United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SINCLAIR Representative UCATT 58 Manchester Road Chorlton-cum-Hardy Manchester M21 9PH


 


JUDGE PETER CLARK: This is an appeal by Mr Page against a decision of the Manchester Industrial Tribunal sitting on 12 June 1996 that he was not employed by the Respondent under a contract of service, and that accordingly his claim for a redundancy payment must be dismissed. Extended reasons for that decision are dated 25 July 1996.

We should refer at the outset to the principles upon which this appeal tribunal will entertain an appeal against an Industrial Tribunal finding that an applicant is or is not an employee of the Respondent. It is set out in the Court of Appeal's judgment in O'Kelly v Trust House Forte [1983] IRLR 369. In essence, the question is one of fact for the Industrial Tribunal. The appellate courts will only interfere where the decision is found to be perverse, in the sense that no reasonable industry tribunal properly directing itself could reach the conclusion that it did, absent a patent self-misdirection in law.

In this case the Tribunal found that the Appellant worked for the Respondent, one of a group of companies in the construction industry, from June 1992 until January 1996. He is a joiner by trade.

Upon engagement by the Respondent he signed a form of contract which described him as a self-employed joiner. He paid tax under the sub-contractors' 714/715 scheme. However, the Tribunal correctly took the view that it must look behind the label which the parties attached to their relationship in order to ascertain the true nature of that relationship.

The Tribunal's material findings of fact are set out at paragraphs 8 to 11 of the reasons:

"8. We find that the applicant solely worked on a price basis, i.e. what he did he got paid for at a particular rate.

9. He did not obtain payment on any other basis. He did not receive holiday pay, sick pay and came under no holiday stamps scheme."

In evidence, the Applicant told the Tribunal that he was told what to do rather than how to do it. The Tribunal also found that the Appellant employed an accountant to maximise the benefits of the tax regime under which he worked and that he claimed expenses against tax in running his business as a joiner and builder. He provided his own working tools.

Weighing up all the factors, the Tribunal concluded that this was, indeed, a contract for services and not a contract of service.

In this appeal Mr Sinclair argues that the decision was perverse. He submits that the use of the 714/715 scheme is irrelevant to the central question. He relies upon the cases of Lee v 1. Chung and 2. Shun Shing Construction & Engineering Co Ltd [1990] IRLR 236 (Privy Council) and Lane v Shire Roofing Company (Oxford) Ltd [1995] IRLR 493 (Court of Appeal) in support of the proposition that this is a case of perversity.

He points out that although the Appellant provided his own personal tools, plant and equipment on site was provided by the Respondent.

He says that taken in the round it cannot be said that the Appellant was in business on his own account. He was paid on a job price basis, but it was the Respondent which ran the risk of profit and loss, not the Appellant.

We have considered these points and the authorities to which he has referred. However, we have reached the conclusion that this appeal does not raise an arguable case of perversity nor can we discern any material misdirection by the Industrial Tribunal in its reasons. Accordingly, the appeal must be dismissed at this preliminary hearing stage.