United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS T GILL (Of Counsel) Sylvester & Mackett Castle House Castle Street Trowbridge Wiltshire BA14 8AX
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a written decision of an Industrial Tribunal Chairman sitting alone, in which he held that the First Respondent to her complaint of unlawful discrimination on the grounds of her sex should be dismissed from the proceedings.

The background to this appeal may be shortly stated. On 27 November 1995 the Appellant presented her complaint naming a 'Mr P' as the Respondent. Her complaint arises out of the treatment she says she received at the hands of the Manager of the Public House where she was working in Trowbridge, Wiltshire, a 'Mr H'. The pub was a tied-house. When she commenced her employment in July 1995 there was a different tenant and manager, but the tenant fell out with the brewery to which the pub was tied, and on 31 August 1995 'P' took over the tenancy; became the licensee, and put in 'H' to run the pub on a daily basis subject to some supervision by 'P'. 'H' dismissed the Appellant on 20 September 1995. Some nine days later the License was transferred into the joint names of 'P' and 'H'. The latter left the pub at the end of November 1995.

For convenience we shall refer to 'Mr P' as the Licensee and 'Mr H' as the Manager. The Chairman made the following findings of fact:

"8 The applicant was never quite sure who her employer actually was, and I can well understand why. Nothing was ever put in writing; she was paid from the till without any written pay slips and it does not appear that any written terms and conditions of employment were given to her at any stage. No-one told her who her employer was to be; she assumed it was the Licensee [Mr P] because of the fact that he seemed to be in charge. She has not really been in a position, however, to mount any serious challenge to the evidence which the Licensee [Mr P] has given, which is effectively accepted by the Manager {Mr H], that the agreement between the two men was that the Manager [Mr H] ran the Public House as a self employed manager. He was paid on the basis of a fee and profit share and he had sole powers as to door policy, the employment of staff, the acquisition of equipment, catering, time off and other matters of that sort. Plainly, the Licensee [Mr P] supervised the running of the Public House and it appears he even helped out on one occasion by paying the applicant out of the till when the Manager [Mr H] was absent; but he was after all the licencee and he has an overall responsibility in law for seeing that the premises are properly conducted.

9 On the basis of what I have heard and the evidence which I have read I am satisfied on a balance of probabilities that in fact the Manager [Mr H] was the self employed manager of the Public House and that he was not an employee of the Licensee [Mr P]; and that it was he the Manager [Mr H] who was the applicant's employer during the period in which her various complaints of sex discrimination arose."

It seems to us that the Industrial Tribunal may well have fallen into error in their approach to the question largely, we think, because it did not have the benefit of full legal argument. There are a number of circumstances in which a complainant who is making a complaint of discrimination, may succeed against a person or entity other than the actual perpetrator of the unlawful act. In the first place the complainant may be a contract worker, who is entitled to recover in accordance with Section 9 of the Act. This section, or its equivalent in the Race Discrimination Act was considered by this court in the case of Remick & Others v Harrods Ltd & Others. It does not appear that the Industrial Tribunal had this section in mind or that decision. That is no criticism of the Industrial Tribunal because, as we have indicated, he did not have the benefit of legal argument presented on behalf of the Applicant, although it appears that the Licensee and perhaps the Manager, had the benefit of the services of a solicitor.

Second, an employer may be vicariously liable for the wrongs committed by his employees during the course of their employment, Sections 41 and 42 of the Act apply. It is to be noted as the Industrial Tribunal noted, that employment is given a broader definition in the discrimination legislation than in the unfair dismissal legislation. Section 82 of the Act defines employment in terms which are apt to cover a person who is working under a contract for services. Although mentioned in the decision of the Industrial Tribunal it does not seem to us, with respect, that the learned Chairman carried that definition section into effect in arriving at his conclusion. Furthermore, a principal may be liable for the acts done by his agent.

It seems to us also that the possibility that the Licensee and Manager were running the business in partnership and therefore were jointly the employers of the Applicant, was also not considered by the Industrial Tribunal. Furthermore, it seems to us, that in arriving at any conclusion in relation to public house premises of this kind, the Tribunal should bear in mind the statutory responsibilities which are placed upon the holders of the licence. It is the responsibility, enforced by criminal law, on the holder of the licence for such matters as ensuring that the persons employed in the bar are not under age. There are other provisions of the licensing legislation which will be pertinent to the issue as to whether the Applicant was in fact employed by the license holder rather than by the Manager. It does not appear to us that those matters either were expressly drawn to the Tribunal's attention.

In support of the appeal Ms Gill has appeared on behalf of the Applicant. As is their right, the Respondents have not themselves appeared before us; and we only have a short Skeleton Argument presented on their behalf. As recently as Monday of this week, Ms Gill informed the Respondents that she would wish to pursue before us an argument based on Section 9 of the Act, that is the Contract Workers section, and as we understand it, there has been no response received from the Respondents since that communication. It also seems to us in this case that it might have been better had the Industrial Tribunal not taken the question of the employment relationship as a preliminary issue. This is an issue which requires very careful consideration of the factual evidence, having regard to the background to which I have referred. It seems to us that this issue should properly be debated at the same time as they adjudicate on the substance of the case.

We recognise the reason why the Chairman would have wished to have dealt with this as a preliminary issue, but it does seem to us that it, in the circumstances, has led to an unsatisfactory conclusion. We are not prepared in this judgment in allowing this appeal to give the Industrial Tribunal any clue or hint as to how we think this issue should be determined by them. That seems to us to be a matter which will require proper investigation and proper analysis once the relevant sections of the Act have been properly considered.

Accordingly, we allow the appeal with a very strong indication given to the Industrial Tribunal, that the whole of this case should be heard and determined as soon as possible, and during the course of their determination, a newly constituted Tribunal will wish to consider whether, if there is liability, such liability attaches to the Manager or the Licensee or to both of them. In those circumstances we allow the appeal. We do not consider that the Industrial Tribunal has properly considered the issues which are raised in this somewhat difficult case. We are grateful to Ms Gill for appearing before us today.