United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON


 


JUDGE C SMITH QC: This is an application by the Respondent before the Industrial Tribunal, Mr G Miles, trading as Crown Recruitment, for leave to proceed to a full hearing of an appeal which he makes against the decision of an Industrial Tribunal held at Stratford on 8 July 1997 when the Industrial Tribunal held that the Applicant before them, Mr W E Webb, was entitled to a redundancy payment from the Respondent, G Miles trading as Crown Recruitment, on the basis that he was an employee of Crown Recruitment.

We have had the benefit today of hearing a very courteous submission from Mr Miles and we have taken into account everything that he has said in his letter of 22 January 1998 to us and in his notice of appeal. Put shortly, it is really Mr Miles' case that since Mr Webb was at all times on the books of the employment agency and taken on as a temporary worker, in those circumstances it cannot have been right as a matter of law for the Industrial Tribunal to have concluded that he was an employee of Crown Recruitment under a contract of service. Mr Miles has pointed out to us that he received quite a lot of advice over time from various responsible bodies which have led him to that conclusion. Unfortunately, from Mr Miles' point of view, whether or not someone is an employee so as to be entitled to protection under the Employment Protection legislation is a very difficult question and it gets even more difficult when one has a tripartite situation where there is a worker, sometimes called a contractor, there is an employment agency and there is a third party company. There are sometimes then terms which amount to terms of general engagement, there are sometimes a series of specific engagements and it becomes a very complicated matter for the industrial tribunal to unravel the situation in any given case and to decide one way or the other on an individual case which side of the line a particular applicant falls. That is the predicament which Mr Miles is in in relation to this particular appeal, as we have explained to him.

It is against that background that we, of course, have to look at the decision in this particular case of the Industrial Tribunal in order to decide whether there is any arguable point of law, any legal flaw in the reasoning of the Tribunal which could give rise to a point that should be taken on a full appeal.

From the facts as found by the Industrial Tribunal in paragraphs 1 to 7 of their extended reasons, it appears that the Applicant, Mr Webb, started work at Ford Motor Company in 1986, having been placed there, of course, by the Respondents and worked there for just over 10 years without a break until Ford notified him that his services were no longer required. At paragraphs 5 and 6 of the decision, the Industrial Tribunal set out the provisions contained in the time sheets which Mr Webb received from Crown Recruitment and which he was required to complete and to have counter-signed by Ford. The Industrial Tribunal noted that the time sheets included a clause which was in these terms:

"All temporaries supplied are our employees unless otherwise stated in writing. We deduct Income Tax and National Insurance Contributions from their remuneration and account to the Inland Revenue for these deductions."

The Industrial Tribunal found as a fact that it was Mr Webb's understanding that he would be working for Crown Recruitment and not for the Ford Motor Company. The Industrial Tribunal also found that the time sheet contained a further provision:

"No payment will be made without a signed time sheet.

The employee hereby agrees that he/she will not accept through any other agency temporary work with any person or firm the introduction to whom has been effected by Crown Recruitment."

The Industrial Tribunal found that the pay advices which were issued by Crown Recruitment to Mr Webb recorded the hours worked and the rate of pay applicable to those hours and that the advices showed the gross pay and made appropriate deductions for tax and national insurance. The Industrial Tribunal noted as a factor that would, of course, argue against employment that Mr Webb understood and accepted that he would not be paid for time taken as holiday nor did he expect to receive sick pay.

It was in those circumstances that the Industrial Tribunal, having set out those facts which, of course, we have only summarized and reference should be made to the relevant paragraphs for a full consideration of the facts found by the Industrial Tribunal, and having noted carefully Mr Miles' submission to the Industrial Tribunal, which is noted at the end of paragraph 7, namely, his understanding that:

"... the term 'temporary' meant that workers were engaged on an hourly basis and were subject to termination at a moments notice"

and noting that Mr Miles had sought assistance from the Department of Employment, went on to consider the applicable law and reach their conclusion.

The Industrial Tribunal considered the recent case in the Court of Appeal of McMeechan v Secretary of State for Employment [1997] ICR 549. They took the view which, in our judgment, they were entitled to take, although Mr Miles certainly submitted that they should not have taken, that although there were some differences of fact that the decision in that case applied, a fortiori, as they put it, using that expression, in other words to mean that if the facts in that case gave rise to a position whereby Mr McMeechan was to be regarded as an employee, then it followed that the stronger facts, as the Industrial Tribunal were implying were present in this particular case and the case they were considering, would cause them to reach the same conclusion.

They cited the whole of the headnote in McMeechan, in particular the words of the Court of Appeal that:

"whether the individual engagement in respect of which the applicant's claim was made amounted to a contract of service, though essentially a question of fact and degree, largely fell to be determined on the interpretation of the conditions of service in the context of the specific engagement;"

That is the heart of the decision in McMeechan and they quoted that in paragraph 8.

They then went on to make their relevant findings in paragraph 9 of the extended reasons, namely, that Mr Webb was engaged by Crown Recruitment and paid by them, treated as an employee under a contract of service for tax and national insurance purposes and they reiterated the point that they had already noted as a finding of fact that it was stated to Ford's that Mr Webb was an employee of Crown Recruitment and there was no term or condition, according to the findings of the Industrial Tribunal, in his arrangements with Crown Recruitment to a different effect. They then concluded in these terms:

"Guided by the decision referred to above, we are satisfied that Mr Webb was an employee of Crown Recruitment. he was engaged by them, albeit to work at Ford Motor Company, he was at all times treated as being their employee and, indeed, they imposed upon him a restriction, the effect of which would be to prevent him for working at Fords for any other agency."

For those reasons, having rejected any possible argument that Crown Recruitment were acting as agents for Fords, they concluded that he was an employee and was, accordingly, entitled to a redundancy payment.

In our judgment this case really illustrates that this is not a straightforward or black-and-white area of the law at all and that at the end of the day each case must be decided in relation to its individual circumstances and it is for the Industrial Tribunal to weigh up the relevant factors and make their evaluation as a question of fact as to whether or not the Applicant before them is an employee. That is precisely what the Industrial Tribunal did in this particular case and although we have a degree of sympathy for the Applicant, we cannot go behind the decision of the Industrial Tribunal, which seems to us to be a decision in which they correctly interpreted and followed the leading authority and found facts which they were entitled to find and, accordingly, reached conclusions which they were entitled to reach, and for that reason this application will have to be dismissed.