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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Terris v Crown Catering Ltd [1996] UKEAT 470_95_2301 (23 January 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/470_95_2301.html
Cite as: [1996] UKEAT 470_95_2301
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At the Tribunal
Judgment delivered on 23 February 1996
HIS HONOUR JUDGE P CLARK
MS S R CORBY
MR R H PHIPPS
JUDGMENT
Revised
APPEARANCES
For the Appellant Mr Max von Santen-Pagava
For the Respondents Mr James Stuart
Messrs Mullis & Pearce
JUDGE CLARK: This is an appeal by Mrs Terris against the decision of the Stratford Industrial Tribunal sitting on 16 February 1995 that she was not employed by the Respondent ("Crown") and that accordingly the Tribunal did not have jurisdiction to entertain her complaint of unfair dismissal. The Tribunal's extended reasons for their decision ("the reasons") are dated 14 March 1995. We have also been provided with the Chairman's notes of evidence ("the Notes").
The Dolphin Leisure Centre is owned by the London Borough of Havering ("Havering"). Prior to 30 March 1990 catering services at the Leisure Centre were provided by Taylorplan under a contract made between Taylorplan and Havering.
According to the Appellant's evidence she began work at the Leisure Centre in April 1984 as a bar person. She worked regular hours. She was given a written contract of employment which she has since lost. She received her pay monthly from September 1984 by way of direct transfer into her bank account. Tax and National Insurance were deducted from her gross pay. She was entitled to paid holidays and to sick pay. She had no other work outside the Leisure Centre. It is her case that she was employed by Taylorplan under a contract of service.
In March 1990 Havering terminated its catering contract with Taylorplan and entered into a new contract with Crown. Her evidence was that the catering equipment was owned by Havering. On 29 March Taylorplan's contract ceased. On 30 March Crown took over. The nature of the catering service remained the same. She was given Written Particulars of Terms and Conditions of Employment by Crown, which she signed on 31 March 1990.
It was argued on her behalf, as the Tribunal record in paragraph 3 of the reasons, that a relevant transfer had taken place between Taylorplan and Crown and that her employment with Taylorplan automatically continued with Crown.
Thereafter, so Crown contended, she was treated as a "casual". The Tribunal found that throughout her association with Crown she was treated as a casual employee providing services at the bar and for functions as and when required. Although she had been a regular attender over many years there was no obligation on the part of Crown to supply her with work and she had the right to decide whether or not to accept it.
It was submitted on behalf of Crown that she was not employed by them under a contract of service. Reliance was placed on the Court of Appeal decision in O'Kelly v Trusthouse Forte [1983] ICR 728 and the unreported decision of this Appeal Tribunal in Ahmet v Trusthouse Forte (EAT/124/82). In particular, it was said that the absence of mutuality of obligation to provide and do work was inconsistent with a contract of service.
In reaching its conclusion the Industrial Tribunal reminded itself of its obligation to consider all aspects of the relationship, no single factor being decisive, in order to determine whether the person was carrying on business on his own account. Such an approach was specifically approved by Sir John Donaldson MR in O'Kelly at page 762F. It then considered what it took to be the important factors in the relationship between Mrs Terris and Crown and concluded that she was in business on her own account as an independent contractor supplying services to Crown. She was not an employee within the meaning of Section 153(1) of the Employment Protection (Consolidation) Act 1978.
On behalf of the Appellant Mr M von Santen-Pagava first submits that the Tribunal failed to make all necessary findings of fact and law in order to arrive at a proper conclusion on this issue. He points out that although the "transfer" point was raised, it is nowhere dealt with by the Tribunal. In particular, the following questions arose but were not answered by the Tribunal;
(1) Was Mrs Terris employed by Taylorplan under a contract of service at any time between April 1984 and 29 March 1990, if so
(2) Was there a relevant transfer of the undertaking or part of the undertaking in which she was employed from Taylorplan to Crown? See Dines v Initial Health Care [1995] ICR 11.
(3) If so, was she so employed immediately before the transfer so that her employment passed to Crown?
(4) If so, was her contract with Crown lawfully varied between the date of transfer and termination of the relationship in January 1994 such that it ceased to be a contract of service and became a contract for services?
In response, Mr Stuart accepts that it was unfortunate that the Tribunal did not resolve these questions. He points out that it was never argued before the Tribunal that Mrs Terris was not employed by Taylorplan; he stated that for the purposes of this appeal only Crown accepted that there may have been a relevant transfer, and he conceded that the historical nature of the relationship may be a relevant factor in determining the question of employment status at the termination date. Nevertheless, he submits that the critical focus must be on the position at termination. This the Industrial Tribunal did, reaching a conclusion which was open to it on the evidence, having properly applied the law.
In our judgment Mr Stuart was right to concede that the historical relationship between the parties may be a relevant factor in the overall consideration of the question of the nature of the contract. We observe that in both O'Kelly and Ahmet the arrangements had at all times been the same between the worker and Trusthouse Forte. There was therefore no question of a change in status. Here the arrangements were arguably different with Taylorplan and with Crown. It is for the tribunal of fact to determine and assess the effect of any such changes. In failing to do so we are satisfied that this Tribunal fell into error and failed to discharge its duty to give proper reasons for its decision under rule 10(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. The appeal is allowed.
Mr von Santen-Pagava addressed a further argument to us, based on perversity. We do not consider it necessary or desirable to rule on that aspect of the appeal, since to do so might in some way pre-empt the decision of the fresh Industrial Tribunal to whom we direct this matter should be remitted in view of our holding on the first ground of appeal. That Tribunal, in considering the matter afresh, should bear in mind the four questions earlier identified in this judgment in reaching its overall conclusion.