Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 408/15

 

 

 

CLAIMANT: Anthony Williams

 

 

RESPONDENTS: De La Salle College

 

 

DECISION

(1) The claimant was not an employee of the respondent as regards his duties as manager of the Sports Hall and the tribunal does not have jurisdiction to hear his claim.

 

(2) Even if the claimant were an employee, the claimant was not contractually entitled to a salary of £10,000.00 as Sports Hall Manager and his claim of breach of contract is dismissed.

 

 

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge McCaffrey

 

Appearances:

The claimant was represented by Mr Michael O'Brien, Barrister-at-Law instructed by McIvor Farrell Solicitors.

The respondent was represented by Ms Finnegan, Barrister-at-Law instructed by The Education Authority Solicitors.

ISSUES

1. This claim as originally lodged by the claimant alleged (amongst other things) constructive dismissal and discrimination on grounds of sexual orientation. The claim remaining before me was a claim for breach of contract in relation to the duties carried out by the claimant as manager of the Sports Hall at De La Salle school, the respondent.

 

2. It was not disputed that the claimant was employed by the Education Authority (and its predecessor the Belfast Education and Library Board referred to as "BELB") at the respondent's premises as an ICT Manager and that he had also some responsibilities in relation to financial management duties for which he was paid overtime. He also had a casual contract with BELB as a building supervisor in relation to his duties as an attendant at the Sports Hall.

 

3. The issues before me in this claim related to the claimant's duties as Sports Hall Manager for the respondent and raised the following questions.

 

(1) Was the claimant employed by the respondent in relation to his role as a Sports Hall Manager, or was he self-employed?

 

(2) If the claimant was not an employee, does the industrial tribunal have jurisdiction to hear his claim for breach of contract?

 

(3) On what basis was the claimant paid the sum of £4,800.00 for the period from September 2013 until September 2014 for his role as Sports Hall Manager?

 

(4) Had the claimant's employment status changed with effect from September/October 2013 so that he was then entitled to payment of £10,000.00 per annum with effect from September 2013?

 

(5) If so, had the respondent breached its contract with the claimant in paying him only £4,800.00 in respect of his role as Sports Hall Manager from September 2013- June 2014 in October 2014? If so, to what sum is the claimant entitled as damages for breach of contract?

 

FACTS

 

4. I heard oral evidence from the claimant, from the previous Acting Principal of the respondent, Ms Fiona Kane, from Mr John Gough, previously Chairman of the Board of Governors of the respondent school and from Ms Claire White, the present Principal of the respondent school. On the basis of their evidence and of the documents opened to me, I make the following findings of fact.

 

5. The claim made out by the claimant at the hearing was different from the breach of contract claim set out in the claim form. I pointed out to his representative that the claim form lodged on behalf of the claimant (in respect of which he had had the benefit of legal advice from his solicitors) did not clearly set out the claim which was being made at the industrial tribunal. This has a bearing on my findings in relation to the claimant's credibility which are set out below.

 

6. The claimant was employed to work as an IT Technician and subsequently ICT manager at the respondent's premises from 1997. In that capacity he was employed by BELB and subsequently by the Education Authority which has taken over the role of the Education and Library Boards for Northern Ireland. In or about 2008 the respondent opened a Sports Hall Complex for which there was a separate budget from the main budget for the respondent's school. The claimant started to work there as a Sports Hall attendant on the basis of a casual contract and he was paid for that work at an hourly rate. In that capacity he was also employed by BELB at that time. In or about 2009 the claimant was approached by the then Principal of the respondent school, Mr Barry, to act as Manager for the Sports Hall and commenced in this role in September 2009. It was arranged that he would be paid an honorarium in respect of this work which was usually paid in arrears in September/October for the previous school year. The claimant said that it was his understanding that this was a tax free sum and that it was made as a payment to a non-teaching member of staff where there was no formal responsibility points system, as there was for teachers. He gave no detail as to how he had formed this impression. He confirmed that he had been paid for this work from the Sports Hall account, unlike his payments in relation to his Sports Hall attendant's work. The actual amount of the honorarium apparently varied slightly from year to year, but had been £4,800.00 or thereabouts for the last couple of years it was paid. The claimant did not give any explanation of the variation.

 

7. At the end of December 2012, Ms Fiona Kane (who was then Deputy Principal of the school) was asked to act up for Mr Barry, the Principal, who had gone off sick. It appeared that Mr Barry's sudden illness was related to a pending audit of the respondent's finances which was due to start in January 2013. Ms Kane had been told by Mr Gough (who was then Chair of the Board of Governors) that there were concerns about the school's finances. The audit took place in January 2013 and the auditor spent a week in the school as opposed to 2-3 days, as they would normally do. Within eight weeks a draft audit report had been produced and the Principal and Board of Governors were asked to take urgent steps to secure the assets of the school so that they could retain their budget for the year. Ms Kane's evidence was that the draft report made 27 recommendations, many of which were marked as priority 1, an indication of their urgency. One of the issues raised by the audit was that a number of staff were paid honoraria, which was considered inappropriate. There were four or five individuals affected, one of whom was the Sports Hall Manager, namely the claimant. As a result of the concerns raised by the audit, a Finance Committee was set up as was a Sports Hall Committee, consisting of staff from the school and the Governors. Ms Kane said that in light of the seriousness of the issues raised by the audit report, the Finance Committee met weekly or fortnightly to address the issues which were outstanding.

 

8. In relation to the Sports Hall Manager's post, Ms Kane was asked to prepare a job description for that post as a first step to doing away with the honorarium and making the job a contracted post. A job description was prepared by Ms Kane and Mr Gough, (Chair of the Sports Hall Committee at the time) with support from staff from BELB. Ms Keenan noted that there was no standard job description for this role and that they had required assistance from BELB to prepare a proper job description. She indicated that job descriptions for the "honoraria" posts were provided to those who were in post to make sure that nothing had been left out and as part of this process she discussed with the claimant the content of the job description for the Sports Hall Manager, which included a note of the salary as "£10,000.00".

 

 

9. The main issue in this case was that the claimant alleged that he had been assured by Ms Kane that from September 2013, his Sports Hall attendant's role and his Sports Hall Manager's role would be "rolled-up" into one post for which the salary would be £10,000.00 per annum. It was his evidence that he was to be paid this amount from September 2013, on the basis that he would continue in post until the job was advertised. The claimant did not seem to accept that being shown the job description to confirm the duties were correct, and being told that the post would be advertised in an internal trawl did not equate to being offered the job. When cross examined on this point, the claimant conceded that Ms Kane might have mentioned that the salary of £10,000.00 was not yet agreed, but said she had said it would be around that figure. However his evidence on when the discussion with Ms Kane took place was unclear. Initially he said that he had had the conversation with her in September or October 2013, then he suggested that the conversation had taken place later. The only thing he could say with any certainty was that it had taken place before she had left the school to go to a new post early in 2014.

 

10. Ms Kane on the other hand was very clear that she had not made any such promise to the claimant and could not do so, especially in the context of an audit which had raised a lot of financial concerns. Her evidence was that the Board of Governors was hopeful that the post would be advertised during the school year and that at that point the salary would be £10,000.00, on the basis of the previous honoraria plus the money paid to the claimant as a Sports Hall attendant being "rounded-up" to £10,000.00. She was clear however that the £10,000.00 salary would attach to the post, not to any individual. She was clear also that she did not have the authority to make any such offer to the claimant. While she noted that, as he had four years' experience as the Manager of the Sports Complex, the claimant would be well placed to apply for the post, she was adamant that the job had not been advertised in her time at the school and that at the last meeting of the Finance Committee she attended in January 2014, the job descriptions were presented and it was agreed that the Committee was ready to move forward to job evaluation and internal trawl. Ms Kane's evidence was supported by that of Mr Gough, who was clear that in order to meet the requirements of the auditors, the job description for the Sports Hall Manager's post had to be submitted for evaluation and the appropriate pay code had to be assigned to it. Until those steps were taken, Mr Gough was clear that the post could not be advertised and that no one could be appointed. I accept the evidence given by Ms Kane and Mr Gough on this issue: they have given clear reasons as to why the claimant could not be simply "slotted in" to the Sports Hall Manager's post as set out above. I accept that a post within a school, which is subject to normal public sector audit requirements, could not be filled without a proper evaluation and recruitment process. I do not find the claimant's evidence on this point convincing: he was unclear as to when the alleged conversation took place, he had not sought any written confirmation of the alleged job offer and he conceded in cross-examination that he knew the job would have to be advertised internally and that he would have to apply for it. It was unclear to me as to how the claimant had formed the view that he was to be paid £10,000.00 for the manager's post, when he had clearly been told there would have to be a recruitment exercise.

 

11. The claimant also gave evidence that, following Ms Kane's departure he had had a further conversation with Mr Gough and the then acting Principal Mr O'Hare, confirming that the post of Sports Hall Manager would be internally advertised on the understanding that the salary would be backdated (and the claimant would be paid at the Manager's salary) from September 2013. Mr Gough was clear that this had not been agreed and it couldn't have been agreed in advance of the job evaluation process having taken place and pay code being allocated to the post. Again, I accept Mr Gough's evidence on this issue and the reasons he gave.

 

12. Ms Kane confirmed that in or about September 2013 she had made arrangements (with Education and Library Board approval) to pay the claimant the honorarium for the previous academic year, which had been the usual procedure. She was clear that this had to be approved as a "one-off" payment, pending the regularisation of the post. When the position of the Sports Hall Manager had still not been advertised and recruited by September 2014, the new Principal Mrs White (who had taken up post in June 2014) sought approval from the Education Authority to make a further honorarium to the claimant (for the 2013/2014 school year), which again was approved as a final payment. At that stage Mrs White made it clear to the claimant that the honoraria would be discontinued and that he should make sure that he claimed for all the hours he worked as Sports Hall Attendant or Manager on an hourly basis so that he could be paid appropriately. Other Sports Hall staff completed timesheets which were then forwarded to the school's Bursar for approval and payment by BELB (later the Education Authority). It was the claimant's evidence that he did not claim for all the hours he worked in 2013 and 2014, but only for additional hours over and above his usual hours of 12 hours per week, on the basis that his first 12 hours of work were included in his "rolled-up" salary of £10,000.00 per annum. How any external auditor was meant to confirm that the claimant had actually completed his basic 12 hours unless the claimant filled in timesheets for all hours worked was not clear. However from documentation produced to me, it was clear that the claimant had been paid at least from September 2014 until his employment with the respondent ended in January 2015 for the hours worked on the basis of rotas and the hours the claimant "signed in" as working. The school's Bursar Miss Fallon had provided Mrs White with an email showing the hours paid to the claimant. She noted that, "He (the claimant) may argue that we owe him for his managerial responsibilities but I am unsure how this would be calculated if we paid him for the hours worked".

 

13. Towards the end of the hearing, the respondents produced payslips for the claimant for the period from January 2014 until February 2015 when the claimant was given his last pay. This included the claimant's salary for his role as ICT Manager and a payment for what are described as "basic hours" at £8.46 per hour in respect of his Sports Hall attendant's duties. The hours paid vary from month to month. It is not clear to me that the information given by Mrs Fallon tallies with the information given on the payslips relating to the claimant. I am also aware that payments for the claimant's work as Manager at the Sports Hall Complex had previously been paid to him out of the Sports Hall Complex account, and I am not therefore clear as to whether these hours would show up on a payslip issued by the Education Authority. The evidence given by the claimant did nothing to clarify this issue and it was made clear to his representative that there was no claim before me for unlawful deductions from wages (which the claimant then seemed to be raising) and that such a claim even if now made, it would be out of time.

 

14. On 4 November 2014 the claimant was asked to attend a meeting with the auditors in relation to the Sports Hall accounts, because of his role in managing the Sports Hall Complex and in particular dealing with financial matters. It is relevant to note that the claimant had produced a profit and loss account for the Sports Complex for the year ending on 31 March 2014. In those accounts, he noted that the Manager's honorarium for the year was £4,800.00. The claimant was asked to meet with Aaron Curragh and Colette McKernan, who were auditors from the Education Authority. The claimant described this meeting as an "interrogation". He went off sick the day after this meeting and on his return from sick leave, was placed on precautionary suspension. He then resigned his post in early January 2015. Shortly after this the claimant took up a new post in Milan with effect from 7 January 2015. It is fair to assume therefore that he had already applied for this post some time before.

 

15. In her evidence Mrs White said that she had not been aware of the outcome of the audit report until after her appointment in June 2014. She met the claimant on a number of occasions in July 2014 to clarify issues in relation to the management of the Sports Hall and at the end of the first meeting on 3 July, she had a discussion with the claimant about his payment. The claimant told her that he had registered as self-employed in respect of the next payment due to him of £4,800.00 regarding the honorarium. She had also noted in her notes of that meeting, "higher wage?". She said that the claimant had made the suggestion to her that he may be entitled to a higher wage and because she had no knowledge of this she put a question mark after it. The next day (4 July) Mrs White met the claimant for a further discussion in relation to the claimant's hours and at that meeting the claimant mentioned the job description for the Manager's post. The claimant said that the salary for the Manager's post was £10,000.00 and £6,000.00 for the Assistant Manager's post. This was the first Mrs White said that she had heard about the job descriptions and the first time that she had heard that the claimant might have a job description. On 9 July Mrs White had a meeting with the claimant and Mr Gough. At that meeting, the question of the claimant's self-employed status and the appropriate certificate for his tax affairs was discussed.

 

16. Mrs White then had discussions with the audit team of the Belfast Education and Library Board, who pointed to the claimant's lack of a properly evaluated role and lack of job description. They were also concerned about payment of the claimant by way of an honorarium and advised that the claimant would have to produce a UTR number (as a self-employed person) before he was paid anything. By special agreement in October 2014 Mrs White secured the agreement of the Belfast Education and Library Board to pay the claimant by way of an honorarium of £4,800.00 in October 2014 for the previous year and the claimant confirmed that he had received that amount.

 

17. Following the claimant's resignation letter of 4 December 2014, Mrs White wrote to him asking him to reconsider his position and offering him the opportunity to progress the matters as a grievance. The claimant did not respond to this. He was offered a grievance meeting with Mr Gough towards the end of December 2014 but said that this was not suitable.

 

THE RELEVANT LAW

 

18. The jurisdiction of the Industrial Tribunals in relation to claims for breach of contract is to be found in the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 and in particular Article 3 of that Order which provides as follows:-

 

"3. Proceedings may be brought before Industrial Tribunals in respect of a claim by an employee for the recovery of damages or any other sum (other than a claim for damages, or a sum due, in respect of personal injuries) if -

 

(a)       the claim is one to which Article 57(2) of the No. 2 Order applies and in respect of which a Court in Northern Ireland would under the law for the time being in force have jurisdiction to hear and determine an action;

 

(b)       the claim is not one to which Article 5 applies; and

 

(c)        the claim arises or is outstanding on the termination of the employee's contract.

 

The Article 5 exceptions relate to terms relating to living accommodation, restraint of trade, obligation of confidence and intellectual property.

 

19. Article 57(2) of the Industrial Relations (No. 2) Order 1976 is in the same terms as Article 5(2) of the Industrial Tribunals (Northern Ireland) Order 1996 which provides as follows:-

 

"5(1) The Department may by Order provide that proceedings in respect of -

 

(a)       Any claim to which this article applies, or

 

(b)       Any claim to which this article applies and which is of a description specified in the Order,

 

may, subject to such exceptions (if any) as may be so specified, be brought before an Industrial Tribunal.

 

(2) Subject to paragraph (3), this Article applies to -

 

(a)        A claim for damages, for breach of a contract of employment or other contract connected with employment, the claim for a sum due under such a contract, and

 

(b)        A claim for the recovery of a sum in pursuance of any statutory provision relating to the terms or performance of such a contract,

 

if the claim is such that a court in Northern Ireland would under the law of the time being in force have jurisdiction to hear and determine an action in respect of the claim.

 

20. The definitions section of the 1996 Order defines " employee" as " an individual who has entered into or worked under (or where the contract has ceased, worked under) a contract of employment."

 

21. The case law in relation to the definition of an employee is well-established. The prevailing approach of the Courts and Tribunals is to look for a number of different indicators. The starting point is to be found in the case of Ready Mix Concrete (South East) Ltd v The Minister of Pensions and National Insurance [1968] 2QB 497. In that case a three part test for identifying a contract of service was identified as follows:-

 

(1)           An agreement exists between the servant and the master for the provision of services personally in return for pay ("personal service");

 

(2)   The master has a degree of control over the servant;

 

(3)           All other provisions in the agreement are consistent with the contract of service ("other factors").

 

The other factors may include but are not limited to the following, namely provision of a uniform and/or equipment, integration into the business; whether and which party bears financial risks; whether there is provision for bonuses, benefits or insurance; whether holidays and sick days are paid; how tax is paid on earnings.

 

22. In Carmichael v National Power [2000] IRLR 43 it was also established that there should be another key factor: mutuality of obligation. In other words, the employer is obliged to provide work and the employee is obliged to do work. The tribunal however is not necessarily obliged to confine itself to the terms of any written contract but may look at the overall factual matrix. The tribunal will also be concerned to see whether the contractual documentation entered into is a sham which obscures the true working relationship. In Protectacoat Firthglow Ltd v Szilagyi [2009] IRLR 365 the Court of Appeal in England and Wales noted that the test of a sham contract must be sensitive to the context. The guidance which they gave is as follows:-

 

(1)           It is for the court or tribunal to determine the true legal relationship between the parties. If there is a contractual document, that will ordinarily provide the answer. However if it is alleged the documentation does not represent or describe the true relationship, the court or tribunal has to decide what the true relationship is by considering the evidence of the parties.

 

(2)           Contracts may be partly written and partly oral and they can also be constituted by evidence of conduct. If the evidence established is that the true relationship is, or was intended to be, different from that described in written documentation, then it is the true relationship not the written documentation alone that defines the relationship.

 

(3)           To amount to a sham, contractual arrangements did not need to be entered with a common intention of the parties to mislead third parties. It would be sufficient if the arrangements as recorded and, where appropriate, as evidenced by the parties' conduct, did not reflect the parties' true intentions or expectations not only at the acceptance of the contract but also at time past.

 

The guidance has been confirmed by the Supreme Court in Autoclenz and Belcher and Others [2011] UKSC41. The Supreme Court held that the correct approach was to discover "the actual legal obligations of the parties" by assessing all relevant evidence, including the parties' conduct in practice.

 

23. Neither representative went into any detail in submissions as to whether there was an implied contract of employment between the claimant and the respondent. However, I consider it is relevant to set out the guidance issued by the Court of Appeal in England and Wales in Smith v Carrillion Ltd (2015) IRLR 467. In his judgment, Elias LJ set out in summary of the relevant principles as follows:-

 

"The question arises whether and in what circumstances a contract between the worker and the contractor to whom he is providing his services can be implied. This question has been considered by the Court of Appeal on a number of occasions. In submissions before us counsel focussed on two authorities in particular, mainly James v Greenwich London Borough Council [2008] EWCA Civ 35; [2008] ICR 545 and Tilson v Alstom Transport [EWCA Civ 169]; [2010] IRLR 169. It is not necessary to analyse these cases in any details as the principles they espouse were not disputed. For the purposes of this case they may be summarised as follows:-

 

(1)           The onus is on a claimant to establish that a contract should be implied; see the observations of Mance LJ, as he then was, in Modahl v British Athletic Federation [2001] EWCA Civ 1447, [2002] 1WLR 1192, para 102.

 

(2)           The contract can be implied only if it is necessary to do so. This is as true when considering whether or not to imply a contract between worker and end- user in an agency context as it is in other areas of contract law. This principle is reiterated most recently in a judgment of the Court of Appeal in James which considered two earlier decisions on agency workers in this Court, Dacas v Brook Street Bureau (UK) Limited [2004] ICR 1437 and Cable and Wireless Limited plc v Muscat [2006] ICR 975. It is sufficient to quote the following passage in the judgment of Mummery LJ with whose judgment Thomas and Lloyd LJ agreed (para 23). Mummery LJ stated that the EAT in that case had:

 

"... correctly pointed out, at para 35, that in order to imply a contract to give reality to what was happening, the question was whether it was necessary to imply a contract of service between the worker and the end-user, the test being that laid down by Bingham LJ in The Aramis [1989] 1 Lloyd's Rep 210, 224: "necessary ... in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with one another in circumstances in which one would expect that business reality and those enforceable obligations to exist".

 

(3)           The application of that test means, as Mummery LJ pointed out in James (para 24), that no implications warranted simply because the conduct of the parties "was more consistent with an intention to contract than an intention not to contract. It would be fatal to the implications of the contract that the parties would or might have acted exactly as they did in the absence of a contract."

 

(4)           It is, however, important to focus on the facts of each case. As Mummery LJ observed in James (para 51): "there is a wide spectrum of factual possibilities. Labels are not a substitute for legal analysis of the evidence." The question a tribunal needs to ask is whether it is necessary, having regard to the way in which the parties have conducted themselves, to imply a contract between worker and end-user.

 

(5)           Accordingly, if the arrangements which actually operate between the worker and the end-user no longer reflect how the agency arrangements were intended to operate, in may be appropriate to infer that they are only consistent with a separate contract between worker and contractor. This may be because the agency arrangement was always intended to be a shame and concealed the true relationship between the worker and the contractor. But it may also be simply because the relationship alters over time and can no longer be explained by the dual agency contracts alone. However, the mere passage of time cannot be enough to justify the implication of the contract on necessity grounds: James para 31 per Mummery LJ.

 

(6)           If an Employment Tribunal has properly directed itself in accordance with these principles, then provided that there is proper evidential foundation to justify its conclusion, neither the EAT nor this Court can interfere with the tribunal's decision: see Tilson per Elias LJ para 9.

 

It is also important to bear in mind that it is not against public policy for a contractor to obtain services in this way, even where the purpose is to avoid legal obligations which would otherwise arise were the workers directly employed: James para 56-61; Tilson paras 10-11. That will frequently but by no means always be the reason why the employer enters into a relationship with an agency. A contract cannot be implied merely because the Court disapproves of the employer's objective."

 

24. Although this guidance relates primarily to situations where the claimant was an agency worker, it is nevertheless relevant in this case to consider whether or not it is necessary to imply a contract of employment, given the facts of this case.

 

DECISION

 

(1)           Was the claimant an employee in his role as a Sports Complex Manager?

 

25. This is a case where the claimant has failed to produce any convincing evidence to show that he was an employee in relation to his duties at the Sports Hall Manager. It is for the claimant to establish that a contract should be implied (see Modahl, para 22 above). While it was not disputed by the respondent that he carried out duties in relation to the managing of the Sports Hall and provided a report to the Board of Governors in relation to the finances of the Sports Hall Complex, there was no evidence given by the claimant in relation to the control exercised over him (if any), from whom he took direction in relation to his work as manager or in relation to any of the other terms and conditions under which he worked which would have suggested that he was an employee rather than self-employed. The claimant asserted that the honorarium which he was paid was tax free, an assertion which seems to me at best naive and at worst, disingenuous. Given that the claimant was the IT Manager within the school and was aware that he was paying tax and national insurance on the rest of his earnings, it seems to me bizarre that he did not at least check whether he was due to pay tax on the honorarium which he was receiving. Miss Finnegan pointed out the claimant did not give any evidence either in relation to the situation regarding holidays and/or sick pay and whether he was entitled to these benefits in his role as Sports Hall Manager, whether he was required to carry out minimum hours or whether for example, he was entitled to join the pension scheme in relation to this employment. It is also important not to confuse the fact that the claimant was employed by BELB in his role as ICT Manager and Sports Hall attendant, whereas the payment made to him for the Manager's role was from the Sports Hall account. The claimant did not make it clear whether he alleged that BELB (now the Education Authority) or the respondent was his employer.

 

26. The respondent's position has been that the claimant was self-employed, although this seems to be founded mainly on the fact that he had been paid by way of a honorarium for which the respondent took no responsibility in terms of accounting for tax and national insurance. The position was somewhat confused. Certainly the claimant did not take the initiative himself to complete a tax return in relation to the honorarium in previous years, but he does seem to have accounted for tax on this amount in the 2013/2014 year. Shortly before the hearing the claimant's solicitors sent the respondent's representative a copy of the claimant's tax return for 2013/2014. The covering letter notes that for that tax year when the claimant was paid the honorarium "the claimant had a bill of a few pence for that tax year". The claimant's solicitor also noted that the claimant was to make a further tax return in January 2016 for the honorarium paid to him in October 2014 and that his "other income" in that matter was the honorarium "less expenses and fuel". It seems to me on balance, and given the lack of evidence the claimant was an employee, that the information before me tends to support the view that the claimant was self-employed, in that he completed his self assessment tax return and claimed expenses and fuel against those earnings. The claimant gave no evidence whatsoever of the way that he was directed or the conditions of his employment. He referred to the work he did in the job description which had been provided to him as a draft by Miss Kane, but that job description was intended to be used for evaluation of the post, and was not a contract of employment for the claimant.

 

27. The other consideration is whether it is necessary to imply a contract of employment in these circumstances, and neither party's representative addressed me on this point. Applying the test set out by Bingham LJ in The Aramis (see para 22 above) the issue is whether it is "necessary ... in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with one another in circumstances in which one would expect business reality and more enforceable obligations to exist." No specific evidence or submissions were put before me as to why it was necessary to imply a contract of employment in this case and accordingly, I believe that I cannot make a finding that it is necessary to imply a contract of employment between the claimant and the respondent.

 

28. On balance, therefore it is my finding that the claimant was self-employed and not an employee of the respondent and so the tribunal does not have jurisdiction to deal with his breach of contract claim under Article 3 of the 1994 Order.

 

29. Mr O'Brien suggested that the tribunal had jurisdiction to deal with the matter on the basis that it was a "contract connected with employment" under Article 5(2)(b) of the Industrial Tribunals (NI) Order 1996. This however misses the point. It is not the nature of the contract which is the only consideration as regards jurisdiction. Article  3 of the Industrial Tribunals Extension of Jurisdiction Order (NI) 1994 makes it clear that proceedings for certain breach of contract claims may be brought "by an employee". It follows that if the claimant is not an employee, the tribunal has no jurisdiction to hear the claim, and the claimant is therefore dismissed.

 

(2)           Was the claimant entitled to be paid a salary of £10,000 per year?

 

30. In case I have erred in relation to my finding that the claimant was self-employed and not an employee, I consider it appropriate to set out my findings in relation to the question of whether the claimant was entitled to the salary of £10,000 per year in relation to his role as Sports Hall Manager, and whether the respondent breached the agreement in failing to pay the claimant the balance of £5,200.00.

 

31. There was a clear conflict of evidence in relation to this matter. The claimant asserted that he had been told by Miss Kane and separately by Mr O'Hare at a meeting with Mr O' Hare and Mr Gough that he would be paid the sum of £10,000 per year as a "rolled up salary" in relation to his duties as Sports Centre Attendant and as Sports Complex Manager. Both Miss Kane and Mr Gough were clear that this had not happened. Miss Kane was clear first of all that she did not have authority to make such an offer and this was confirmed by Mrs White who confirmed that the principal of the school would not have authority to "hire and fire" staff. Just as significantly, in my view, Miss Kane pointed out that the school was in the process of implementing audit findings which had caused considerable concern about the financial management of the school. In light of that, she wanted to be sure that all matters were properly regularised. Indeed she was clear that in order to pay the honorarium in the autumn of 2013 for the previous year, she had to obtain clearance from the auditors from the Belfast Education and Library Board. In those circumstances her concern, and that of the Board of Governors, was to ensure that everything was done properly and in such a way that the approval of the Board would be forthcoming. She was clear that she had discussed with the claimant that a job description was being prepared, that this had to be approved and the job would then have to be advertised and a recruitment process had gone through. While she agreed that the claimant would have been well placed to be successful in that recruitment process, she made it clear that there had been no guarantees given to the claimant in relation to this.

 

32. Mr Gough expanded on this, pointing out that not only did the evaluation of the post need to be undertaken by the BELB, but in fact there was no generic job description for the post and so a specific job description had to be prepared. He was also clear that a payment code had to be assigned to the post and no recruitment process could be undertaken until those two steps had been fulfilled. He was emphatic that no assurance had been given by Mr O'Hare that payment for the post would be backdated to September 2013.

 

33. It is therefore my finding that as a matter of fact the claimant had no agreement with the respondent that he would be paid the sum of £10,000 per annum as a "rolled up" salary for his duties as Sports Hall Attendant and Sports Hall Manager. It seems extremely strange to me that the claimant did not complete a time sheet in relation to his Sports Centre Attendant's hours from September 2013, but only completed time sheets in relation to his additional hours according to his evidence. At the very least, it would seem proper that he should account for the hours he was due to do under that basic agreement before claiming any additional hours. There was in my mind no logic to support this. It also seems bizarre to me that the claimant who prepared the Sports Hall Accounts for 2013/2014 completed those accounts showing an honorarium due to himself as Sports Complex Manager of £4,800 and not the £10,000 to which he says he was entitled. If he was entitled to this amount and had clear evidence of it, it would seem appropriate to have put this amount into the accounts. It is also inexplicable as to why the claimant did not raise the issue of payment with Mrs White at the first available opportunity if (as he says) he was entitled to it and had been given a clear assurance of that by both Miss Kane and Mr O'Hare. For these reasons I prefer the evidence given by Miss Kane and Mr Gough in relation to these issues and find that the claimant was never given an assurance that he would be paid £10,000 a year in respect of a salary for the Sports Hall Manager's post.

 

34. The claimant in the course of the hearing proceeded to make assertions in relation to amounts he said he was due in relation to his Sports Centre Attendance duties. This was not a claim made by the claimant in his initial claim form, and I do not consider it appropriate to consider the matter at this point as it is not properly before me. Even if it were, it is well outside the time limit allowed. For all of these reasons the claimant's claim of breach of contract must fail and is dismissed.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 9-11 November 2015, Belfast.

 

 

Date decision recorded in register and issued to parties: