United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 49_93_1801

Appeal No. EAT/49/93, EAT/1022/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 January 1994

Before

HIS HONOUR JUDGE D M LEVY QC

MR J H GALBRAITH CB

MR S M SPRINGER MBE

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RIDGWELL FOX & PARTNERS          APPELLANTS

MR R J CAMPBELL          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR R HEDLEY

(OF COUNSEL)

Messrs Abbott King & Troen

Holbrook House

14 Great Queen Street

London WC2 5DG

For the Respondent MR J BOWERS

(OF COUNSEL)

Messrs Braby & Waller

48/50 St John Street

London EC1M 4DP


 


JUDGE LEVY: This is the first, and may be the last, of two appeals, certainly the first of the appeals launched by Ridgwell Fox and Partners, the Employers, who it is said employed Mr Campbell for a period. The part which arises for decision now is as to whether Mr Campbell was indeed an employee of Ridgwell Fox and Partners or worked with them in some other capacity. Following hearings on 20 August and 5 October 1992, the London South Industrial Tribunal unanimously held that Mr Campbell was an employee. That decision, from which the Employers appeal, was reached on 13 November 1992 and communicated to the parties on 19 November 1992.

We have had helpful submissions both by Mr Hedley for the Employers and Mr Bowers for Mr Campbell and our attention has been drawn by both Counsel to the decision in Piggot Brothers & Co Ltd v Jackson [1991] IRLR 309 and we go to the test which has to be followed when this Tribunal is asked to interfere with a finding such as that in dispute. We turn to paragraph 15 of their decision:

"The EAT, in unanimously allowing the employers' appeal, reminded itself of the limitations upon its own jurisdiction in the following passage in the judgment delivered by Knox J:

"..."

There are, however, three categories of case where it is the duty of the EAT to interfere. They are stated by Lord Donaldson MR in British Telecommunications v Sheridan [1990] IRLR 27 at p.30 as follows:

"The Employment Appeal Tribunal can indeed interfere if it is satisfied that the Tribunal (scil. the Industrial Tribunal) has misdirected itself as to the applicable law, or if there is no evidence to support a finding of fact, since the absence of evidence to support a finding of fact has always been regarded as a pure question of law. It can also interfere if the decision is perverse, as has been explained by May LJ in Neale v Hereford & Worcester CC [1986] IRLR 168 ."

This last is an allusion to the now very familiar sentence at p.173,45:

"Deciding these cases is the job of Industrial Tribunals and when they have not erred in law neither the appeal tribunal nor this Court should disturb their decision unless one can say in effect, "My goodness, that was certainly wrong".

We turn to paragraph 18 of the reasons of the Industrial Tribunal which reads:

"This is a difficult case. However, on balance, we are unanimous in our view that this was an employee/employer relationship which was to some extent disguised as one of self-employment. We are not satisfied on the evidence that this contract was tainted by illegality and that Mr Campbell should be denied his rights to employment protection."

We return to the three grounds on which we can interfere. The first is if the Tribunal has misdirected itself as to the applicable law, that was not pressed on us by Mr Hedley and we do not find that happened. The third is "My goodness that was certainly wrong". That is not a conclusion to which we have been impelled. It may be that if there had been a different Tribunal and different hearing there could have been a different conclusion. That follows from the finding which I have read - "This is a difficult case. However, on balance..". The Tribunal had looked at all the matters in controversy and came on balance to the decision it did. That leaves the third ground which we have to consider which is the second of the three, that the Master of the Rolls identified - "If there is no evidence to support a finding of fact since the absence of evidence in support of finding a fact has always been regarded as a pure question of law". In that regard, Mr Hedley has pointed to four findings of fact for which he says there was no evidence on the facts. Paragraph 17 reads:

"In our view on the facts nothing is to be deduced from the failure of Mr Campbell or the Respondent to pay tax and national insurance for Mr Campbell.

We think that when the Tribunal says "nothing is to be deduced" the Tribunal has been looking at the inferences which can be drawn and have themselves refused to draw any. We do not think this is something on which they can be criticised in the circumstances of this case; therefore we do not think that this is a finding of which Mr Hedley can complain.

The second comes a couple of sentences further down:

"However, the agreement as to a performance related bonus and the "invoices" to which we have referred points to a status of employee."

We think that is a finding which the Tribunal could have made on all the evidence having regard to the evidence including the opening statement of Mr Campbell's to which we have been referred and the inverted commas used on invoices. It may not be one which others would have drawn but we cannot say that it is not one which the Tribunal was entitled to draw.

The third matter which Mr Hedley says was no evidence for is the finding that Mr Campbell's relationship with the Company as its computer manager. Again this is a matter of fine tuning but we are satisfied that the words "computer manager" are used on occasion and it is an inference which the Tribunal could have drawn from the body of the evidence which they had to consider and through which we have been taken both in the bundles which were before us and supplementary bundles produced by both Counsel for this hearing.

The fourth matter to which Mr Hedley drew attention and which he said was a perverse finding, or a finding they could not draw, is to be found in paragraph 8 of the decision where it is stated:

"The company expected Mr Campbell to attend work regularly".

That was something which was in Mr Campbell's original statement. It is something which although there was a period of two months or so when he did not attend, is something which on the whole of the body of the evidence there was evidence from which that could be said and in all those circumstances we have come to the conclusion, not without hesitation, that there was evidence to support all the findings which the Tribunal made below. We remind

ourselves of the passage which I read at the beginning of this judgment. We do not think there are grounds on which we can or should interfere with it. On this aspect of the appeal therefore the Appellants fail.