United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 784_93_0202

Appeal No. EAT/784/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 February 1994

Before

THE HONOURABLE MR JUSTICE WATERHOUSE

MR J C RAMSAY

MR P M SMITH

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MR M B CLARKE          APPELLANT

JOHN CLARKE (FINANCIERS) LTD
SECRETARY OF STATE FOR EMPLOYMENT          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MISS L CHUDLEIGH

(OF COUNSEL)

Messrs Fox Hayes

Solicitors

Bank House

150 Roundhay Road

Leeds LS8 5LD

For the Respondents NO APPEARANCE BY OR ON BEHALF OF           RESPONDENT


 


MR JUSTICE WATERHOUSE: Despite the attractive and tenacious argument presented by Miss Chudleigh, Counsel for the Appellant in this case, we have reached the conclusion that there is no arguable point of law and our decision, therefore, is that the Appeal must be dismissed without calling upon the Respondent to answer the argument.

In short, the position is that the Appellant sought to establish that he was an employee of the first Respondents, that is, John Clarke (Financiers) Ltd, now in receivership. The decision of the Industrial Tribunal was that he had failed to prove that he was an employee and, accordingly, his application for redundancy payment failed.

The suggestion by Miss Chudleigh is that the Industrial Tribunal that heard the application in Leeds on 10 August 1993 erred in law in their approach to the case in at least two ways. Firstly, it is said, they attached undue importance to the question of control instead of reviewing in a balanced way all the relevant circumstances. Secondly, it is submitted that they erred in law by misinterpreting or failing to apply properly the decision of the Judicial Committee of the Privy Council in Lee v. Lee's Air Farming Ltd [1961] AC 12.

The issue that the Tribunal had to decide, as Miss Chudleigh accepts, was essentially a question of fact. That was stated in the full reasons of the Tribunal, at paragraph 6, in which reference was made to Eaton v. Robert Eaton Ltd [1988] I.C.R.302. The reasons of the Tribunal contain a full account of the facts and circumstances that the Tribunal considered relevant. They referred expressly to Lee v. Lee's Air Farming Ltd (at paragraph 9) and made it clear that they accepted that it was possible that a person could be both a director, even a sole director of a company, and employee at the same time. It is equally clear that, although they regarded the question of control as being important, as stated in paragraph 8, they accepted also that it was merely one of the circumstances that they had to take into account. Indeed, they referred expressly to Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [1968] 1 All ER.433, in which Mr. Justice MacKenna reviewed the many matters that may be material when deciding whether or not a person is or was an employee.

Looking as closely as we may at the reasons given by the Tribunal in this case, we cannot detect any error of law on their part or any basis upon which it could be argued successfully that their factual conclusion was founded upon an incorrect approach to the evidence or was perverse.

For those reasons, therefore, we are bound to hold that the Appeal must be dismissed.