Industrial Tribunals Northern Ireland Decisions

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Cite as: [2011] NIIT 510_11IT, [2011] NIIT 00510_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 510/11

CLAIMANT: Joseph Jordan

RESPONDENT: Bryson Charitable Group Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(i) The title of the respondent is ordered to be amended, by consent, to:-

Bryson Charitable Group Limited’;

as set out above.

(ii) The claimant was not continuously employed by the respondent for a period of not less than one year ending with the effective date of termination, pursuant to Article 140 of the Employment Rights (Northern Ireland) Order 1996; and the claimant was therefore disqualified from the right not to be unfairly dismissed and the claimant’s claim of unfair dismissal is therefore dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Ms M Jordan, the claimant’s daughter.

The respondent was represented by Mr G Grainger, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

Reasons

1.1 The claimant presented to the tribunal on 6 December 2010 a claim of unfair dismissal against the respondent. In Paragraph 5 of the claim form, which set out the claimant’s employment details, he stated that his employment started on 20 July 2009 and ended on 9 July 2010. By letter dated 16 December 2010, the claimant’s representative, on record for these proceedings, Ms C Jordan, Solicitor, of Hart & Company, Solicitors, was informed that the claim of unfair dismissal was not accepted as it appeared, from the claim form, that the claimant had not been continuously employed for a period of not less than one year. The claimant made an application for a review of that decision. By a decision recorded in the Register and issued to the parties on 22 February 2011, the decision, not to accept the claimant’s claim, was revoked upon review; and the claimant’s claim of unfair dismissal was accepted by the tribunal under the tribunal’s acceptance procedures set out in the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’).

In the decision on the review, the Chairman concluded that the claim of unfair dismissal should be accepted as it was not clear to him, applying the relevant test under the acceptance procedures, that the claimant did not have the necessary period of employment to allow him to bring the claim of unfair dismissal. In doing so, the Chairman emphasised that he was not expressing any view on the strengths or weaknesses of the contentions of the claimant that he had the necessary period of continuous employment and, if necessary, these matters might require to be determined by a tribunal at a further hearing.

1.2 The respondent presented a response to the claimant’s claim on 22 March 2011, in which it denied liability. By letter dated 28 April 2011, the respondent made an application for a pre-hearing review to determine whether the tribunal had jurisdiction to consider the claimant’s claim of unfair dismissal on the grounds the claimant did not have the required qualifying period of service, having regard to his employment status at the relevant material time.

1.3 On foot of the application, a pre-hearing review was directed to consider the following issue, as amended, at the commencement of this pre-hearing review, namely:-

“Whether the claimant is disqualified from the right not to be unfairly dismissed, having regard to the provisions of Article 140 of the Employment Rights (Northern Ireland) Order 1996, which requires an employee to be continuously employed for a period of not less than one year ending with the effective date of termination in order to bring such a claim, and having regard to the provisions of Article 3 of the Employment Rights (Northern Ireland) Order 1996 relating to the definition of employee contained therein.”

1.4 The title of the respondent was ordered, by consent, at the commencement of the pre-hearing review, to be amended to:-

Bryson Charitable Group Limited’;

as set out in the respondent’s response. It was not disputed the respondent was a charitable company limited by guarantee and any employment the claimant had was with the said respondent. The claimant’s solicitor on record, Ms C Jordan, of Hart & Company, Solicitors, was not available for the pre-hearing review as she was on maternity leave; but the claimant’s representative, Ms M Jordan, confirmed the claimant did not wish to make any application for a postponement and wished the pre-hearing review to be heard and determined by the tribunal.

2.1 It is necessary to set out the relevant legislative provisions, governing the issues, the subject-matter of the pre-hearing review, contained in the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).

Article 126 of the 1996 Order provides as follows:-

“126(1) An employee has the right not to be unfairly dismissed by his employer.

(2) Paragraph (1) has effect subject to the following provisions of this Part (in particular Article 140).”

Article 140 of the 1996 Order provides as follows:-

“(1) Article 126 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination.

… .”

Article 6 of the 1996 Order provides as follows:-

“(1) References in any provision of this Order to a period of continuous employment are (unless provision is expressly made to the contrary) to a period computed in accordance with this Chapter.

(2) In computing an employee’s period of continuous employment for the purposes of any provision of this Order, any question –

(a) whether the employee’s employment is of a kind counting towards a period of continuous employment, or

(b) whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment,

shall be determined week-by-week; but where it is necessary to compute the length of an employee’s period of employment it shall be computed in months and years of twelve months in accordance with Article 7.

(3) Subject to Articles 11 to 13, a week which does not count in computing the length of the period of continuous employment breaks continuity of employment.

(4) A person’s employment during any period shall, unless the contrary is shown, be presumed to have been continuous.”

Article 7 of the 1996 Order provides as follows:-

“(1) An employee’s period of continuous employment for the purpose of any provision of this Order –

(a) (subject to Paragraphs (2) and (3)) begins with the day in which the employee starts work, and

(b) ends with the day by reference to which the length of the employee’s period of continuous is to be ascertained for the purposes of the provision.

… .”

Article 129 of the 1996 Order provides as follows:-

“(1) Subject to the following provisions of this Article, in this Part ‘the effective date of termination’ –

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and

(2) Where –

(a) the contract of employment is terminated by the employer, and the notice required by Article 118 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined by Paragraph (1),

for the purposes of Article … 140(1) the later date is the effective date of termination.

(3) In Paragraph 2(c) ‘the material date’ means –

(a) the date when notice of termination was given by the employer, or

(b) where no notice was given, the date when the contract of employment was terminated by the employer.”

Article 118 of the 1996 Order provides as follows:-

“(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more –

(a) is not less than one week’s notice if his period of continuous employment is less than two years,

… .”

Article 3 of the 1996 Order provides as follows:-

“(1) In this Order ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Order ‘contract of employment’ means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Order ‘worker’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) –

(a) contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract, that of a client or customer of any professional business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly.

(4) In this Order ‘employer’, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Order ‘employment’ –

(a) In relation to an employee, means (except for the purposes of Article 206) employment under a contract of employment, and

(b) in relation to a worker, means employment under his contract;

and ‘employed’ shall be construed accordingly.”

Article 39 of the Interpretation Act (Northern Ireland) 1954 (‘the 1954 Act’) provides as follows:-

“ …

(2) Where in an enactment a period of time is expressed to begin on or to be reckoned from, a particular day, that day shall not be included in the period.

(3) Where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.

…

(6) Where in an enactment –

…

(b) a reference to a weekday shall be construed as a reference to a day which is not a Sunday;

(c) a reference to a month shall be construed as a reference to a calendar month;

(d) a reference, without qualification, to a year shall be construed as a reference to a period of twelve months;

… .”

3.1 It was not disputed by the parties that the effective date of termination, for the purposes of Article 129 of the 1996 Order, was 9 July 2010, when the claimant was hand-delivered, on 9 July 2010, a letter from Brian McGinn, the respondent’s Director of Finance & Corporate Services, informing the claimant he was summarily dismissed for gross misconduct, with effect from the date of the letter, following an earlier disciplinary hearing. (See further Gisda Cyf v Barratt [2010] UKSC 41.)

The respondent contended that the claimant was employed by it from 20 July 2009 until 9 July 2010; whereas the claimant contended, at this hearing, that he had been employed by the respondent from 1 July 2009, albeit in his claim form he had stated he had been employed by the respondent from 20 July 2009.

In this context, it has to be remembered that continuity of employment is an entirely statutory concept, subject to its own rules, which are not able to be added to or subtracted from by either the parties own opinion and/or intentions and/or arguments as to implied parliamentary intention (see further Morris v Walsh Western UK Ltd [1997] IRLR 562 and Collison v BBC [1998] IRLR 238). It is important to note that, in relation to the qualifying period of employment set out in Article 140 of the 1996 Order, it refers to the necessity, if a claimant is to make a claim for unfair dismissal, to be continuously employed for a period of not less than ‘one year’ [tribunal’s emphasis] ending with the effective date of termination; which, pursuant to Article 6 of the 1996 Order and Section 39 of the 1954 Act means a year of 12 months. The qualifying period is not expressed in weeks. It would have been possible for parliament to have done so; and indeed in previous legislative provisions the qualifying period was expressed in weeks. Therefore, if the respondent is correct, in relation to the claimant’s dates of employment, as set out above, and given the qualifying period would have begun on 21 July 2009 and ended on 9 July 2010, I was satisfied, subject to what is set out in the following sub-paragraphs, the claimant was not continuously employed for a period of not less than one year ending with the effective date of termination; and the claimant therefore had not satisfied the relevant qualifying period to enable him to bring a claim of unfair dismissal.

3.2 However, there were two further matters which required to be considered, in relation to the said qualifying period, in the context of the dates of employment contended for by the respondent:-

(a) Firstly, as set out above, the claimant was summarily dismissed without notice. Article 129(2) of the 1996 Order, provides for the effective date of termination of an employee dismissed without notice or with inadequate notice to be extended for the purpose of an unfair dismissal complaint by the statutory minimum notice to which the employee would be entitled. In this particular case, the claimant, if he had been entitled to be given notice, would have been entitled to one week’s notice. Even allowing for such a period to be added to the effective date of termination (9 July 2010), the claimant would still not be able to satisfy the said qualifying period referred to above. If I had been satisfied the claimant required the above extension to satisfy the qualifying period, I made it clear, during the course of the hearing, that I would not proceed to determine the issues, the subject-matter of the pre-hearing review but rather would allow time-issues to be determined at a substantive hearing. As set out in the case of Lanton Leisure Ltd v White & Another [1987] IRLR 119, applying provisions similar to those found in the 1996 Order, it was held that the employer’s designation of the reason for the summary dismissal as ‘gross misconduct’, was not of itself sufficient to preclude an employee from relying an Article 129(2) of the 1996 Order to extend the effective date of termination by his statutory notice entitlement. It was held in Lanton Leisure Ltd that it was necessary first to find out by means of an enquiry on the merits whether there was in fact such conduct as to enable the employer to terminate the contract of employment without notice. As the Employment Appeal Tribunal held, were that not so, an employer could avoid the provisions of [Article 129(2) of the 1996 Order] by defining the dismissal as gross misconduct. In the circumstances of the claimant’s case, given the relevant period of continuous employment at issue, as set out above, it was not necessary for me to consider further the reasons why the claimant had been so dismissed and if he was entitled to notice.

(b) Secondly, the respondent, in contending that the claimant’s period of unemployment commenced on 20 July 2009, relied, in particular, on the contract of employment made between the claimant and the respondent, as set out in the written statement of terms and conditions of employment signed by the claimant on 21 July 2009, which provided, inter alia, that the claimant’s employment with the respondent commenced on 20 July 2009. It also provided in relation to termination of any such employment that the respondent would “give (except in the case of summary dismissal) at least four weeks notice in writing to all members of staff when the contract is being terminated” [tribunal’s emphasis]. Again, any extension of the effective date of termination, pursuant to Article 129(2) of the 1996 Order, provides only for an extension, if applicable, by the statutory minimum notice period, which the claimant would be entitled to, and not by any contractual notice period to which the claimant might be entitled (see Fox Maintenance Ltd v Jackson [1977] IRLR 306 but also Harper v Virgin Net Ltd [2004] IRLR 390). Thus, the claimant was not entitled to rely on any contractual notice period to which he might have been entitled to under his contract of employment in order to establish he had the relevant qualifying period to bring his claim of unfair dismissal. If the contractual notice period had been relevant to the calculation of whether the claimant satisfied the qualifying period in order to bring his claim of unfair dismissal, I again would not have determined the issues, the subject-matter of the pre-hearing review, but allowed time-issues to be determined at a substantive hearing.

3.3 In light of the foregoing, the main focus of the dispute between the parties was whether the claimant was in fact employed by the respondent from 20 July 2009, as contended for by the respondent, or whether the claimant was employed by the respondent from 1 July 2009, as contended by the claimant at this hearing. The respondent’s representative did not dispute, properly in my view, that, if the claimant was found by the tribunal to have been employed by the respondent from 1 July 2009, then he would satisfy the necessary qualifying period to enable him to bring his claim of unfair dismissal.

4.1 As set out previously, the claimant in his claim form to the tribunal, stated in Paragraph 5.2 that the dates of his employment with the respondent were from 20 July 2009 to 9 July 2010; whereas during the course of this pre-hearing review, the claimant contended that his employment commenced with the respondent on 1 July 2009. The claim form, which set out in some detail his claim of unfair dismissal, was signed by the claimant on 28 November 2010, after it had been prepared by the claimant’s solicitor, who is also his daughter. The claimant had no recollection, in evidence at this hearing, whether he had read the claim form before he signed the form and it was sent to the tribunal by his solicitor; but he accepted it was prepared on his instructions. He further accepted that nowhere in the claim form did it suggest he had been employed by the respondent prior to 20 July 2009. He suggested, during the course of his evidence, that at the time of presenting his claim form on 6 December 2010, he was unwell and receiving medication for chronic depression and that in some way this may have accounted for his failure to notice the dates of employment, as set out in the claim form were incorrect and, in particular, he had not noticed that the start date of his employment was incorrect and should have stated 1 July 2009. No medical evidence was produced to the tribunal by the claimant in relation to his said illness or any effect it might have had on him in giving relevant instructions to his solicitor to enable her to fill in the claim form to the tribunal.

4.2 As set out in the decision on review, the tribunal initially decided not to accept the claimant’s claim for unfair dismissal, in accordance with the acceptance procedures, as it appeared from the claim form the claimant had not been continuously employed for a period of not less than one year. By letter dated 31 December 2010, the claimant made an application for a review of that decision not to accept the claimant’s claim for unfair dismissal in the interests of justice. It is of interest to note that, in that letter, which was sent by the claimant’s solicitor, no express reference was made to the claimant commencing his employment on 1 July 2009 or indeed any date prior to 20 July 2009; albeit it was apparent from the tribunal’s decision the issue of the qualifying period was central to the tribunal’s decision not to accept the claimant’s claim. Indeed, in making the application for review, she did not expressly address the reason for the non-acceptance of the claim form by the tribunal. It was not until her letter dated 8 February 2011, that the claimant’s solicitor wrote to the tribunal, in relation to the said review, which was due to be heard on 9 February 2011, that she stated it had now come to her attention, as representative of the claimant, that the claimant had been employed by the respondent for more than 12 months, prior to his dismissal. Prior to that date, there had been no suggestion by the claimant or his representative that the claimant had been employed before 20 July 2009. This was only raised by the claimant’s representative, after the tribunal had rejected the claimant’s claim form, as it did not appear to show the necessary qualifying for a claim of unfair dismissal.

In this context, it is also necessary to note that the claimant had signed a written statement of terms and conditions of employment on 21 July 2009, which expressly stated that his employment commenced on 20 July 2009. At that time, there was no suggestion that the claimant was taking medication and/or suffering from chronic depression. In particular, the claimant, when signing the said statement, did not suggest that the date of commencement had been incorrectly stated. No such suggestion was made until the hearing of this matter.

4.3 Following the decision on the review, the respondent presented a response to the claimant’s claim form, in which it confirmed that the dates of employment, as set out in the claimant’s claim form, were correct. In Paragraph 5.2.4 of the response form the respondent stated, inter alia, that the respondent did not accept that the claimant was employed by the respondent prior to commencement of his employment on 20 July 2009, and, in particular, stated that, prior to his employment with the respondent, the claimant provided services to the respondent on a consultancy basis. In this context, it referred, in its defence, inter alia, to various invoices provided to the respondent in respect of those consultancy services. At all times material to these proceedings, the respondent has denied liability for payment due on foot of those invoices and, for the purpose of this hearing, whilst it is necessary to refer to these invoices elsewhere in this decision, it is not necessary for this tribunal, at this pre-hearing review, to determine whether the sums, or any, set out in the said invoices are due and owing by the respondent. However, in my judgment, it is not without some significance to note, that certain of the invoices include claims for consultancy fees by the claimant, either on his own account and/or as director of NRG Management Services Ltd, a company set up by the claimant to supply consultancy services to organisations within the energy saving field, which included the respondent, for periods which included the period from 1 July 2009 to 17 July 2009, which was a period when he contended, at this hearing, he was in fact employed by the respondent. Further, in particular, in his letter dated 3 February 2011, to the respondent, at a time when the claimant knew his claim of unfair dismissal had not been accepted by the tribunal as the claim form did not appear to satisfy the qualifying period for such a claim, but before his solicitor’s letter of 8 February 2011, the claimant wrote to the respondent enclosing invoices in respect of work undertaken by himself ‘in the role of consultant’ which included the period from 1 July 2009 to 17 July 2009, the period which, at this hearing, he contended he was in fact employed by the respondent. Indeed, in subsequent correspondence in or about April 2011 from the solicitors for the claimant to the respondent’s solicitors, they sought payment for the claimant on foot of the said invoices. The correspondence was marked ‘without prejudice’ by the claimant’s solicitors but it was agreed by the parties the correspondence could be admitted in evidence during the course of these proceedings. There was surprisingly, in my view, no reference by the claimant’s solicitor in the said correspondence to the fact that, for the above period of claim as a consultant, from 1 July 2009 to 17 July 2009, the claimant was contending he was employed by the respondent.

5.1 The tribunal, having heard oral evidence by the claimant and also Nigel Brady, the relevant Director of the respondent, made the following further findings of fact, as set out in the following sub-paragraphs, insofar as relevant and material to the determination of the issues, the subject-matter of the pre-hearing review.

5.2 The claimant was previously the manager of Eaga PLC (‘Eaga’), which company ran various energy efficiency saving schemes, including the Warm Homes Scheme. After leaving Eaga, the claimant in or about early 2008 set up two companies, namely Crest Initiative Limited (‘Crest’) and NRG Management Services Limited (‘NRG’). The claimant was the Managing Director of both companies. The intention was for Crest to bid to obtain the contract to run the Warm Homes Scheme, on behalf of the Northern Ireland Housing Executive, and which Scheme was due in late 2008/early 2009 to be the subject of a tender process by the Northern Ireland Housing Executive for appointment of a company to run the Scheme. The Warm Homes Scheme was set up by the Department for Social Development to alleviate fuel poverty in Northern Ireland by providing grants for energy efficiency measures in certain properties, such as cavity wall/loft insulation. NRG was set up to supply consultancy services to organisations/companies within the energy efficiency field.

5.3 In or about February 2008, the claimant, on behalf of NRG, got in contact with Nigel Brady, the Director of NI Energy Agency, a company within the respondent group of companies, which was involved in the energy efficiency field and offered to NI Energy Agency consultancy services. NI Energy Agency subsequently changed its name to Bryson Energy; and, for the purpose of this decision, I shall continue to refer this decision to the respondent as ‘Bryson’. In early 2008, there were discussions between the claimant and Mr Brady, that there would be a joint bid for the contract the subject of the forthcoming tender, for the Warm Homes Scheme. However, by late 2008/late 2009, Bryson decided to make the bid on its own; and the consultancy services of NRG were engaged by Bryson to assist in the preparation of the pre-qualification questionnaire, which was required to be completed in relation to the tendering process conducted by the Northern Ireland Housing Executive. I was satisfied that Bryson, which had little or no experience of such a sizeable scheme, required the consultancy services of NRG and, in particular, the claimant with his previous extensive experience in this field. Bryson, along with others, were subsequently invited to tender for the contract, which required to be submitted by 28 May 2009.

5.4 In the pre-qualification questionnaire, which was largely prepared by the claimant, in order to strengthen Bryson’s case that it had the necessary expertise to run the Scheme and should be invited to tender, the claimant wrote, with the consent of Mr Brady, that the claimant ‘will be joining’ Bryson as Project Manager. I am satisfied the purpose of stating this was in order to enable Bryson to be invited to tender and did not involve, in particular, any binding contractual commitment by Bryson to employ the claimant, if the bid was successful.

5.5 The claimant did not dispute that he and/or NRG provided consultancy services to Bryson in relation to the considerable work that was required to be carried out in the preparation and subsequent submission of the tender by Bryson to the Northern Ireland Housing Executive. It appears from correspondence between the claimant and Mr Brady in or about March 2009, this consultancy work was done by the claimant and/or NRG on foot of an agreement between the parties that the work was ‘at risk to the parties’, but on an understanding that the benefit to the claimant of such a no fee agreement was that the claimant would have the opportunity for potential employment, if the bid was successful. I am further satisfied that, during this period, whilst the claimant was carrying out the consultancy work in connection with the preparation of the tender bid, that both the claimant and Mr Brady agreed the broad heads of agreement, including particular salary and other fringe benefits such as private health insurance and car allowance, if he became so employed following a successful tender.

5.6 The claimant at all times was fully aware, having prepared the pre-qualification questionnaire of Bryson’s recruitment policies, that he could not be offered employment with Bryson as Manager, following any successful tender, without the necessity of the respondent to advertise the post and to hold interviews. However, I have no doubt, given the claimant’s undoubted expertise in this field, but also the knowledge that he had gained from the consultancy work in connection with the tender bid, that it was understood and recognised, by both the claimant and Mr Brady, that, if the tender was successful, the claimant would be very hard to beat at any interview. However, although there was such an understanding and recognition between them, I am also satisfied that there was never any agreement by Mr Brady and/or Bryson that, if the tender was successful, the claimant would be immediately employed as Manager from the commencement date of the contract, without the necessity for any recruitment process to be conducted by Bryson, as required under Bryson’s recruitment policies. And, as set out elsewhere, in this decision the claimant was required to go through such a recruitment process.

5.7 Following the successful tender by Bryson, the post of Senior Manager was advertised on 26 June 2009, with a closing date of 3 July 2009. Given the commencement date of the contract was on or about 1 July 2009, there was clearly an urgency by Bryson to get the Manager in post as soon as possible. The claimant, along with others, applied for the post; but not surprisingly, given his expertise and knowledge, he was successful at the subsequent interview. At the time when the claimant applied for the said post, on foot of the said advertisement, he did not suggest that he was already employed by Bryson on 1 July 2009 as Manager, following the successful tender by Bryson; but rather applied and after a successful interview commenced work, with Bryson, as Manager on 20 July 2009, as stated in the contract of employment which he signed, without objection. In particular, in his application for the post, the claimant stated at the relevant time he was Managing Director of NRG, with overall responsibility for the consultancy and he ‘was still in post’.

The claimant was not paid by Bryson as an employee under the PAYE Scheme, from 1 July 2009 until 17 July 2009; albeit he was so paid by Bryson after 20 July 2009. As set out previously, the claimant in his invoices had claimed for consultancy fees from 1 July 2009 to 17 July 2009; albeit he stated, in evidence to the tribunal, this was a period when he was employed by the respondent and had been from 1 July 2009. In my judgment, the claimant’s assertion is totally inconsistent with his assertion to the tribunal, that he was employed by Bryson from the commencement date of the contract on 1 July 2009. Rather, the above is consistent with his continuing to provide consultancy services to Bryson until he commenced his employment on 20 July 2009, as set out in the contract of employment signed by him.

5.8 The claimant at no time, prior to 20 July 2009, was based at Bryson but rather he operated from the offices of NRG in Magherafelt, regularly meeting relevant persons/bodies/companies as part of his consultancy services to Bryson in relation to the tender, at those offices and elsewhere. He undoubtedly, on occasion, before 20 July 2009, had to carry out work at the offices of Bryson as a Consultant. When this arose he, in essence, ‘hot-desked’ and made use of a temporary computer when there. He did not, prior to 20 July 2009, have a permanent office and/or permanent computer allocated to him at Bryson. Indeed, prior to that date, at all times he used his personal e-mail address, that of NRG or Crest, in relation to all relevant correspondence with Bryson and/or in connection with his consultancy service to Bryson in relation to the scheme. The claimant was not given a Bryson e-mail address until after 20 July 2009.

5.9 The claimant, in providing consultancy services to Bryson, was obliged to give exclusive services in relation to the Warm Homes Scheme tender; but was allowed and did provide consultancy services to other companies/organisations throughout the period relevant to these proceedings, in relation to matters other than the Warm Homes Scheme. I was further satisfied that, although the claimant, in carrying out his work in relation to the tender reported to Mr Brady, he was in light of his expertise given a free hand to do it, including conducting negotiations with persons/companies relevant to the tender.

5.10 As stated previously, the claimant accepted he was a Consultant and not an employee of the respondent prior to 1 July 2009. The period in dispute was the period from 1 July 2009 to 20 July 2009. Following the successful tender, the claimant, along with others including Mr Brady, and other relevant parties connected with the successful tender attended an operational issues meeting with the Northern Ireland Housing Executive on 2 July 2009. This was after the commencement date of the contract and was to get the operational aspects of the contract up and running, following the awarding of the contract on foot of the successful tender. I am satisfied the claimant attended this meeting in his capacity as a Consultant for the respondent and not as an employee. In particular, I am satisfied that the Chairman of the meeting asked all those attending to state their names and whom they were representing and the claimant so identified himself. I do not accept he was asked or that he stated he was Bryson’s Senior Manager. At that time the claimant had applied for the position, on foot of the advertisement, but he had not yet been interviewed nor had he been offered the position of Manager of the Warm Homes Scheme. The claimant was not interviewed until 15 July 2009 and was offered the post later that afternoon. Again, this is consistent with his start date of 20 July 2009, as set out in the contract of employment. I find no significance in the fact that the claimant was in the office at Bryson on the afternoon of 15 July 2009, following the interview, when he was informed he had been successful. Clearly, as indicated previously, the claimant clearly had to attend at the office of Bryson in order to take part in the successful interview earlier that day. I am further satisfied the claimant attended the induction meeting for all new employees at Bryson on 20 July 2009 and signed the relevant documentation to show his attendance at that meeting. I do not accept the absence of the claimant’s name on relevant signing in books for employees, prior to that date, was because he was not aware he was required to sign in such a book. Again, this is consistent with the claimant commencing employment with Bryson on 20 July 2009 and in the period between 1 July 2009 and 20 July 2009 he was a Consultant and not an employee and only required to sign such attendance documentation after he was employed as Senior Manager by Bryson.

The claimant was required to give exclusive consultancy services to Bryson in relation to the tender for the Warm Homes Scheme; but he provided consultancy services himself and/or through NRG to others prior to 1 July 2009 and up to 20 July 2009. Again this is not consistent with his assertion that he was employed by Bryson from 1 July 2009.

6.1 To be an employee, pursuant to Article 3 of the 1996 Order, required the claimant to be an individual who works under a contract of employment, which means a contract of service. This has to be distinguished from a contract for services. It was not disputed that the claimant was a subject of a contract for services, whilst providing consultancy services to Bryson up until 1 July 2009 and was an employee of Bryson under a contract of employment from 20 July 2009. The disputed period related from 1 July 2009 to 20 July 2009 and whether or not he was an employee during that period or remained as a Consultant under the said contract for services.

The question of who is an employee is difficult and has been the subject of considerable litigation. There have been various tests referred in case law to assist a tribunal in determining whether a person is an employee at the material time. It is now considered that one test or feature is not conclusive; and that in each case it is necessary to weigh all the factors in the particular case and, having done so, to determine whether a person is an employee, as defined. In the case of Ready-Mixed Concrete (SE) Ltd v Ministry of Pensions [1968] 2 QB 497, McKenna J suggested a sort called mixed/multiple test, referring to three questions to be answered, namely:-

“(i) Did the worker undertake to provide his own work and skill in return for remuneration?

(ii) Was there sufficient degree of control to enable the work and fairly to be called an employee?

(iii) Were there any other factors inconsistent with the existence of a contract of employment?”

6.2 In determining whether the claimant was an employee from 1 July 2009, in light of the above guidance, I have relied on the following particular findings of fact made by me. The claimant signed a contract of employment with Bryson, giving a start date of 20 July 2009, setting out his rates for remuneration as a Manager for Bryson. Prior to 20 July 2009 the claimant was not paid by Bryson as an employee under the PAYE system. The claimant has raised invoices for consultancy fees from Bryson, which are disputed by Bryson and who say no fees are due, for not only the periods before 1 July 2009 but also for the period from 1 July 2009 until 17 July 2009. The claimant undoubtedly had considerable expertise in the field of energy efficiency and, in particular, in relation to the Warm Homes Scheme. Bryson relied on that expertise and, although he reported to Mr Brady, the claimant was, in essence, left to carry out the necessary work to enable Bryson to successfully tender for the contract and was left to get on with the necessary work unsupervised, including obtaining the services of relevant personnel to operate the contract when obtained and to conduct all relevant negotiations with such persons/companies. He mainly operated from offices of NRG in Magherafelt. I was not satisfied, in the circumstances, there was any evidence of any change in the claimant’s method of working prior to 1 July 2009, when it was agreed he was a Consultant and not an employee, and during the intervening period until 20 July 2009, when it was agreed he was an employee. The claimant applied for the post of an employee with Bryson, following the advertisement, in which he stated expressly that he was still in post as the Managing Director of NRG. Further, the interview for the said post was not until 15 July 2009 and he was not offered the post until that date. If the claimant was employed from 1 July 2009, I would have expected the claimant to have objected to going through the recruitment process and to have stated, at least in the application form, he was already an employee of Bryson. Given the work that the claimant was allowed to do, on behalf of Bryson, I do not consider that there was the sufficient degree of control to enable the claimant to be fairly called an employee prior to 20 July 2009.

I further rely on the particular inconsistencies which I have found, as set out in Paragraph 5 of this decision. These matters, in my judgment, point to the claimant being a Consultant providing consultancy services under a contract of service and not an employee under a contract of employment in the relevant period. Those inconsistencies were, in my judgment, never satisfactorily explained by the claimant.

6.3 I have concluded, in particular, that to contend, at this hearing, that he was employed from 1 July 2009 was totally contrary to what the claimant had said when he made his claim to the tribunal. It was not only totally contrary to what was stated in the claim form, it was also contrary to the contract of employment on the commencement date of 20 July 2009 stated therein and to which there was no objection by the claimant when he signed it. It was also contrary to the claim for consultancy fees for the period for the period from 1 July 2009 to 20 July 2009. To change his position in such a way, in my judgment, points to the claimant being an employee from 20 July 2009 and not 1 July 2009 and again was never satisfactorily explained by the claimant. The claimant was not suffering from depression when he signed his contract of employment, with the commencement date of 20 July 2009. No medical evidence, which I consider would have been necessary, in the circumstances, was produced by the claimant in relation to his depression and its effect upon him when giving instructions to his solicitor for the preparation of the claim form. I do not consider, in light of all the other evidence, that the claimant would have made a such a mistake, even if he was ill, and he told his solicitor, he commenced his employment with Bryson on 20 July 2009. He did so as he always knew he commenced such employment on 20 July 2009.

6.4 In the circumstances, I have to conclude that the claimant was at all times fully aware he only became an employee on 20 July 2009 and did not dispute it; and he has only sought to suggest an earlier start date when he realised that he was not qualified to bring a claim of unfair dismissal as he did not have the sufficient period of continuous employment with Bryson. If such a qualifying bar was not required for such a claim, I do not believe the claimant would ever have sought to suggest he was employed at an earlier date than that set out in his claim form and his contract of employment, namely 20 July 2009. If he had genuinely believed he was an employee from 1 July 2009, he would have said so and certainly before the review hearing. This he failed to do.

7.1 In light of the foregoing, I was satisfied the claimant’s employment commenced with Bryson on 20 July 2009. Therefore the claimant was not continuously employed by Bryson for a period of not less than one year, pursuant to Article 140 of the 1996 Order. The claimant is therefore disqualified from the right to be unfairly dismissed and the claimant’s claim of unfair dismissal must be dismissed.

Chairman:

Date and place of hearing: 15 -16 June 2011; and

20 June 2011, Belfast

Date decision recorded in register and issued to parties: