United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N BERRY (of Counsel) Procaccini Farrell & Co 213A Clapham Road London SW9 OQH


 


JUDGE PETER CLARK: On 2 November 1996 Mr Vallone presented a complaint to the Central Office of Industrial Tribunals. He did not specify the nature of his claim, but we understand it to be one of unfair dismissal. He worked for the Respondent as a wine waiter at their Grosvenor House Hotel in Park Lane, London. He gave as his dates of employment 17 November 1994 until 28 March 1996.

Two preliminary points arise on the face of the Originating Application. The first is that he, on his own case, did not appear to have completed two years' service. The second is that his complaint was presented outside the primary three month limitation period.

By its Notice of Appearance the Respondent took both those points, and in addition contended that he was not their employee.

Two of those preliminary points came on for hearing before the London (North) Industrial Tribunal sitting on 7 March 1997, namely, whether the Appellant was employed under a contract of service and whether the complaint was time-barred.

The Tribunal, in a decision with Extended Reasons dated 4 April 1997, decided both points in favour of the Respondent. They found that as a casual waiter the arrangement between the parties whereby the Appellant was called up for work when needed, lacked the necessary mutuality of obligation to constitute a contract of service. As to the limitation point, they found that even if he was an employee, that employment ceased at the latest on 28 March 1996, as the Appellant had pleaded, and in the absence of any explanation for the delay in presenting his complaint, it was time-barred.

In this appeal Mr Berry, now instructed on behalf of the Appellant, challenges both findings. We shall deal first with the employment issue.

He recognises the difficulty which he faces in distinguishing the Court of Appeal decision in O'Kelly v Trusthouse Forte Plc [1984] 1QB 90. That case involved the employment status of casual catering staff at the same hotel working for this Respondent. They were held not to be employed under contracts of service, a finding which was ultimately upheld in the Court of Appeal.

This Appellant was issued with a document headed "Particulars of Employment" which provided at Clause 4:

"You have no basic hours of work as the company enters into no obligation to provide you with work. Nor are you obliged to keep yourself available for work or to agree to attend work on any occasion that the company may request your services."

However, Mr Berry points to the Tribunal's finding in paragraph 3 of the Reasons that:

"... there was some control over the matter by the Respondents in that the casuals were clearly expected to do a certain amount of work each week for the Respondents if called upon and that a failure by a casual to accept work for a period of time would cause the Respondents to remove that casual from the register."

He submits that it follows that there was an obligation on the Appellant to work when asked to do so, otherwise he would be removed from the casuals list.

In our judgment, looking at the Tribunal's Reasons as a whole, that was a matter taken into account by the Industrial Tribunal in reaching its conclusion that there was no mutuality of obligation. However, in our view it is not a distinguishing feature when compared with the facts in O'Kelly to which we have been taken by Mr Berry, to allow us to interfere with the decision on appeal. We remind ourselves of the principle in O'Kelly that the question as to whether or not a person is employed under a contract of service or a contract for services is essentially a question of fact for the Industrial Tribunal and in the absence of a material misdirection in law, or an argument that the decision was otherwise perverse, we have no power to interfere with the Tribunal's decision.

In these circumstances, we have reached the conclusion that this appeal raises no arguable point of law in relation to the employment issue. It therefore follows that it is unnecessary for us to consider whether or not the Tribunal fell into error in determining the effective date of termination in this case. In the absence of a contract of employment the question of dismissal becomes academic.

Accordingly, at this preliminary hearing stage we must dismiss this appeal.