United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 722_94_2505

Appeal No. EAT/722/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25th May 1995

HIS HONOUR JUDGE HULL QC

LORD GLADWIN OF CLEE CBE JP

MR R H PHIPPS

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RJD ASSOCIATES          APPELLANTS

MISS N P HINDES          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR RICHARD DOBB

RJD Associates

Home Farm

Coach Road

Ripley

Derbyshire

DE5 3QU

For the Respondents MR J KIRK

Free Representation Unit


 


JUDGE HULL QC: This is an appeal by a firm called RJD Associates but, in fact, that is Mr Dobb, who has appeared in front of us. The Respondent is Miss Hindes, who describes herself as a financial consultant.

She became associated, to use an entirely neutral term, with Mr Dobb in 1993. I have to use the neutral term because Mr Dobb asserted that, in fact, she was self-employed and has a commission or agency agreement with him and that he agreed to pay her a retainer. She says, and has said throughout, that she was, in fact, employed by him and had a salary of £7,000 a year. The difference between them was acute on that point, as will be seen. She went on in this association until 1st February 1994 when she resigned and at that time she had been paid two monthly instalments of her "salary" and a handsome present at Christmas, which Mr Dobb says was really on account of rewards that she was to earn. What she was doing was getting business as an agent, particularly insurance policies, and she was acting as consultant' nowadays, of course, the clients expect wise advice as well as the actual financial product. That was the general nature of it. I should explain at the outset, that these matters of fact are merely incidental to our considerations because Parliament has said that appeal lies to us purely on matters of law. We are not like, for example, the Court of Appeal of the Crown Court, able to entertain appeals where questions of fact are involved, and decide those for ourselves. Still less, of course, can be hear any evidence ourselves.

She made a complaint to the Industrial Tribunal asserting, as I say, that she was an employed person and that there had been an unlawful deduction from her wages; in effect, she was saying that for something like five months she had not been paid her salary, as she called it. Mr Dobb put in the answer of the Appellants saying that it had been a mere retainer under the heading:

"Basic wage/salary" [he has added the word] "Retainer"

"£7,000 per year"

He then said that there was certain conditions on which the retainer was payable. It was not payable unless she brought in a fair amount of business, which he sets out and, as he has explained to us today, he also expected her to attend in the office on a daily basis. If she did not, she was not earning her money. In fact, he says that she did not attend regularly. She tells us through her Counsel that she did attend regularly.

So far as he was concerned, she was only a consultant employed under an agency agreement on commission. She did have this retainer but that was, in effect, to be offset against commission and had, therefore, to be earned by obtaining business.

The matters were laid before the Industrial Tribunal and the Tribunal sat at Nottingham under the Chairmanship of Mr Sneath to hear the claim which, of course, was under the Wages Act, brought by Miss Hindes. They give their decision, which is a fairly short one, starting at page 19 of our bundle. Mr Sneath sat with his two industrial Members. They said:

"The unanimous decision of the Tribunal is that the respondent [Mr Dobb] has made an unlawful deduction from the wages of the applicant of £2,616.65 and we order the respondent to pay that sum to the applicant."

They find the facts in some remarkable paragraphs showing the uncertainty which surrounded this whole matter:

"Following that letter the parties had a second meeting on 21 June 1993. The respondent [that should be "the applicant"] produced a document headed `Contract Outline'. It provided for a salary of £7,000 per annum paid monthly in arrears on 28th or nearest working day. That document spoke also of a minimum acceptable level of business and business activity as defined.

4. The respondent [Mr Dobb] has produced a different version of that document which shows the payment of £7,000 per annum as a retainer rather than her salary and makes its payments subject to acceptable work levels."

So here the parties who were, on any view, in contract with each other, produced different version of the same alleged contract to the Tribunal. They say:

"5. The respondent paid the applicant £583.33 at the end of the month of July and August. Thereafter he paid nothing more other than £300 at Christmas 1993.

6. We believe the applicant when she says that she agreed to work for the respondent for £7,000 per annum plus commission earned above that figure. We reach that conclusion because that was the only basis upon which the applicant was prepared to work for the respondent. Although the respondent has sought to explain his payment of £585.33 in July and August in a way consistent with his case, we find that those payments simply reflected the agreement between the parties as described by the applicant.

7. The applicant continued to work for the respondent until 1 February. She was told meanwhile that she would be p[aid when commissions had in turn been paid to the respondent by the principal insurance company for whom he worked. In those circumstances, the contract between these parties continued until the resignation of the applicant and she was entitled to be paid up to the date of her resignation."

They set out how she claims her salary through these months and they order the gross sum to be paid, which has not been paid, pointing out that it is up to her, now that she has left employment, to account to the Revenue for tax and to the National Insurance people for their sums due. Needless to say, if Mr Dobb had realized that he was, as the Tribunal found he was, the employer of this lady, it would have been his duty to make the proper deductions from her salary.

Mr Dobb has appealed to us and as Counsel, Mr Kirk, has pointed out to us - we are very grateful to Mr Kirk for his short and pointed submissions - in his notice of appeal Mr Dobb says that matters were not considered by the Tribunal as they should have been. In particular, he said:

"points which I wanted to highlight were not allowed. These were:

1. That the applicant did not attend her place of work for a period of approximately 3 months.

2. She did not achieve the necessary level of business to warrant payment.

3. A large amount of the commission that she has earnt [sic] has now had to be paid back to the company Legal & General as it has been cancelled by the clients."

Mr Dobb has explained to us that the Tribunal Chairman, on behalf of the Tribunal, told him that what they were concerned with was whether there was a contract of employment or whether, in fact, Miss Hindes was self-employed. The Tribunal was concerned with that point but that did not mean that they did not have to consider the other points which Mr Dobb raises in his notice of appeal.

Mr Kirk says that all those points were considered by the Industrial Tribunal and he invites us to look at the Chairman's notes of evidence; he takes us through the decision, which I have already read; and he says. "It is clear that these points were, indeed, before the Industrial Tribunal. The fact that they reached conclusions of them wholly unfavourable to Mr Dobb is not a matter withwhich this Tribunal can interfere, for they are questions of fact."

It appears to us that Mr Kirk's submission is well-founded and we look also, again with Mr Kirk's assistance, at what the Chairman himself says. The Chairman writes as follows, having set out his notes:

"In his notice of appeal the appellant asserts that the Tribunal hearing on 24 June 1994 was to establish if the applicant was employed or self-employed and no more'. I have no independent recollection of what I said nor any note. Both parties were unrepresented and I probably said, for the sake of simplicity, that the Tribunal was there to decide whether or not there had been a contract of employment between the parties in the period July 1993 to January 1994 and, if so, to decide what its terms as to payment. It appears from my notes that the question whether applicant performed her part of the bargain was addressed in both cross-examination of her and in the evidence-in chief of Mr Dobb."

We have been shown various documents which we were told were before the Industrial Tribunal - indeed, it is plain they were - one in particular, which says that she did regularly attend at an estate agent's where business was to be had.

Mr Dobb has put these matters to us again today. It is fair to him to say, and not intended in any way to be rude, that he is, of course, as an advocate, simply an amateur; and not a gifted amateur, if I may say so. He finds difficulty in seeing quickly what the point is. We have no doubt that he is putting forward his case as he sees it and finds difficulty in understanding that we can only consider points of law here. If we thought that the Tribunal, through its Chairman, had prevented Mr Dobb from putting his case and cut him short and not done him justice, then that would undoubtedly be a point of law, because it would mean that he had not received justice at the Industrial Tribunal. It is fairly clear, from seeing Mr Dobb, that he did not fully understand that the Tribunal had to decide a number of points. Mr Dobb was addressing them and wanted to address them on the point he thought was the point of the case, namely, that Miss Hindes was never employed by him at all but was self-employed. They decided that point and, no doubt, were unwilling before doing so to hear evidence on points which only arose when and if they decided that point; but it did not follow that at the proper stage they were not going to go into matters which Mr Dobb has raised with us. On the contrary, not only did they have to go into them but, as is obvious from the passages which we have looked at, they did go into them. The fact that Mr Dobb was not able to play the part which he would have wished in that process by addressing arguments and further evidence to them is not, with great respect, a ground for criticising the Tribunal. It is an inevitable hazard which arises, of which Tribunals are only too conscious, that people who are appearing in person may very well get lost in the complexities of the case and not see what is important at particular moments. We have no doubt this Tribunal did do its best, with Mr Dobb's assistance, of course, to arrive at the truth with regard to all the issues which were laid before them.

We do not think that Mr Dobb was shut out from putting matters forward which he wished to put forward. We have no doubt that Mr Dobb did not put forward all the matters which he has told us about today; indeed, he has told us that one matter occurred to him as recently as this morning. That is the nature of things. If one appeals, one does think of fresh points. The fact is, it appears to us, that this Tribunal proceeded to arrive at its decision on the facts. It is quite pointless to tell us that that decision is mistaken or wrong or anything of that sort. It was their responsibility, not ours. We cannot hear appeals on fact. What we can do is to ask ourselves, with the assistance of those who appear in front of us, whether we can find any error of law, either in the decision itself of in the way the Industrial Tribunal went about arriving at that decision. Having heard everything that has been said, we are quite unable to find any error of law here. We think this Tribunal proceeded fairly and they arrived at a decision which is, on the fact of it, rational. There is no point of law shown to us.

In those circumstances, the appeal has to be dismissed.