United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J MILLER Free Representation Unit 49-51 Bedford Row London WC1R 4LR
For the Respondents	MS R DOWNING (of Counsel) The Solicitor The Post Office Impact House 2 Edridge Road Croydon Surrey CR9 1PJ


 


JUDGE DAVID PUGSLEY: In this case we have been anxious to scrutinise with great care all the issues that have arisen in this case. In the multiplicity of issues the appellant has raised, we wanted to see whether there was any matter that caused us concern that there was an error of law in the original decision.

The background of this case is a one that is by no means unfamiliar to a tribunal. We are told by Ms Downing, for the respondent, that in fact that there was at one stage an unfair dismissal case that was not proceeded with. The appellant is complaining as to the errors of law in the decision of the tribunal of London (North), a decision which was promulgated on 26th February 1996, whereby it held that it did not have jurisdiction to hear her complaint of race discrimination.

The appellant was a subpostmistress, who had been appointed in 1981 under the standard contract. It is common ground, and it has not been argued to the contrary before us, that the appellant was bound by the terms of the contract which was put in evidence before the original tribunal. That contained various provisions, the most important one was this:

"5. The Subpostmaster is not obliged to attend the sub-office personally but he is required, whether he is there or not, to accept full responsibility for the proper running of his sub-office and the efficient provision of those Post Office services which are required to be provided there. Retention of the appointment as Subpostmaster is dependent on the sub-office being well managed and the work performed properly to the satisfaction of the Post Office Counters Ltd."

The tribunal carefully sets out the various terms of the contract, and deals with the argument raised then, as now by Mr Miller, that the appellant's position should be construed as "employment" within the meaning of section 78 of the interpretation section of the Race Relations Act 1976. Employment is defined as:

" "employment" means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly."

Courts on many many occasions have to decide as to whether or not someone is employed under a contract of service or services. It is right to say that the general drift of decisions over the last ten or fifteen years has been to accept that it is not possible to give a universal and definitive rule of law which can easily identify the distinction between a contract of service and a contract for services. Mummery J in Lorimer v Hall [1984] ICR 218, a case, approved by the Court of Appeal, likened the process of determination to a painter painting a picture, rather than an accountant adding up a balance sheet. It is not suggested that Mrs Soni can claim she was employed under a contract of service.

What is said in this case is that it was a contract personally to execute any work or labour. We have considered this argument carefully, as indeed, if we may say so, did the Industrial Tribunal. They rejected that submission. They noted that in the case of Tanna v The Post Office [1981] ICR 374. The Employment Appeal Tribunal had cause to analyse the definition in the Race Relation Act. The judgment of Slynn J, the then President of the Employment Appeal Tribunal, was in this vein:

"It seems to us that this a provision in which the word "personally" has been quite deliberately inserted. "Employment," for the purposes of this statute, does not arise merely where there is a stipulation that work or labour shall be done. It is a contract personally to execute any work or labour. That, it seems to us, quite plainly requires that the person entering into a contract shall himself be under an obligation personally to do work or labour. It may well be that some of what he undertakes to do he may delegate; but in our judgment it is essential for there be "employment," that the person making the contract shall himself undertake to do, at any rate, some of the work or labour."

Now, Mr Miller sought to distinguish that case in his skeleton argument before us, and he makes a point that it is common ground that for a number of years, 11 years or so, this appellant had in fact worked at the Post Office, She had done the work personally. In a somewhat far-reaching argument, he has argued this standard form contract should be construed differently according to whether or not a person in fact had worked personally. As we understand Mr Miller's argument, it is that if a person working under this contract did nothing himself or herself and it was one of many shops with Post Offices which he or she had, or in the alternative, that person had other employment, and all that was done was to ensure that the service was carried on as required by the contract, then that would not be a case which would be within the provisions of the Race Relations Act. But, says Mr Miller, if the position is that in fact the person is working there personally, then the contract should be construed in a different way.

We do not consider Leighton v Michael [1995] ICR 1091, a case concerning illegality is authority for such a novel proposition of law which impresses us by its audacity, but not by its logic. A contract has to be construed in context. This is not a sham term. We accept from our own experience and knowledge of the world and from what we have been told by Ms Downing that many people do avail themselves of this term to build up a business of a number of Post Offices or indeed operating a Post Office as a side-line through a manager or the like. The term is there for real commercial purposes and is not a pretext for excluding the Act.

Indeed, it could be said that even if condition 5 was not there, read as a whole this contract is not a contract personally to make sure to create any work or labour, but merely to ensure that a service is provided. Indeed, the longer that Mr Miller addressed us, the more certain we became that the very central plank of his case was undermined by his own arguments. If you look at the contractual terms, time and time again the position is that the contracting party with the Post Office, is taking upon himself or herself the responsibility not to carry out the work personally but to ensure the work is carried out.

We have considered all the subsidiary points raised in argument. The reality is that this case turns on the proper construction of section 78 of the Act. The Post Office submit that Tanna is on all fours with this case. It is not distinguishable on the ground that in that case it was dealing with an application for a post and this is a case where a contract was terminated. It is put, and put in terms, that the fact that the appellant worked there personally has no relevance in the light of the decision in Tanna which requires the contractual obligation to be the determining factor, and not how the individual chooses to perform the contract. Further, we are invited to look at the Court of Appeal decision in Gunning v Mirror Newspaper Group [1986] ICR 145. In that case the Court of Appeal held that whether a contract was within section 82(1) of the Sex Discrimination Act 1975, an analogous term, depended on:

"(a) whether looking at the contract as a whole it contained on the part of the person who was contracting to provide services any obligation that he or she would personally execute any work or labour; and

(b) whether that obligation was a dominant purpose of the contract."

We consider that if you look at the contract as a whole in the light of the authority of Tanna, it is quite clear that this was not a contract within the ambit of section 78 of the Act. This was a contract in which the dominant purpose was that the Post Office wanted their services provided and their merchandise sold. How that was done was a matter for the person who contracted. That person was not required to do the work; he or she was required to ensure that the job was done.

In our view, this is a case where it is manifestly the case that the Industrial Tribunal properly considered the issues raised in the case, applied the correct legal tests, and nothing we have heard from the appellant's representative, Mr Miller, had caused us any doubt in the case at all. There is no error of law that he has identified, and we therefore reject the appeal.