United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 81_93_0507

Appeal No. EAT/81/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 July 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR A C BLYGHTON

MR K M HACK JP

---

MR M A BUSFIELD          APPELLANT

MR J BUNN T/A AIRE VALLEY CONSTRUCTION COMPANY          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant THE APPELLANT IN

PERSON

For the Respondents THE RESPONDENT IN

PERSON


 


MR JUSTICE MUMMERY: (PRESIDENT) This is an appeal from the decision of the Industrial Tribunal held at Leeds on the 12 November 1992. The decision was notified to the parties on the 15 December 1992. The unanimous decision of the Tribunal was that Mr Michael Busfield was not entitled to a redundancy payment as he was not :1-

employed by the Respondent. The Respondent was in fact Mr Busfield's brother-in-law, Mr Bunn, who traded as Aire Valley Construction Company.

Mr Busfield was dissatisfied with that decision. He argued throughout that he was employed. The Tribunal found that he was self employed. He appealed to this Tribunal by a Notice of Appeal received in the Appeal Tribunal on the 15 January 1993.

Before we deal with the facts and rival arguments in the case there are two points which we should emphasise in explanation of our decision. The first is that under Section 136 of the Employment Protection (Consolidation) Act 1978 this Appeal Tribunal can only hear appeals on a question of law from a decision of an Industrial Tribunal. It cannot hear appeals on a question of fact; that is because, as an Appeal Tribunal, we do not hear evidence from witnesses or documentary sources. We are solely concerned with correcting mistakes that may occur on the law stated or applied in the decision of an Industrial Tribunal.

The second point is that in a number of decisions of the Court of Appeal, it has been decided that the question whether somebody is employed or self employed is a question of fact. The decisions of the Court on this point are conveniently stated in Harvey on Industrial Relations and Employment Law starting at paragraph A/10.

The consequence of those two points is that this Tribunal can only interfere with a decision of the Tribunal if it is shown that, in coming to the decision that Mr Busfield was self employed, the Tribunal misdirected itself about the relevant legal tests, or misapplied the relevant legal tests to decide that question. With those points in mind we look at the facts found by the Tribunal.

The Tribunal heard evidence from Mr Busfield and from Mr Bunn. They both represented themselves at the Tribunal hearing, just as they have represented themselves on this appeal. The Tribunal stated its findings of fact in paragraph 2 of its decision. The facts found were these. Mr Busfield started his working arrangements with Mr Bunn in May 1971 as a joiner, although he did seem to have carried out certain additional duties and types of work not normally associated with those of a joiner. The relationship terminated on the 20 December 1991.

Throughout the relationship the treatment of Mr Busfield for tax purposes was on a self employed person. He employed an accountant to prepare his accounts for submission to the Inland Revenue. He paid his tax and national insurance as assessed on that basis. He also paid a 2% training board levy in respect of the training of apprentices which was not paid by other people engaged by Mr Bunn on the PAYE system.

He was paid an hourly rate for the work he carried out, although he was also paid an additional rate for evening work. Mr Busfield took his holidays effectively when he wished on giving notice to Mr Bunn. He was not paid any holiday wages or hourly rate during the period of the holiday. Similarly when he was off sick he was not paid an hourly rate.

Mr Busfield obtained a 715 certificate granted to those who are deemed to be self employed and operating as contract for services as distinct from employment contracts. Mr Busfield was free to withdraw his labour at any time, and he did so, according to the evidence, on one occasion when he was engaged towards the end of the 1991 in building a house. He subsequently returned in November 1991 to be re-engaged by Mr Bunn. No notice was paid to Mr Busfield or any pay in lieu of notice when the relationship was terminated through lack of work in December 1991.

Those were the facts found by the Tribunal who heard the evidence from the two parties. The Tribunal applied the law to the facts. The Tribunal referred to the definition of employee in Section 153 of the 1978 Act; considered all the facts that have applied to the particular relationship between them, in particular, the fact that Mr Busfield was free to operate and grant his labour to Mr Bunn whenever he so desired, such as taking holidays when he wished and withdrawing labour when he desired. In all the circumstances the Tribunal concluded that he was not employed and not entitled to a redundancy payment.

Mr Busfield has clearly stated what he thinks is wrong with that decision. In his Notice of Appeal he briefly summarised his main ground of complaint. He enclosed with his Notice of Appeal a copy of another decision by the Industrial Tribunal sitting at Leeds with a different Chairman and two different lay Members, hearing the case of a Mr Rycroft and a Mr Wood against Mr Bunn, trading as Aire Valley Construction Company. That case was heard on the 9 December. The unanimous decision in that case was that both Mr Rycroft and Mr Wood were entitled to a redundancy payment on the basis that they were employed.

The fundamental point made by Mr Busfield is: how could their case be treated as differently from his. He said, quite understandably:

"I can't understand why two different Tribunals using the same laws reach two opposite decisions."

In addition to that general point Mr Busfield made a number of individual points about the different aspects of the work that he did, comparing them to the cases of Mr Rycroft and Mr Wood. He prefaced his remarks by saying that, if his Tribunal had applied the tests of employment with the same thoroughness and helpfulness as the Tribunal that heard the case of Mr Rycroft and Mr Wood, he would have won the case and it would have been decided that he was employed.

He developed this argument by saying that the hours of work of all three of them were the same. There were the same arrangements about equipment. He had an order book in the firms name. He dealt with the point about the 715 certificate. He said that he had identical status with the Revenue with Mr Rycroft and Mr Wood who had SE60s. The control exercised over all three of them was the same. None of them ever did other work. Mr Busfield said that he never worked for anybody else. He did not regard himself as free to work for anybody else. He said the position about the apprentice training board levy was the same as with the other two.

He complains that the Chairman did not pursue the facts with him in the same thorough way that the Chairman in other Tribunal had done with Mr Rycroft and Mr Wood. He made the general point that he was never asked by Mr Bunn to go on to the books and become part of the PAYE system.

Against this, Mr Bunn has made a number of arguments. His broad submission is that the Tribunal was right in the case of Mr Busfield's decision. He submitted that the Tribunal that heard the case of Mr Rycroft and Mr Wood might well have come to the same decision as was reached in Mr Busfield's case if they had heard his evidence. A significant difference between the evidence in the two cases was that Mr Bunn did not attend the hearing of Mr Rycroft and Mr Wood's claim. The Tribunal said in paragraph 1 of its decision:

"The tribunal has heard evidence from each applicant, on oath. The respondent was not present. We have treated the Notice of Appearance as representations in writing."

In the case of Mr Busfield Mr Bunn did attend. He gave evidence. He was cross-examined. We have the Chairman's notes of that evidence.

We have considered the arguments on each side and looked carefully at the decision and at the Notes of Evidence. We have come to these conclusions. First, it is unfortunate that these cases of Rycroft and Wood, on the one hand, and Mr Busfield, on the other, were heard at different times, before differently constituted Tribunals. They all worked in the same business run by Mr Bunn. The feeling of Mr Busfield that he has been treated differently, (he says wrongly), from Mr Wood and Mr Rycroft might have been avoided if the same Tribunal had heard all the cases one after the other. In future steps should be taken, where this situation arises, to prevent people working in the same firm having their cases decided at different times by different Tribunals with possibly different results.

The second point is this; that having looked at the Notes of Evidence the Tribunal hearing Mr Busfield's case were fully entitled to make to all the findings of fact set out in their decision. Thirdly, we are unable to find, despite the detailed points made by Mr Busfield in his argument, any error of law in the decision of the Tribunal. The Tribunal found facts in accordance with the evidence. They looked at the definition of employee and considered all the circumstances. They came to a conclusion on the facts which they were entitled to come to. If there is no error of law we have no power to reverse their decision. It follows that this appeal must be dismissed.

We hope that the disagreement that has arisen is not a continuing source of conflict between Mr Busfield and Mr Bunn. There is nothing that we can do to alter the decision of the Tribunal. We express the hope that they will get on together in future, despite the fact that this difference of opinion has led them to go before an Industrial Tribunal and to attend on this appeal. The only order we make is that the appeal is dismissed.