United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W J J KNIGHT (Accountant)


 


JUDGE D M LEVY QC: This is an appeal against a decision of an Industrial Tribunal held at London (North) on 11 November 1996. The issue which the Tribunal had to decide was whether or not Mr A.N. Robinson, the Applicant, was an employee of a Company which went into liquidation. If he was not an employee he was not entitled to redundancy payment. If he was an employee he would, or might have been, entitled to redundancy. The Tribunal decided he was not an employee, i.e. it then decided the issue in favour of the Secretary of State for the Department of Trade and Industry, who had made written submissions to the Tribunal. Mr Robinson appeared in person.

Against that decision, which was communicated to the parties on 26 November 1996, Mr Robinson has appealed and we have had the benefit today of Mr Knight, an Accountant, making submissions on his behalf. Mr Knight has made helpful submissions to us, albeit that they are not submissions that we have felt able to accept.

The basis of the Tribunal's decision, and they had to decide whether as a matter of fact and law, Mr Robinson was an employee or not, is found in paragraphs 3 and 12 of the Decision. It should be said that there were three shareholders in the Company; Mr Robinson, his father and another. Paragraph 3 reads as follows:

"In 1989 Mr Robinson senior ceased to play an active part in the company and from that moment on the Applicant and Mr Wilson between them were the sole controlling force of the company. Mr Wilson was the internal administrator and Company Secretary and Mr Robinson dealt with all the outside work essentially in a 'control' position until 1993 when the recession started to bite and the Applicant went back to the tools doing practical plastering."

And then at paragraph 12, having dealt with disagreements between those who controlled the Company, the decision reads:

"Nevertheless despite those disagreements the tribunal unanimously finds that the control of this company vested in two people Mr Wilson and Mr Robinson and that Mr Robinson senior played no controlling part in the company from 1989 onwards."

Paragraph 13 reads:

"It is that control of the company which in the end convinces us that the Applicant was not an employee.

Paragraph 14 reads:

"He held 30% of the shares as did Mr Wilson. They were the two controllers. If Mr Wilson had done something with which Mr Robinson disagreed Mr Robinson had sufficient share-power to have injuncted him for a usurpation of his power "

In his submissions before us today, Mr Knight has suggested that because he was only a 30% shareholder and one of three, Mr Robinson was not a controller. In our judgment however, that submission has been answered by the paragraphs of the decision which we have read.

Mr Knight has also asked us to look at some accounts of the Company of earlier years, but that was evidence which was not presented to the Tribunal and therefore, in accordance with the normal rules, we have felt unable to look at it.

We thought it right to draw Mr Knight's attention to a recent decision of this Tribunal, Buchan & Ivey v Secretary of State for Employment [1997] IRLR 80, where Mummery J, then the President, with colleagues, reviewed the cases on the meaning of "employee" and Mr Knight very correctly submitted to us that the facts of the two cases there were quite different from those here and therefore, the decision was not in point. Of course, what is in point in the decision is paragraph 33, where the President, for the benefit of others, under the headings Conclusions, Fact or Law, set out what happens on an appeal.

It might be helpful just to draw attention to subparagraphs 3 and 4 of what he said about an Appeal Tribunal:

"The jurisdiction of the appeal tribunal therefore depends on the nature of the specific question which the appellant (or cross-appealing respondent) proposes for decision on the appeal.

(a) The appeal tribunal may correct an explicit or implicit misdirection in the decision of the industrial tribunal on a point of law;

(b) Unless the decision of the industrial tribunal involves a misdirection on a point of law or is perverse, it may not differ from the tribunal in its decision on a disputed question of primary or inferred fact or reach a relevant conclusion on the overall evaluation of the relevant documentary and factual material and of the various factors relevant to determination of the issue.

(4) Although the triple categorisation of issues as 'fact' and 'law' and 'mixed fact and law' may not be 'very helpful in the context of the jurisdiction of the appeal tribunal', it is convenient for the purposes of ascertaining the limits of the appeal tribunal's jurisdiction to have those distinctions in mind. Those distinctions prevent the appeal tribunal from falling into the error of posing for its decision a single general composite question such as 'Is the applicant an employee?' in a case which may involve decisions on a number of questions of disputed primary fact, disputed construction of documents, statutes and disputed questions of fact and degree which involve the weighing and evaluation of a number of factors present in a situation. In the last case different tribunals may be legally entitled to reach different results. The tribunal must ask of each question which arises for its decision whether it is a pure fact or a pure law or a mixed question and only exercise its jurisdiction on those matters which fall within the realms of law."

We are satisfied that on the judgment, which we have considered below, there is no error of law. Certainly, the findings of fact as to control of the Company were not perverse. In the circumstances, despite Mr Knight's helpful submissions, we have to conclude this appeal presents no arguable case to go forward and we therefore dismiss it.