Castellotti v Dagul & Moliterno (t/a Cheeky Monkeys Nursery School)

The statutory safeguarding framework did not make it unlawful to employ a person in a nursery without an enhanced Criminal Records Bureau certificate during the relevant period. A provision defining regulated activities does not, without more, render an employment contract illegal.

An Employment Tribunal must determine the principal factual and legal issues raised by the parties. If it proposes to decide a case on illegality of its own initiative, it must identify the applicable law, give the parties a fair opportunity to address it, and provide adequate reasons. Where the error is recognised, the Tribunal may review its decision of its own motion.

The Claimant worked as a volunteer at a nursery and later claimed that she had been employed between 3 February and 15 April 2009. She sought unpaid wages and holiday pay. The Respondents maintained that she remained a volunteer.

The Employment Tribunal dismissed the claims without deciding whether an employment or worker relationship existed. It held instead that any employment was illegal because the Claimant lacked the relevant CRB document. The appeal concerned whether that conclusion was legally correct and whether the case should be remitted.

1. Appeal allowed and case remitted. The Employment Tribunal had wrongly treated the absence of a CRB certificate as making the alleged employment illegal. The matter was remitted for a completely fresh hearing before a different Employment Judge.
2. Part 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 merely defined regulated activities for the purposes of that Act. It contained no provision rendering an employment contract illegal.
3. The enhanced certificate scheme operated under Part V of the Police Act 1997, including section 113B. The employer had to certify that an application was for a prescribed purpose under section 113B(2)(b). The prescribed purposes included activities identified in Part 1 of Schedule 4 to the 2006 Act through regulation 5A(1) of the Police Act 1997 (Criminal Records) Regulations 1997.
4. During February to April 2009, no statutory or other provision required an employer or employee to obtain an enhanced certificate before entering into a contract of employment. Sections 8 and 10 of the Safeguarding Vulnerable Groups Act 2006, and the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010, were not in force at the relevant time.
5. The Employment Judge should have determined the central factual issue. Under rule 30(5)(b) of the Employment Tribunals Rules of Procedure, an issue should not be left undecided without explanation. If illegality was to be considered, the Judge should have stated the applicable law under rule 30(5)(d), and allowed evidence and submissions where necessary.
6. The Judge also had power to initiate a review of his own motion under rules 34(5) and 36(2) once the error became apparent. The failure to identify the legal basis and to give the parties an opportunity to address it constituted a procedural mishap.

• Employment Tribunal, Watford: On 16 December 2009, Employment Judge Mahoney dismissed claims for unlawful deduction from wages and unpaid holiday pay, relying on alleged illegality arising from the absence of a CRB certificate.
• Employment Appeal Tribunal: The appeal was allowed. The decision was set aside and the case remitted for a completely fresh hearing before a different Employment Judge.