United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR I GATT (ELAAS)


 


LORD JOHNSTON: This is the judgment of the tribunal in the case of Mr David Turvey against London Brent Ltd trading as Staff Link and the Secretary of State for Trade and Industry. The background to this matter is a decision by the Industrial Tribunal that the appellant, who was a director of the company in question which went into liquidation, was not an employee and therefore that the tribunal had no jurisdiction to entertain questions of redundancy.

Before us Mr Gatt sought to argue that the tribunal had misdirected itself in respect that it had relied upon, amongst other factors, the issue of control with regard to the position of Mr Turvey within the company as being relevant to the question of whether or not he was an employee. He referred us to the recent case of Buchan v Secretary of State for Employment [1997] IRLR 80 which we recognise is at the moment under some review in this jurisdiction and has recently been considered with some disapproval in the Court of Appeal in Scotland in the case of Fleming v Secretary of State for Employment.

In order to appear to be consistent, we should indicate that we have recently allowed leave in a case of a very similar position, but the difference between these two cases is that in the latter, that of Mr Brook and Mrs Hill, control was the only issue that appeared to be relied upon and there are obvious questions as to whether or that could be tainted by certain aspects of the decision of Buchan, hence we allowed leave.

In this case it is apparent that the tribunal applied its mind to a number of questions which are listed in its decision in reaching its conclusion, of which control was only one; and whatever may be the status of Buchan as a matter of law, what is indisputable in this area of law is that firstly control must be an element in the equation to be determining of the issue; and secondly, that in most circumstances, the question of employment status is an issue of fact. In this case, we are satisfied that the tribunal directed itself to sufficient facts to base its decision and that therefore this case does not focus any issue of law for determination by this appeal tribunal. This appeal will be refused.