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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Syms & Anor v Provident Personal Credit Ltd [1996] UKEAT 1238_95_1202 (12 February 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/1238_95_1202.html
Cite as: [1996] UKEAT 1238_95_1202
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
MR J R CROSBY
MR D A C LAMBERT
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellants APPELLANTS IN PERSON
MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary hearing of an appeal by Mr & Mrs Syms against the decision of the Industrial Tribunal held at London (South) over five days in April and July 1995. The Tribunal sent the extended reasons (which ran to ten pages) to the parties on 16 October. Those reasons explained how the Tribunal reached the unanimous decision that Mr & Mrs Syms were not employed by the Respondents, Provident Personal Credit Ltd. It followed that their complaints of unfair dismissal failed.
Mr & Mrs Syms appealed by Notices of Appeal served on 16 November. Their contention in their grounds of appeal in that in law they were employees, not self-employed agents, of Provident Personal Credit. At about the same time as appealing, a request was made for a review. A letter was sent on 23 October asking for a review of the decision. On 22 December the Chairman refused a review on the grounds that the application had no reasonable prospect of success. Unfortunately, Mrs Syms has explained to us, she only received a copy of the decision on the review when she was sent papers from this Tribunal. She says she has never been notified, as she should have been, by the Industrial Tribunal. This is regrettable, but for the purposes of today's decision, there is nothing that we can do about that.
The question we have to decide is whether Mr & Mrs Syms's appeal raises an arguable point of law. If it does not raise an arguable point of law, there is no point in the case proceeding to a full hearing at which there would be representation from Provident Personal Credit Ltd. We only have jurisdiction to hear an appeal on a question of law arising from a decision of, or in proceedings before, an Industrial Tribunal. The issue before the Tribunal was one which is simple to state, but by no means easy to answer in many cases. That is, what was the work status of Mr & Mrs Syms? Were they employees? If they were, they were entitled to bring a complaint of unfair dismissal. Whether they succeeded or not would depend on all the facts and circumstances relating to the reason for their dismissal and whether it was fair and reasonable to dismiss them for that reason.
If, however, they were not employed by the Respondent, then they would have no statutory right to claim unfair dismissal. In the Originating Applications, which were presented to the Tribunal on 21 October, Mr & Mrs Syms both claimed unfair dismissal and both stated that their jobs were these: self-employed commission agents. They set out the details of the circumstances in which they said they had been unfairly dismissed. There has never been any doubt about the defence raised by Provident Personal Credit to the claim. They said, in their Notice of Appearance, that the Applicants were not employees of theirs, they were self-employed agents. The terms and conditions of the Agency were set out in a written agreement. The written Agency Agreement stated in terms that it was agreed that the Agent is not an employee of the company and the agreement is not a contract with an employer or a contract of service. They said that, following an investigation, the Agency Agreement had been summarily terminated, but there was no liability for unfair dismissal.
That was the issue for the Tribunal. At the Tribunal Mr & Mrs Syms were represented by a union representative from USDAW. Provident Personal Credit had Counsel. In the decision the Tribunal set out the background facts. They set out, correctly in our view, the legal principles which apply to determine whether someone is employed under a contract of employment. In a full review of all the arguments of fact and law, the Tribunal helpfully set out, under a number of headings, what they took into account in their decision. They first of all listed factors which they thought were consistent with the contract of employment. Although Mr & Mrs Syms were remunerated entirely by commission, they risked no capital or investments in a business. They owned no goodwill. Under the terms of the agreement there were various provisions indicative of employment. Mr & Mrs Syms were throughout members of USDAW. Those were the kind of factors which the Tribunal correctly thought were consistent with employment. They then set out factors which were consistent both with employment and self-employment. They set out the long period for which they had worked, about twenty-five years; and the separate contracts which had been signed up during that period. The longevity of the working relationship was a sign of the existence of a contract of employment, but, on the other hand, self-employed workers could provide their services on a long term basis. They worked no regular or stipulated hours. They were free to work when they liked. They were responsible for organising their own time for their convenience and for their customers convenience. That was a factor which could be consistent with self-employment and also with certain kinds of employment. The Tribunal referred to the fact that they were not provided with a company health insurance. They said that the provision of such a benefit is usually associated with employees, but its absence was not a clear indication of self-employment as many employees worked for their employers without the benefit of such insurance.
Thirdly, the Tribunal listed those factors which were inconsistent with the contract of employment. Mr & Mrs Syms were not obliged to provide exclusive service. They were prohibited from competing working for a competitor but, subject to that, they could devote as much time (or as little time) as they wished to the Respondent's business. Throughout their relationship, the parties' view was that Mr & Mrs Syms provided their services as independent contractors. They were responsible for making their own arrangements for payment of tax on Schedule D. They paid Class 4 self-employed National Insurance Contributions. They had a Chartered Accountant to prepare their accounts. These, and various other factors, such as the non-receipt of holiday pay, and the non-payability of sick pay, particularly the degree of control and direction under which they worked, were listed as matters which the Tribunal thought were inconsistent with the contract of employment.
In our view, the Tribunal, having set out all these factors under the three headings, were legally entitled to come to the conclusion that Mr & Mrs Syms were not engaged under a contract of employment, but had worked for the Respondent under Agents Agreements from 1969 as independent contractors. As the Tribunal concluded that they were self-employed, their claims for unfair dismissal could not succeed. Their complaints were dismissed.
At the hearing today, Mr & Mrs Syms have represented themselves. They have made it clear to us that they feel strongly that they have been unfairly treated by the Respondents. They were dismissed without an interview. They feel that there is a stigma on them as a result of the manner in which they have been treated. There was no justification, they say, for treating them in this way. They have made some particular complaints about the behaviour of the Respondents and their advisers. They have shown us, for example, a transcript of evidence which they say has been doctored or distorted, and gave the impression of being an official transcript of the hearing, which it was not. It was only a transcript prepared by the Respondent's solicitors. It is not relevant for us to investigate this. This is a matter that was considered by the Chairman on the application for a review. He came to the conclusion, as already stated, that there were no reasonable prospects of a review being granted on the basis of these complaints. Those complaints were made, in particular, in relation to the position of Mr Kenneth Gibson. Those matters are more fully explained in the reasons of the Chairman for refusing the application for a review.
The position is, as we have attempted to explain to Mr & Mrs Syms, that we are only concerned with whether there is an error of law in the decision. We have got no power to re-hear the case. We can make a note of slips or irregularities that may have occurred in the procedure, such as the failure of the Industrial Tribunal to give proper notification of the decision on the review application, but it is not our function to re-decide the case or to investigate whether Mr & Mrs Syms may have some other case on the basis of the complaints they have made. The question is simply this, was there an error of law in the Tribunal's decision that Mr & Mrs Syms were self-employed? In our view, there was not. It is a careful decision which makes clear findings of fact, correctly refers to the legal principles which apply to determine this question, and sets out in detail the various arguments one way or the other. Their conclusion is a matter of judgment from which, in our view, there is no appeal. There is no legal error in it. In our view, the appeal must be dismissed at this stage.