only set out in writing some months after he had relocated to England. The respondents’ failed to keep the claimant properly informed of his tax position. However, regrettable as these matters may be, they do not overcome the weight of the evidence pointing to the [NAME] respondent as the claimant’s employer.

Employment Judge Nash _____________________________

Date: 31 March 2021

Case Number: 2302989/19V 2305706/19V

September 2017

Note Written reasons will not be provided unless a written request is presented by either party within 14 days of the sending of this written record of the decision.

Public access to employment tribunal decisions

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal- decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

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Case Number: 2302989/2019 & 2305706/2019

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: Croydon by cloud video platform On: 20 to 21 October 2025 Before: Employment Judge Nash

Appearances For the claimant: [redacted] For the respondents: [redacted]

REASONS

JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:

Procedural history

1. This case has a long and unfortunate procedural history. The claimant engaged in ACAS Early Conciliation against the first respondent from the 30 May to 14 July and presented his first ET1 under claim number 2302989/2019 on 29 July 2019 against the first respondent.

2. He presented his [NAME] claim under number 2305706/2019 on 29 December 2019 against the two respondents.

3. There was a third respondent, but this claim was rejected by the Tribunal.

4. The two claims were consolidated at a preliminary hearing on 25 June 2020.

5. There was a public preliminary hearing on 25 November 2020 to determine the claimant’s employer - whether it was the [NAME]. At this hearing the Tribunal determined, without hearing evidence, that the claimant was employed by the [NAME] respondent.

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6. The claimant appealed this decision successfully and by a judgment of 14 January 2025, [APPELLANT] v [RESPONDENT] UK Ltd [2025] EAT 12, the Employment Appeal Tribunal returned the case to the same Tribunal to determine the question of the claimant’s employer by way of hearing witness evidence. Accordingly, the findings of fact in the first Judgment of 25 November 2020 are null and void.

7. The matter came before this Tribunal again on 28 May 2025 and a case management order was made to prepare for this substantive preliminary hearing.

Preliminary and case management issues

8. At this hearing there were delays due to case management issues at the beginning and during the hearing.

9. It took some time for the correct bundle to be identified. It transpired that the parties had prepared separate bundles. The claimant put in what he described as a skeleton argument that the respondent contended was raising irrelevant issues.

10. The Tribunal reminded the parties on a number of occasions that the sole issue for the hearing was the identity of the claimant’s employer, and evidence would be limited to this issue.

11. The parties had not applied to extend the two-day listing. In the event, both found it difficult to stick to the issues that had been agreed and there were delays during the hearing resulting in a very late finish on the [NAME] day, but the tribunal was able to hand down an oral Judgment.

12. At the end of the first day the claimant indicated that he wished to make an application to rely on undisclosed documents, being an Employment Tribunal decision in which he, but not the respondents, was a party, and in which the respondents had given evidence.

13. He explained that he had not realised that he needed to do disclose this document. He had hoped to cross-examine [NAME] [RESPONDENT], one of the respondent’s witnesses on the subject. However, he had discovered, on the day of the hearing, that [NAME] [NAME] would not be appearing.

14. The tribunal ordered that any application for late disclosure and inclusion in the bundle should be made on the evening of the first day and sent in good time to the respondents. Any such application must be succinct - a few paragraphs long – and set out the relevance of the documents and the reasons for the late disclosure.

15. In the event, the claimant’s lengthy application did not go to the respondents until the early morning of the [NAME] day of the hearing. The respondents reasonably asked for further time to consider the document. This would have caused delay to an already tight timetable.

16. The claimant stated that the documents went to his contention that the [NAME] respondent had stated that one of the reasons it terminated the claimant was because he had failed to return to his workplace in Denmark.

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17. The tribunal considered the application and rejected it. It took into account the very tight timetable for the hearing. By the claimant’s admission in his application, these facts were referred to in two documents within the supplemental bundle.

Accordingly, it would not be compatible with the overriding objective to admit further documents - which would involve a risk of going part heard - when documents which went to the point that the claimant sought to make were already within the bundle.

The hearing

18. At this hearing the Tribunal had sight of a main bundle and a supplementary bundle. It also had a number of documents appended to a witness statement.

19. As to witnesses, the Tribunal heard from –

• the claimant who relied on his written witness statement • Ms [APPELLANT], at the material time, the respondent’s HR Manager who relied on her written witness statement • Ms [RESPONDENT], the first respondent’s Director of Transport UK and Ireland, who relied on her written witness statement • [NAME] [NAME] [NAME], a Tax Associate at [NAME], who gave evidence pursuant to a witness summons and who provided a written statement with a number of documents appended; • The respondent also relied on the evidence of [NAME] [RESPONDENT], its Director of Department of Oil and Gas, Energy Strategy and Planning at the material time. He provided a written witness statement but did not attend.

The issue for this hearing – Who was the claimant’s employer?

20. It was agreed that the claimant was employed by the [NAME] respondent until 1 October 2018.

21. The claimant’s position was that he was employed by the first respondent under a contract of employment from 1 October 2018 until his termination.

22. The respondents’ position was that the [NAME] respondent was the employer at all times and the claimant had worked partly in London from 1 October 2018 under a limited term assignment contract.

The facts

23. The following facts were relevant to the issue.

24. The claimant is a British citizen. Whilst living in Denmark he entered into an employment contract with the [NAME] respondent, a [COMPANY] on 16 November 2015. The written contract stated that he was a [NAME] Manager in [NAME] and his place of work was Copenhagen. The role was expected to involve trip or journeys abroad. In connection with his employment, he would, “have the chance to take part in assignments involving stationing overseas … for a longer period of time.” These assignments would be undertaken by further agreement between ‘you and [RESPONDENT]’.

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25. Subsequently, the claimant sought to relocate to London for personal reasons. [NAME] [NAME], his Line Manager at the time, said that a move was possible in principle, but the claimant would need to transfer to the first respondent’s payroll, and he would be placed into a department within the first respondent, probably led by [NAME] [RESPONDENT] (the first respondent’s Country and Markets Director).

26. However, for months there was no progress on the matter. In around late Spring or early Summer of 2018 the claimant sought to bring matters to a head and told [NAME] [APPELLANT] that he would have to leave the [NAME] respondent’s employment as he could no longer remain in Denmark.

27. Following meetings with first respondent employees and believing that there was the possibility of work opportunities in the United Kingdom, [NAME] [APPELLANT] told the claimant that it had been agreed with [NAME] [APPELLANT] that the claimant would join [NAME] [APPELLANT] department, initially under a short-term agreement with a view to a permanent role in January 2019. [NAME] [APPELLANT] told the claimant that he could close off his affairs in Denmark and move to the UK. The intention was a permanent move to the UK.

28. The claimant met with [NAME] [APPELLANT] in the UK on 15 September. He told the tribunal that he had been very persuasive when asking [NAME] [NAME] to employ him. Nevertheless, he had to work on a [NAME] respondent [NAME] in Serbia reporting to [NAME] [RESPONDENT] for some months.

29. According to the first and [NAME] particulars of claim, in late August 2018 when the claimant was employed by the [NAME] respondent, [NAME] [APPELLANT] had told the claimant that he had reached an agreement with the first respondent that the claimant would join them as their employee from 1 October 2018 reporting to [NAME] [APPELLANT]. The claimant would initially be employed on a temporary contract then move to a permanent employment by agreement after three months. There was no reference in the particulars of claim to any meeting on 15 September with [NAME] [APPELLANT] being any way determinative.

30. However, the claimant gave a different account in his witness evidence : [NAME] [NAME] told him that he would need to move to the first respondent’s payroll. There was no reference to his changing employer when he moved to London or to being employed by the first respondent.

31. [NAME] [RESPONDENT] account in his witness statement was that he knew that the claimant was very keen to move to London and had tried to find a short-term secondment which might provide a springboard on a voluntary basis, although there was no business need in London. [NAME] [NAME] stated that he had no doubt that moving to London was a short-term agreement and that the claimant remained an employee of the [NAME] respondent.

32. In September 2018, [NAME] [APPELLANT] and [NAME] [APPELLANT], discussed the claimant’s move by email. [NAME] [APPELLANT] referred to the move as a transfer. [NAME] [APPELLANT] was concerned that the claimant understood that [NAME] [APPELLANT] did not have a permanent position for him. There was no reference to the first respondent employing the claimant.

33. The claimant’s evidence was that he had told [NAME] [APPELLANT] that he would, in effect, not

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cost [NAME] [APPELLANT] anything. This was because the claimant was working on the [NAME] respondent’s [NAME] in Serbia which would bring in [NAME] to the first respondent.

34. The claimant agreed that [NAME] [APPELLANT] was his Line Manager on the [NAME] however he was far from ‘hands-on’ and was carrying an administrative role than acting as a technical Line Management function.

35. The claimant moved to London some time in around August/September 2018. His case was that, as expected, he worked a good deal on the [NAME] respondent’s [NAME] in Serbia while waiting for a UK opportunity. He was often in Serbia for about a working week. The Serbia work was not controlled by [NAME] [APPELLANT].

36. The claimant informed [NAME] [APPELLANT] when he would be available. For instance, he informed him of timetable changes freeing him up to attend the [NAME].

37. The claimant was not included within the first respondent’s payroll/HR systems. He was provided with a pass to its premises and used its hot-desking facilities. He continued to be paid as before by the [NAME] respondent in Danish Krone in Denmark. Tax and other deductions continued to be made in Denmark. The claimant did not receive payslips from the first respondent.

38. In [NAME] [APPELLANT] asked the claimant if he was willing to assist with a first respondent bid and the claimant agreed. He was also working with other first respondent employees including being asked to assist on a business case.

39. On 20 November 2018 the claimant signed an [NAME] (‘[NAME]’) with the [NAME] respondent. The claimant’s case was that having already relocated to London, he felt that he had no real choice but to sign the contract although it was not what had been promised.

40. The [NAME] described the first respondent as the [COMPANY] and the [NAME] respondent as the home company. The claimant was referred to as the [NAME]. The contract was signed by a director of the [NAME] respondent, [NAME] [APPELLANT] of the first respondent, the claimant and a Ms [APPELLANT] of ”[NAME]”. According to the [NAME] the claimant was to be employed as a [NAME] Manager and report to [NAME] [NAME] during the assignment period and he would be based in London. The assignment period would be from 1 October to 31 December 2018. His salary would continue to be paid in Danish Krone by the [NAME] respondent into his Danish bank account. There was no per. The contract stated: ‘it is expected that the [NAME] will not return to the home company’.

41. Clause 5 provided that the [NAME] “will continue coverage by social in the home country (Denmark). Clause 6 provided that pension contributions would continue in accordance with home company procedures. Clause 7 provided that the claimant was entitled to support with his tax return in the UK. The contract provided that estimated UK taxes would be withheld at payroll in the UK and would be settled after filing of a UK tax return. Annual leave would be in accordance with the [NAME] respondent’s standard terms.

42. The claimant stated that, although there was some work with the first respondent, [NAME] [RESPONDENT] stopped replying to his emails from November 2018.

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43. On 6 December 2018 the claimant emailed [NAME] [APPELLANT] saying that [NAME] [APPELLANT] wanted him to be more present in the [NAME].

‘It is a long way of saying that this year I won’t be able to be very present in the [NAME]. I understand that it is sub-optimal as you need to get an idea of what I can add to your team, and I will be very happy to spend a lot more time in the office in January and then you can make your decisions based on that. I am positive that I can add a lot of value in London but just not this year’.

44. That day [NAME] [APPELLANT] emailed the first respondent and said that the claimant was correct:

‘We have hardly seen him. I would suggest that he stays in his current position/group until 1 March 2019. That will give us time to ascertain what his skills and strengths are. Thoughts?’

45. The [NAME] expired on 31 December 2018. The claimant continued to work in the United Kingdom.

46. On 7 January 2019 the claimant emailed [NAME] [APPELLANT] saying that he wanted to up-date him on his schedule as he was due to be in London but was suffering significant family difficulties, including illness. He could come to the office a couple of days that week. The next week he would need to be in Serbia, and it looked as if, until March, he would need to go there every [NAME] week for five days.

47. [NAME] [NAME] emailed this to the [NAME] Director in Denmark. She replied that she had told people, including [NAME] [NAME] that:

‘I doubt very much that it will ever work with [APPELLANT] (the claimant) in [NAME]. My advice to them was to suggest him to work for himself and then he could work for us as well as [NAME] on an [NAME] (understood to be self-contracted) on an hourly basis. I think that would suit him and us better. I don’t know whether they have approached him with this idea yet.’

48. On 13 January 2019 the claimant’s Line Manager in the UK emailed Ms [APPELLANT] of the first respondent stating that the claimant had relocated to London from Denmark in October.

49. At some time in early 2019, although the Tribunal was not able to ascertain the date or the details, there were discussions between [NAME] [APPELLANT] and the claimant about extending the [NAME]. According to the claimant, [NAME] [APPELLANT] knew that the claimant did not want to sign an extension.

50. In early 2019 the claimant was invited to assist the first respondent’s Digital Rail Team under the leadership of Ms [RESPONDENT]. Her evidence was that she was putting together a business case to put to a [NAME] on a UK rail infrastructure [NAME]. Ms [APPELLANT] used the claimant to provide economic expertise to assist the first respondent in putting together its business case and he worked in the [NAME] on this.

51. According to Ms [NAME], he remained subject to his [NAME] in Copenhagen,

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and she knew that he remained employed by the [NAME] respondent and was in the UK on a temporary secondment agreement. However, the Tribunal could not attach significant weight to her evidence because she was giving this evidence a number of years after the fact. For instance, there were some factual errors in her witness evidence – including a date – and, although nothing turned on this, it indicated that her recollection was not precise.

52. [NAME] [APPELLANT] evidence was that she understood that the claimant was only a temporary resource in the [NAME]; he had no permanent role within the first respondent although the claimant had told her that he wanted a permanent UK role.

53. Ms [APPELLANT] stated that the claimant was managed through his [NAME]’ line managers in respect of matters such as leave, expenses and any projects of the [NAME] (the [NAME] respondent) such as the [NAME]. If he was away or otherwise unavailable, and the claimant at this time was having to deal with significant family illness, he did not apply to her.

54. She said that the work that he did was self-contained and therefore she did not interact with him a great deal. His costs, salary and all costs plus a mark-up would be charged back to the [NAME] respondent. She did not think that he continued to work on the rail [NAME] after the end of February but accepted on cross-examination that this, in fact, was the end of March.

55. The documents show that it was expected at the time that the claimant would likely be working four days per week on the rail [NAME] until the end of June.

56. The Tribunal saw emails between Ms [APPELLANT] and the claimant. On 16 January he told her that he had to speak to his manager, and he said that was the manager of the [NAME], that is [NAME] [APPELLANT].

57. The claimant, on 29 January 2019, emailed [NAME]. A family member was very seriously ill abroad. He said that he would be open to either taking unpaid leave or leaving the company so he could have the time to deal with this. He needed to save as much money as possible and “contractually be a Denmark employee”. He therefore could only extend his London agreement until the end of February and then he would have to return to Copenhagen. Any extension that was being agreed could only be for January and February.

58. Accordingly, the Tribunal found that at this time the claimant was at the very least actively considering returning to work in Denmark. There was no reference in this email to his having to change employer in order to return to Denmark.

59. On 7 February 2019 [NAME] [APPELLANT] emailed the claimant referring to a call discussing the extension of the [NAME]. He stated that the current extension “of your outplacement contract” would expire on 28 February. After that the claimant would either need to be back in the office in Denmark, or he would have to enter into a contract with the first respondent. [NAME] [RESPONDENT] stated that neither seemed realistic in the short-run and therefore the placement should be extended for a further month, as long as the claimant could continue to work on the rail [NAME]. No extension document was attached to this email.

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60. The claimant replied to [NAME] [APPELLANT] the next day that he had signed the [NAME] because it was a condition for an imminent [NAME] for the first respondent. He stated that he had full-time work on the rail [NAME] until April, and probably until September. However, he also had to go to Serbia on a five-day a week basis. His current contractual position was uncomfortable as he was on one-months’ notice. This resulted in his having to pay for residences in London and in Copenhagen, which was not financially sustainable. In future he would need to spend a lot of time in France supporting a seriously ill family member. He understood that he had undertaken obligations for the respondent, but that was when he had expected an imminent first respondent contract and before the family health issue.

61. He said:

All I was asking is that RUK [first respondent] issue is resolved one way or another, that the wording in the outplacement agreement changes and I get a per diem for the work I am doing for DR [the rail [NAME]] and restatement of my flexibility to my working arrangements. If these are unaffordable to [RESPONDENT] then I can extend the outplacement by another month as I do not want to cause any difficulties and then I am in Copenhagen in the [NAME] half of next week holding meetings with various transport teams so I can discuss with someone in person.

62. Ms [NAME] gave evidence that [NAME] [NAME] had asked her if there was a permanent role for the claimant in the UK and she told him there was not.

63. On 1 March 2019 [NAME] [APPELLANT] emailed the claimant to say that he was very disappointed that the claimant had not signed the extension to the [NAME] extending his stay in the UK. He said that the respondent was providing flexibility to accommodate the claimant, and he had been speaking to Ms [APPELLANT] that a transfer to the UK contract would not happen overnight. Therefore, they needed to have in place the agreement for March. If the claimant refused to sign the extension of the [NAME], then he would have to return to the office in Copenhagen on 4 March.

64. However, there was no evidence that any copy of the [NAME] extension had been sent to the claimant at this time. The tribunal accepted the claimant’s evidence that he did not receive the written [NAME] extension until 14 March when the [NAME] respondent emailed a signed copy to him. It was signed by the claimant’s managers and the [NAME], and it expressly referred to extension of ‘your short-term assignment contract’.

65. The [NAME] respondent asked the claimant for his [NAME].

66. The [NAME] respondent sent a follow-up email on 19 March asking the claimant if he had any questions and otherwise asking him to countersign the [NAME] extension.

67. The claimant’s evidence was that he did not carry out any work in the UK after the end of March and he was on annual leave, in effect, until May. After February he did not have any [NAME] contact with Denmark.

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68. On 1 May the claimant emailed [NAME] [APPELLANT] saying that there was nothing to discuss until the respondent provided him with a written position on the legality of the extension. He had spoken to [NAME] who had told him not to sign it under any circumstances. He repeated that he would not sign it and, if they insisted on it being signed, he had no future with the respondent.

69. [NAME] [APPELLANT] replied that he could not accept that the claimant did not show up in the office and that the claimant was contractually required to work in Copenhagen from 1 May. He had a contract in Copenhagen, and he was expected to be there. This was very important and not unexpected. He would give the claimant until 6 May, but no longer, to present himself in the Copenhagen office and they needed to discuss work matters.

70. On 3 May Ms [APPELLANT], Head of HR for the [NAME] respondent, emailed the claimant stating that he was employed on the Danish contract in Denmark. He was required to be in contact with his named manager and to attend work. His absence from work was a serious breach of contract and if he did not attend, the [NAME] respondent would be entitled to terminate without notice.

71. The first respondent had produced a P45 for the claimant with a leaving date of 31 March 2019. It was unclear who had prepared this. Ms [NAME] said that it had been done by [NAME], but [NAME] [NAME] of [NAME] was not aware that it had been done by [NAME].

72. The claimant returned to Denmark on 7 May, and he was signed off-sick for two weeks from 9 May.

73. The [NAME] respondent dismissed the claimant on 28 May, taking effect on 30 September 2019 on conduct grounds. It was said that there was a lack of co-operation and “multiple violations of Danish labor laws, [RESPONDENT]’s policies and guidelines”. The claimant was told that he was expected to work in the notice period and be in contact with his manager. He was expected to hand over the work on the [NAME] including missing signed timesheets. Should the [NAME] respondent not receive the missing timesheets, the loss of income would be deducted from his salary.

74. On 19 June Ms [RESPONDENT] of the [NAME] respondent sent an email stating:

There was no agreement between manager and [the claimant] that he could work out of the [NAME] after March. On the contrary he was requested to return to DK. Then he requested to take vacation in April which was accepted by his manager. Then he did not show up in DK 1st of May as expected. He only showed up in the office in DK on 6th of May after … I informed him not showing up is a breach of his contractual obligations.

75. The tribunal heard evidence as to the claimant’s tax arrangements from [NAME] [APPELLANT] of [NAME] who managed and advised tax matters for international transfers for the [NAME] respondent. He did not become involved with the claimant’s tax affairs until June 2019. His evidence reflected in large part an email he sent to the claimant on 26 February 2020. His evidence was that he was instructed that the claimant was employed by the [NAME] respondent and Danish employment taxes were being deducted from the claimant’s salary in Denmark. However, the claimant was working in the United Kingdom

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and gave rise to a liability for employment taxes in the United Kingdom. This would result in the claimant suffering double-taxation, which it would be possible to claim back.

76. The respondents wanted to avoid the claimant having to pay both UK taxes and Danish taxes out of his wages and having to claim back later. Therefore, it was decided that the “[RESPONDENT]” would pay the claimant’s payroll taxes to HMRC and then claim them back from Denmark. [NAME] [RESPONDENT] did not state whether the [NAME] paid the UK taxes.

77. They therefore set up what they referred to as a shadow payroll. This was a slightly misleading term because money was actually paid to HMRC. The [NAME] paid the taxes on the claimant’s wages in the UK to HMRC on a monthly basis then at the end of the tax year they reconciled the tax and were able to claim back from the [NAME] the taxes that had been paid - subject to any difference between the two tax codes or other extraneous matters.

78. The Tribunal accepted [NAME] [NAME] evidence as he appeared via witness summons and there was no reason to believe that he was not a disinterested third-party witness and he had worked in [NAME]’s [NAME] for fourteen years. However, there were limitations in the detail of his evidence, in particular who had paid the UK taxes, which the tribunal, on the balance of probabilities, attributed to the passage of time since [NAME] [NAME] had been involved with these matters.

The law

79. According to the Supreme Court in [COMPANY] v [NAME] 2011 [UKSC 41], in the employment context the courts must be alive to the possibility that written documentation may not accurately reflect the reality of the relationship between the parties. Employers may include terms aimed at avoiding a particular statutory result, even where such terms do not reflect the real relationship. Where one party to an employment contract seeks to challenge the genuineness of the terms there is no need to show an intention to mislead; it is enough that the written term does not represent the intentions or expectations of the parties. The question in every case is what was the true agreement between the parties?

80. The Supreme Court stated at para 35:

The essential question in each case is what were the terms of the agreement… The relative bargaining powers of the parties in an employment relationship must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case of which the written agreement is only a part. This may be described as a purposive approach to the problem.

81. The EAT applied [NAME] in [COMPANY] v [NAME] [NAME] [UKEAT/0091/17/BA] to determine who was the true employer under the contract. This case is also authority that it is the parties’ intention at the beginning of the contract which is relevant, although their later actions may constitute

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evidence of the nature of the agreement.

82. Both parties also referred to the Supreme Court decision in [COMPANY] v [NAME] & [NAME] 2021 [UKSC 5] where Lord [NAME] held that in determining whether [NAME] is an employee or other worker (the dispute on the facts of that case), the terms of any agreement should not be ignored, but there was no legal presumption that a contractual document contains the whole of the parties’ agreement and no absolute rule that terms set out in a contractual document represent the parties’ true agreement, just because [NAME] has signed it.

83. Auerbach J in Dr [NAME] -v- [COMPANY] and [NAME] [2023] EAT 2 stated that the discussion in [NAME] builds on the discussion in [NAME], with the critical insight that a claimant in the Employment Tribunal is asserting statutory rights conferred by [NAME], but [NAME] does not displace or materially modify the [NAME] approach itself. In a case where the true intentions of the parties are contentious, this requires that the contract be approached differently than a contract forged in a commercial or other conventional context, and the ET must look behind those terms or relevant circumstances applying the purposive approach in [NAME] and [NAME]. It is not an error for a Tribunal to begin its enquiry by considering the written terms of the contract. What it must not do is treat that as both the beginning and the end of its enquiry.

Submissions

84. The respondent provided written submissions. These were sent to the claimant in advance and he, in common with the Tribunal, was given half-an-hour to read them. The claimant then made oral submissions for a little over forty minutes. The respondent replied briefly, and the claimant had a brief final word. The tribunal also considered a skeleton argument provided by the claimant at the beginning of the hearing.

Applying the law to the facts

85. The claimant had relocated to the United Kingdom from Denmark in September 2018 and was later presented with a written contract. The respondent contended that the written contract reflected the true agreement between the parties, whereas the claimant contended that the true agreement was that he became an employee of the first respondent.

86. The Tribunal started by considering the contractual document. The [NAME] stated in terms that the claimant was an employee of the [NAME] respondent. The contract simply could not be read in any other way. It was expressly described as an [NAME]. There was no reference to or suggestion of a change in the employer from the [NAME] to the first respondent. All later extensions to this contract were entirely consistent with this.

87. Applying the purposive approach in [NAME] and in [NAME], the Tribunal accepted that the claimant was, at the date that he was presented with the [NAME], at a disadvantage. There was an imbalance of power. The claimant had moved to London and had no contractual documentation concerning this. The tribunal accepted that he was in a weaker bargaining position than the respondent. The written agreement, the [NAME], was the beginning but not the end of the Tribunal’s enquiry. The Tribunal went on to consider

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whether the evidence indicated that this contract did not reflect the intentions of or agreement between the parties, bearing in mind the unequal power balance between employer and employee.

88. There was nothing in writing to suggest that the claimant had, at the time, stated that the [NAME] was inconsistent with any prior agreement or that the parties later agreed on anything different.

89. According to the claimant’s witness statement, he told the [NAME] respondent in January that he wanted to relocate permanently to London. He was then told that he would need to move to the first respondent’s payroll and be placed in the department. Then there was no progress for a number of months. He then told the [NAME] respondent that he might have to leave the [NAME] respondent as he was going to London in any event. He was then told that it had been agreed that he would be joining [NAME] [RESPONDENT] department in the first respondent under a short-term agreement with a view to a permanent role in January 2019. He could close up in Denmark, and it was a 100% permanent move.

90. The claimant did not state in his witness statement that he had been told that he would be employed by the first respondent, as opposed to what was stated in his particulars of claim. In cross-examination the claimant accepted that ‘we never discussed technicalities, and we did not go into details’ and the “details were extremely vague”. Further, his evidence was that [NAME] [RESPONDENT] would welcome him to the first respondent team until the end of 2018 but that there was no guarantee of a full-time position.

91. The claimant’s case before the tribunal was that [NAME] made him a formal offer of employment with the first respondent in September 2018. However, he did not state this in his witness statement, stating instead only that [NAME] [NAME] welcomed him till the end of year and that there was no guarantee of a full-time position.

92. The Tribunal attached limited weight to [NAME]’s statement because [NAME] was not present before the Tribunal, did not give sworn oral evidence and was not subject to cross-examination. Nevertheless, the claimant’s evidence before the tribunal was not that there had been a promise, let alone an agreement that the claimant would be employed by the first respondent when he moved to London. The details of his contractual situation in London were unclear and not determined. His evidence was not that [NAME] [RESPONDENT] made him an offer of employment with the first respondent in September.

93. Accordingly, the tribunal found that there was no express offer of employment with the first respondent.

94. The Tribunal went on to consider the parties’ conduct after the claimant started work in London when on his case, his employment was transferred to the first respondent. This was what might be termed the claimant’s secondary case, that the evidence was more consistent with the intention that he became employed by the first respondent rather than remaining with the [NAME] respondent.

95. The claimant carried out work for the first respondent after he moved to London in October 2018. However, he continued to work on the [NAME] respondent’s [NAME] in

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Serbia for a significant amount of his time, at least four weeks between October and December. His Line Manager on this [NAME] was [NAME] [APPELLANT]. The Tribunal did not accept the claimant’s evidence that [NAME] [APPELLANT] involvement in the [NAME] was merely administrative. In the Spring of 2019, [NAME] [APPELLANT] was engaging in correspondence with the claimant concerning the [NAME]. The claimant referenced in early 2019 that he was still involved in the [NAME], and this would require his presence in Serbia for a week at a time. This was consistent with the [NAME] continuing to be of relevance to the claimant in 2019 and with [NAME] [APPELLANT] being actively involved.

96. [NAME] [NAME] comment in December that the [NAME] had seen him very little was consistent with the claimant not being wholly involved on UK work or first respondent work in 2018.

97. Further, the tone of the emails from the claimant to [NAME] [APPELLANT] was of him informing [NAME] [APPELLANT] when he would be available in London depending on his responsibilities in Serbia, rather than asking his employer how he should be dealing with work he was being given by another organisation, the [NAME] respondent.

98. The claimant was not on-boarded by HR for the first respondent.

99. All parties agreed that the claimant told the [NAME] respondent that he wished to relocate permanently to London. The [NAME] respondent’s case was that it had arranged a temporary secondment to London while he remained its employee, in the hope of achieving a permanent contract with the first respondent.

100. Based on the evidence, the Tribunal found that the intention of the [NAME] respondent was, knowing that he did not want to remain in Denmark, it placed him in the first respondent’s [NAME] to see if he could – by his own efforts - get a contract with the first respondent. However, as is shown by the emails, by December this had not come to pass.

101. Further, on 6 December 2018 the claimant had emailed [NAME] [APPELLANT] explaining that [NAME] [APPELLANT] of the [NAME] respondent wanted him to be more present in the [NAME]. There was no obviously good explanation as to why [NAME] [RESPONDENT] of the [NAME] respondent should be concerned about the whereabouts of the claimant if he was a first respondent employee.

102. The claimant told [NAME] [APPELLANT] that he would not be able to be present in the [NAME] very much in December 2018. He said that he would be happy to spend more time in the office the next year and that [NAME] [NAME] could make his decisions based on that. Whilst he was positive that he could add a lot of value to London, he could not do that in 2018. [NAME] [APPELLANT] email on 6 December suggested that he keep the claimant as he was until 1 March which would give the first respondent time to ascertain his skills and strengths. These communications were not consistent with the claimant being an employee of the first respondent, but rather he was a potential resource that the first respondent might or might not be able to use going forward.

103. By late January this position had not changed. The claimant told [NAME] [APPELLANT] that the family troubles were keeping him out of London and that he would be going to Serbia

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(for the [NAME] respondent) and expected to be there every other week.

104. The claimant was given significant first respondent work in the United Kingdom during the first few months of 2019 and after this he had limited engagement at most with the [NAME] respondent’s [NAME]. However, the way the first respondent used the claimant on its [NAME] was as consistent with its viewing him as a useful resource rather than as its employee.

105. After the rail [NAME] work came to an end at the end of March, on the claimant’s case, the first respondent did not provide him with further work.

106. The claimant signed the [NAME] on 20 November 2018 and whilst the Tribunal accepted that he was in a vulnerable position in respect of either of the respondents, nevertheless he did not object at the time to being described as an [NAME] to the first respondent from the [NAME] respondent.

107. Further, in December the claimant’s email was not consistent with his simply being an employee of the first respondent. He was saying that he was not adding value to the first respondent in 2018 or that he hoped to do so in 2019.

108. His emails were more consistent with his understanding and the understanding of both the [NAME] that he was a [NAME] respondent employee. He said on 29 January he needed to contractually be a Danish employee and could only extend the London agreement until the end of February and then he would return to Copenhagen. [NAME] [NAME] email of 20 February was consistent with this. There would be an extension until the end of February and either then, he would have to come back to Denmark or contract to the first respondent, i.e., become a contractor of the first respondent or their employee. If the claimant were an employee of the first respondent, there would be no need to return to Denmark or become a contractor of the first respondent.

109. The claimant’s complaint on 8 February to [NAME] [APPELLANT] was more as to the terms of the assignment to the UK rather than the fact that he was not employed by the first respondent or the identity of his employer. He said that he was asking whether the contract with the first respondent be resolved one way or another, not that it had already been resolved because he was already its employee.

110. Relations between the claimant and [NAME] [APPELLANT], in effect, broke down after this. The claimant did not sign the extension to his [NAME]. After the end of March, the claimant was on annual leave and did not work either in Denmark or in the United Kingdom.

111. It was a significant factor that it was the [NAME] respondent rather than the first respondent that terminated the claimant’s contract of employment and said that it would pay four months’ notice. There was no reason why the [NAME] respondent would pay the claimant four months’ notice if he was an employee of the first respondent.

112. Further, the claimant’s original contract of employment with the [NAME] respondent expressly allowed for overseas postings. Whilst this was far from determinative, it was consistent with the claimant remaining an employee of the [NAME] respondent when posted to the United Kingdom.

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113. The claimant throughout was paid in Danish currency from Denmark and the tribunal had sight of Danish payslips from the [NAME] respondent from October 2018. He did not receive UK payslips during his time in London. His pension and annual leave arrangements were expressly unchanged from his original contract of employment with the [NAME] respondent. His [NAME] arrangements in Denmark continued, as expressly stated in the [NAME], and as shown by the [NAME] respondent’s ensuring that they obtained his [NAME] details.

114. The tax arrangements were complex. The [NAME] respondent paid the claimant’s wages in Denmark and deducted Danish tax and other statutory deductions at source on these and handed these to the [NAME]. However, because the claimant was working in the UK, he was liable to pay employment taxes to the [NAME]. In order to avoid the claimant paying twice, the respondents, with the assistance of [NAME], set up a “shadow payroll” account to pay the UK tax accruing. The broad intention according to [NAME] [NAME] was to claim back the Danish tax (allowing for necessary adjustments) so that the claimant was only taxed once on his wages, in the UK.

115. The intention behind these arrangements was that the claimant’s wages were to be taxed once - within the United Kingdom and not Denmark.

116. The Tribunal did not find that the tax situation was a significant factor in identifying the employer. It was complex, confused and contentious. The tribunal was not satisfied that the claimant or either respondent was entirely clear as to their intentions as to the claimant’s tax situation or understood all the implications.

117. According to the evidence of [NAME] [APPELLANT], whilst the claimant was taxed at the time in Denmark, the final result was that taxes on his wages were paid to HMRC. However, as far as this could be ascertained, whilst this was consistent with the claimant earning wages in the United Kingdom, it did not determine who his employer was.

118. The Tribunal did not accept the claimant’s submission that either respondent was involved in a complex tax fraud whereby they sought to avoid paying taxes on wages earned in the United Kingdom after 2019 and that their purpose was to pretend that the claimant was employed by the [NAME] respondent when they knew or suspected he was employed by the first respondent.

119. The claimant did not explain why either respondent would risk a fraud on the [NAME] in order to mislead as to which of two companies within the same [NAME] group was his employer, nor was the Tribunal taken to good evidence of any such fraud.

120. The tribunal accepted the claimant’s case that the fact of who pays wages is not the determinative factor as to the identity of the employer. Nevertheless, the tribunal found that the fact that the [NAME] respondent paid his wages was a relevant factor for the following reasons.

121. If the claimant had, indeed, become the employee of the first respondent either when he moved in October 2018 or in January 2019, there was no explanation as to why the [NAME] respondent continued to pay him, especially in circumstances which appeared to give rise to somewhat complex tax issues. Whereas, if he remained the employee of

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the [NAME] respondent, this was explicable.

122. The Tribunal took into account the expectation recorded in the [NAME] that the claimant would not return to Denmark, which was consistent with the parties’ contention of a permanent move to the UK. However, whilst this was more consistent with being an employee of the first respondent, it was not inconsistent with his remaining an employee of the [NAME] respondent.

123. The claimant also relied on the decision of the Tribunal Committee of the [NAME] dated 7 September 2021. This stated:

We are aware that you [the claimant] were dissatisfied with not having been given a contract of employment in connection with your posting in England and that you and [NAME] disagree on the exact location of your place of work and the issues have been tried in a Court of Law. Therefore, we cannot make a decision regarding whether your [NAME] has met his or her duty of disclosure with regard to the forming of an employment relationship whilst you were employed in England.

124. The Tribunal was not able to place significant weight on this decision for the following reasons.

125. It did not know what evidence had been provided to the Danish Authority and on what basis it reached its decision. Further, the comments of the Board in respect of the [NAME] did not appear to relate to the substance of the claimant’s complaint, which was that there had been a failure by the [NAME] respondent to provide employment details.

126. The paragraphs on which the claimant relied related to a posting in England. The fact that the Board in this context referred to, ‘your [NAME]’ was not sufficient to show that a reasoned decision had been made to the identity of the employer between the [NAME]. The drafting indicated that the Board, in as much as it grappled with this point, considered there was a posting to England, rather than a change of employer to an English company.

127. The claimant also relied on the fact that the respondents had stated to another Employment Tribunal that the claimant was dismissed because he had stayed away from Denmark for a longer period and that he had breached his contract following his failure to return to his workplace in Copenhagen. He asked the tribunal to draw an adverse inference against the respondents because no action was taken against him for failing to return to Denmark before he was dismissed.

128. The Tribunal could not draw any such inference. The documents showed that the [NAME] respondent and [NAME] [APPELLANT] had made clear and robust attempts to have the claimant return to Copenhagen prior to May. The fact that the [NAME] respondent did not immediately terminate the claimant when he failed to comply, was not consistent with his not being their employee. It was more consistent with the [NAME] respondent deciding not to push the matter when it knew he was dealing with very significant family illnesses in France and when he was on annual leave. The [NAME] respondent gave it time and when the claimant still did not return, it decided that matters had gone on long

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enough and moved the terminate.

129. The Tribunal reminded itself in determining the true nature of the agreement between the parties, it should take a practical approach and should not allow form to undermine substance. The Tribunal had concerns about how the claimant was treated. It was less than ideal that the contractual situation was only set out in writing some months after he had relocated to England. The claimant, to some extent, was “left hanging” once he had left Denmark with neither the [NAME] nor the first respondent taking full responsibility for his situation.

130. The tribunal found that intention of the claimant and the [NAME] respondent was that the claimant came to London for a three-month period in the hope that he would obtain an employment contract with the first respondent and be able to continue living, as he wished, in London. The claimant was prepared to take the risk inherent in this situation, because he wanted to move to London in any event and he believed he could obtain employment with the first respondent once he was working in their offices.

131. The advantage to the [NAME] respondent was that, in effect, it removed the claimant who did not want to be in Denmark, from their management. If he failed to obtain the hoped for employment for the first respondent, it had the option of either terminating him or taking him back.

132. Unfortunately for the claimant, a permanent contract with the first respondent did not transpire. The first respondent used the claimant on the rail [NAME] in the early months of 2019, but once this came to an end there was no suggestion that there was further work.

133. Regrettable as some of the treatment of the claimant by the first and [NAME] respondent may have been, it did not overcome the weight of the evidence which points to the written contract reflecting the true agreement between the parties and the [NAME] respondent as being the claimant’s employer throughout the relevant period.

Approved by:

Employment Judge Nash

Date: 30 January 2026

Sent to Parties. 20 March 2026

All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal- decisions shortly after a copy has been sent to the [NAME]. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/

Case Number: 2302989/19V 2305706/19V

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: Croydon by cloud video platform On: 20 to 21 October 2025

Before:

Employment Judge Nash

JUDGMENT

1. The [NAME] respondent was the employer of the claimant from October 2019 until his dismissal in 2020.

Approved by: Employment Judge Nash Date: 22 October 2025

Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the [NAME]. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/

Case Number: 2302989/19V 2305706/19V

September 2017

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: Croydon by cloud video platform

On: 25 November 2020

PRELIMINARY HEARING

Before: Employment Judge Nash

Appearances For the claimant: [redacted]

In person For the respondents: [redacted]

JUDGMENT Employment Tribunals Rules of Procedure 2013 – Rule 21

1. The claims against the [NAME] respondent are not rejected on the basis of any failure to comply with the ACAS Early Conciliation procedures.

2. The [NAME] respondent was at all times the employer of the claimant.

3. The first respondent was at no times the employer of the claimant.

4. The following claims against the first respondent are dismissed upon withdrawal:

a. S1 Employment Rights Act 1996 b. S4 Employment Rights Act 1996 c. S8 Employment Rights Act 1996 d. S92 Employment Rights Act 1996 e. Disability discrimation save for associative discrimination f. Fixed term employees less favourable treatment g. Public interest disclosure dismissal h. All claims for unfair dismissal i. Breach of contract.

Case Number: 2302989/19V 2305706/19V

September 2017 j. S13 Employment Rights Act 1996

5. The following claims against the first respondent are still proceeding:

a. Associative disability discrimination b. Race discrimination c. Race harassment d. Public interest disclosure detriment.

Employment Judge Nash

Date: 25 November 2020

Public access to employment tribunal decisions