Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 95/04

CLAIMANT: Liam Doherty

RESPONDENT: Christopher McKee t/a Professional Window Systems

DECISION

The unanimous decision of the tribunal is that the claimant was not an employee of the respondent and the tribunal therefore has no jurisdiction to hear the claimant's claim of unfair dismissal.

Constitution of Tribunal:

Chairman: Ms J Turkington

Panel Members: Mr B Johnston

Mr J McKeown

Appearances:

The claimant did not attend but was represented by Ms L Askin, Barrister-at-Law instructed by James O'Brien & Co, Solicitors.

The respondent was represented by Mr P O'Kane, Barrister-at-Law instructed by John J McNally & Co, Solicitors.

POSTPONEMENT APPLICATION

1. The claimant's counsel Ms Askin sought a postponement of the hearing on the grounds of the claimant's absence. Ms Askin had not received any contact from the claimant and could not therefore provide an explanation for his absence. The application was opposed by the respondent's counsel Mr O'Kane who noted that the case had been postponed on one previous occasion. Mr O'Kane also stressed that the respondent was present at the tribunal and would be prejudiced by having to take further time away from his business if this hearing was postponed.
2. The tribunal considered the postponement application and the submissions made by counsel for both parties. The tribunal refused the postponement application on the following grounds:-

(i) the case had already been adjourned on one previous occasion;

(ii) the tribunal was satisfied that the claimant had been properly notified of the hearing both by the Tribunal Office directly and by his solicitors and there was no explanation for the claimant's absence; and

(iii) the claimant did have an opportunity to put forward his case through his representative who was present.

EVIDENCE

3. The tribunal heard evidence only from the respondent Mr Christopher McKee. The respondent was cross-examined by the claimant's counsel. However, in view of the claimant's absence, the respondent's evidence to the tribunal was largely unchallenged.

ISSUES

4. The tribunal had to determine whether the claimant was employed by the respondent and therefore whether the tribunal had jurisdiction to determine the claimant's claim of unfair dismissal. In his originating application, the claimant asserted that he was employed by the respondent whilst the respondent in his notice of appearance denied that the claimant was an employee and contended that the claimant was a self-employed contractor. There was therefore a clear dispute between the parties on this issue.

FACTS OF THE CASE

Having heard the evidence of the respondent and the submissions of both parties, the tribunal found the following facts:-

5. The respondent is the owner of a small PVC window company which trades under the name Professional Window Systems and operates from premises at 155A Creagh Road, Castledawson.
6. The respondent has 3 full-time window fitters working for him together with 1 secretary.
7. The respondent first met the claimant in September 2001 when the claimant was working for another sub-contractor at the respondent's home. At that time, the claimant was working as a joiner.
8. The claimant enquired if the respondent had any work for window fitters. The respondent indicated that he needed extra men from time to time. The claimant did not want to become an employee of the respondent, but rather to remain self-employed.
9. The respondent first engaged the claimant on a couple of jobs during a busy period in the run up to Christmas 2001.
10. Some weeks, the claimant worked a full week for the respondent, but other weeks, he worked only a few days.
11. The claimant was free to and did in fact carry out work for others.
12. The claimant was paid on a piece work basis, that is, he was paid a certain sum to fit a number of windows or a conservatory. However, for the period from October and November 2003, the claimant received payment of £164 each week save for the week ended 31^st October when he received no payment.
13. The claimant was a skilled joiner and the respondent did not supervise the claimant's work.
14. The claimant held a CIS4(P) card issued by the Inland Revenue entitling him to be paid as a self-employed contractor.
15. After the claimant lost his driving licence, he was asked by the respondent to become an employee. The claimant refused, saying that he wanted to continue to be treated as self-employed.
16. The claimant never received holiday pay.
17. The claimant never received sick pay.
18. The claimant was not covered by the respondent's insurance.
19. The claimant used his own tools except for certain large items of equipment. This was common in the joinery trade.
20. When he was paid, the claimant received a tax payment voucher. The respondent's employees received a standard pay slip.
21. The claimant regularly travelled to work in the respondent's van with employees of the respondent, particularly after the claimant lost his driving licence.
22. On days when he was working for the respondent, the claimant called at the respondent's office to obtain a worksheet giving details of the customer and the job.
23. The respondent had a uniform consisting of a T-shirt and sweatshirt with the name of the respondent's business printed on it. This uniform was available to the claimant, but it was not clear on the evidence whether it was worn by him.
24. The claimant never sent a substitute window fitter to stand in for him. The respondent would have accepted a substitute with similar skills to those of the claimant.
25. A letter dated 25^th September 2003 was prepared on the respondent's letter head which indicated that the claimant was employed by the respondent's firm. This letter was not signed by the respondent and the tribunal accepted the respondent's

evidence that this letter was prepared by the respondent's secretary and without his knowledge or consent.

STATEMENT OF LAW

26. The tribunal had to determine whether the claimant was employed by the respondent under a contract of service or, alternatively, engaged by the respondent under a contract for services. The relevant legal principles and the tests for a contract of service are set out in Section A of Harvey paras 1 to 85.
27. In his submissions, the respondent's counsel relied, in particular, upon the case of Massey v Crown Life Insurance Co 1978 IRLR 31 and referred the tribunal to the following passage in the judgment of Lawton LJ:-

"If the law allows a man to claim that he is a self-employed person in order to obtain tax advantages for himself and then allows him to deny that he is a self-employed person so that he can claim compensation, then, in my judgment, the union between fairness, common sense and the law is strained almost to breaking point."

28. The claimant's counsel referred the tribunal to the various tests for service outlined in Harvey and, in particular, relied upon the case of Young & Woods Ltd v West 1980 IRLR 201. Counsel submitted that this case was clear authority for the proposition that the label attached to the relationship by the parties was not decisive.
29. Harvey makes it clear that there is no single test for a contract of service. Rather, over time, the courts and tribunals have put forward various tests, including those known as the "control test", the "organisational test", the "economic reality" test and the "multiple test". Harvey states that "the modern approach is to deny that any one test or feature is conclusive………… in every case it is necessary to weigh all the factors in the particular case and ask whether it is appropriate to call the worker a servant".
30. This modern approach (known as the "multiple test") requires the tribunal to answer the following questions:-

1. Did the worker undertake to provide his own work and skill in return for remuneration?

2. Was there a sufficient degree of control to enable the worker fairly to be called a servant?

3. Were there any other factors inconsistent with the existence of a contract of service?

31. Harvey also makes it clear that the label the parties attach to their relationship is a relevant but not a decisive consideration. However, in a borderline case then the label attached by the parties may be conclusive – Massey v Crown Life Insurance Co 1978 IRLR 31.

CONCLUSIONS

32. The tribunal approached the matter on the basis of the modern approach referred to in Harvey, that is the "multiple test", taking account of all the relevant factors.
33. In this case, it was clear that the parties had attached the label of self-employment to their relationship (paras 8,14,15,20). Indeed, the claimant had explicitly refused an invitation from the respondent to become an employee (para 15). The tribunal considered the fact that the claimant's work for the respondent was irregular (see para 10 above) and the fact that he was free to and did in fact work for others (see para 11 above) both pointed towards the claimant being engaged under a contract for services (that is self-employment). In addition, the fact that the claimant never received holiday pay (para 16) or sick pay (para 17), that he was not covered by the respondent's insurance (para 18) and that he was paid by a different method than the respondent's employees (para 20) were also more consistent with self-employment.
34. The tribunal attached little or no weight to the fact that the claimant was paid a piece work rate (para 12) as this could be the case for either an employee or a self-employed sub-contractor. Similarly, the fact that the claimant used his own tools (para 19) as the respondent conceded this was common in the joinery trade. Whilst the respondent's uniform was available to the claimant, it was not clear whether or not the claimant actually wore it (para 23) so the tribunal disregarded this factor. The tribunal also attached little weight to the fact that the claimant regularly travelled to jobs in the respondent's van (para 21) as this appeared to be simply a matter of convenience. Similarly, the fact that the claimant obtained a worksheet from the respondent's office (para 22) as this simply provided essential details regarding the customer and the job. It was the case that the respondent exercised limited control or supervision over the claimant's work in this case (para 13). However, the tribunal considered this did not conclusively rule out a contract of service (employment) in this case as the claimant was a skilled craftsman. The tribunal accepted the respondent's evidence regarding the provenance of the letter dated 25^th September 2003 (para 25) and therefore attached little or no weight to its content.
35. On the other hand, the tribunal considered that the consistent payment to the claimant of the sum of £164 per week throughout October and November 2003 had the appearance of a wage and was therefore suggestive of a contract of service (employment). Further, it was clear that the claimant had always provided personal service (para 24).
36. Having weighed up all the relevant factors as outlined at paras 31 to 35 above, the tribunal concluded that those factors which pointed towards self-employment outweighed those which pointed towards a contract of service (employment). Accordingly, the tribunal concluded that the claimant was not an employee of the respondent.

COSTS

37. The tribunal having announced its decision, the respondent's counsel Mr O'Kane made an application that the claimant should pay the respondent's costs of the hearing. Mr O'Kane submitted that the respondent had been forced to incur significant legal costs in his defence of this claim. He further submitted that the claimant had shown disregard for the tribunal by reason of his failure to attend the hearing and failure to provide any explanation. Mr O'Kane furnished to the tribunal a copy of a letter to the claimant's solicitors dated 20^th June 2005 in which it was contended that this was "an entirely groundless and vexatious claim". This letter also invites the claimant to withdraw the claim otherwise "we shall be seeking our full costs under the ……….Rules of Procedure".
38. The claimant's counsel Ms Askin opposed this application for costs. Ms Askin pointed out that the letter to the claimant's solicitors regarding costs was not sent until after the previous adjourned hearing. She argued that the matter was governed by Rule 14(1) of the 2004 Rules so that the tribunal must be satisfied that the claimant has acted abusively, vexatiously or otherwise unreasonably or that the claim was misconceived. Ms Askin further submitted that, in considering the application for costs, the tribunal could only take account of the issue which had been determined by it, namely whether or not the claimant was an employee of the respondent. This was not a simple question, but rather a question of law, governed by complex case law. In concluding, the claimant's counsel submitted that the claim had been properly brought.
39. Having considered the submissions made on behalf of both parties, the tribunal decided to refuse the respondent's application for costs. By Rule 14(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004, the tribunal may make an order for costs if "it is of the opinion that a party in bringing the proceedings, or a party or his representative in conducting the proceedings has acted vexatiously, abusively, disruptively or otherwise unreasonably or a party's actions in bringing the proceedings have been misconceived". The tribunal was not satisfied that the claimant was misconceived in bringing this claim or that he or his representative had in bringing or conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably.

Chairman:

Date and place of hearing: 1 November 2005, Belfast.

Date decision recorded in register and issued to parties: