Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 3007/04

CLAIMANT: Liam Morgan

RESPONDENT: Independent News & Media Ltd

DECISION

The decision of the tribunal is that the claimant was not an employee for the purposes of Article 3(1) of the Employment Rights (Northern Ireland) Order 1996 and that consequently the tribunal does not have jurisdiction to hear his claim for unfair dismissal.

Appearances:

The claimant appeared in person.

The respondent was represented by Mr Peter Martin, Solicitor, of Arthur Cox Northern Ireland, Solicitors.

The issue

1. The preliminary issue to be determined by the tribunal is whether the claimant is an employee for the purposes of Article 3(1) of the Employment Rights (Northern Ireland) Order 1996, which defines an employee as an individual who has entered into or works under (or worked under) a contract of employment.
2. Article 3(2) of the 1996 Order defines a contract of employment as having a contract of service or apprenticeship, whether expressed or implied, and if expressed, whether oral or in writing.
3. The tribunal found the following facts:-

(a) The claimant signed an agreement dated 26 November 2001 with Belfast Telegraph Newspapers; he signed an identical agreement some time in 2003 with the respondent, who by that time had taken over the ownership of the Belfast Telegraph.

(b) On foot of those agreements, the claimant undertook to deliver Belfast Telegraph newspapers on a daily basis to the various newspaper outlets within a designated area of Belfast. He had not previously had any working relationship with the Belfast Telegraph.

(c) The agreements made it clear that the claimant was responsible for providing his own vehicle and for all tax, insurance, maintenance and repair costs and expenses. He also was responsible for ensuring that such vehicle was maintained in compliance with the road traffic legislation, and that in the event that he was unable to deliver the newspapers, he would arrange for this to be done at his own expense.

(d) Crucially, the agreements also contained a clause (Clause 6) which stated that:-

"I acknowledge that I shall not at any time be your servant, agent or employee in such distribution, but at all times shall be and remain an independent contractor …".

(e) The claimant queried that this meant that he was not an employee. He sought to show that he was under the control and direction of the respondent in that they, for example, directed the times of loading newspapers; they set the route, and they had to approve his nominated alternative driver if the claimant was unable to make the deliveries himself.

(f) The claimant also sought to argue that such an agreement should not be allowed to stand because he saw it as a means of businesses circumventing the need to pay pensions and other benefits which would arise under a contract of employment.

4. The tribunal found as a fact that, whilst the claimant advanced such arguments at tribunal, in his Inland Revenue tax return forms, he described himself as being self-employed.

Conclusions

5. The agreements signed by the claimant in 2001 and 2003 were clear and unambiguous in their wording.
6. Any direction or control by the respondent, for example, in setting times for loading and approving alternative delivery drivers, was only to ensure that its business needs would be adequately met.
7. Any such supervision on their part could not, in the view of the tribunal, be construed as varying the clear wording of Clause 6 of the agreements to create a relationship of employer and employee.
8. The tribunal also concluded that the agreement was freely made on two occasions and that the claimant could not have been under any illusion as to its meaning. This is confirmed, in the opinion of the tribunal, by his assertion to the Inland Revenue that he was self-employed.
9. The claimant's argument as to the propriety of such agreements is not a matter for this tribunal to resolve.
10. The tribunal therefore concluded that the claimant was not and had not been an employee of the respondent within the meaning of Article 3(1) of the Employment Rights (Northern Ireland) Order 1996.
11. Consequently, the tribunal does not have jurisdiction to hear the claimant's claim of unfair dismissal.

Chairman:

Date and place of hearing: 30 June 2005, Belfast

Date decision recorded in register and issued to parties: