United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D WARD (Representative) Citizens Advice Bureau Training Centre Building Dugland Drummond Street Portsmouth PO1 2BB
For the Respondents	MS J EADY (of Counsel) Charles Russell Solicitors 8-10 New Fetter Lane London EC4A 1RS


 


JUDGE PETER CLARK: The question in this appeal, brought by Mrs Ritchie, the Applicant before the Southampton Industrial Tribunal against that Tribunal's decision with Extended Reasons dated 29 May 1997, is whether the Tribunal erred in law in finding that she was not employed by the sole remaining Respondent to this appeal, Building and Property Facilities Management Ltd (BPFM) under a contract of service between at the latest September 1993 and 10 May 1996 so as to found the Tribunal's jurisdiction to consider her various claims brought against that Respondent.

The Facts

The Appellant was on the books of Manpower plc, an employment agency, and Manpower placed her with BPFM's predecessor, then the Department of Environment Property Services Agency, on 16 September 1992 as a telephonist at Brunel House, Portsmouth. A position in the administration office at Brunel House then became available and she was interviewed by the Accommodation Manager and became part of the administration office in late 1992.

From time to time thereafter she covered for her Manager, Mrs Porter, and when Mrs Porter retired in September 1993 she was given the position of Administration Manager in place of Mrs Porter by her then Manager, Mr Balderston. At about that time the Property Services Agency was privatised and became BPFM.

The Appellant continued in that position and then on 31 March 1996 the main occupier of the building in which she worked, the Inland Revenue, left and the Ministry of Defence took over. The MOD used BPFM for the management of other buildings in Portsmouth, but used a different division of BPFM from that in which the Appellant was then working. The new division of BPFM, the Works Service Management team (WSM) took over the running of Brunel House from 1 April 1996. They discussed with the Appellant whether she would agree to change from Manpower Plc to another agency, Alfred Marks, now Adecco UK Ltd.

The WSM division of BPFM did not want to use Manpower as the provider of the Appellant as a contract worker and that is why they asked her to change to Alfred Marks. She agreed and from then on was paid by Alfred Marks. Until that point, during the whole of her time working at Brunel House, she had been paid subject to the deduction of PAYE and National Insurance by Manpower.

At that stage Mr Jasper, the Contract Manager of BPFM, told the Appellant that he wanted to make a permanent appointment and sent the form HR1 to his head office for approval to make provision for a permanent post. There was some dispute before the Industrial Tribunal as to whether the Appellant was actually interviewed for the new post. She was certainly seen by Mr Jasper and she saw another person, Mr Sydenham on 2 May 1996.

Mr Jasper wrote to the Appellant by letter of 4 May indicating that she had been unsuccessful in her application for the position of Facilities Administrator at Brunel House and suggested in reply that she should leave Brunel House immediately, which she did. On 13 May she was paid by Alfred Marks up to 24 May but her last working day was, in fact, 3 May 1996 because she had been on holiday. Those are the outline facts as found by the Industrial Tribunal.

The Industrial Tribunal Proceedings

On 21 May 1996 the Appellant presented her Originating Application to the Industrial Tribunal claiming breach of contract, unfair dismissal, pay in lieu of notice, and a claim that no written reasons for dismissal had been given, against BPFM only as her employer.

By a letter dated 24 June 1996 BPFM responded by contending that the Appellant had never been employed by them, but had been assigned to them by Manpower Employment Agency from September 1992 until 31 March 1996 and via the Alfred Marks agency from 1 April to 24 May 1996.

Manpower and Alfred Marks were then joined by the Industrial Tribunal as second and third Respondents respectively. Manpower averred that the Appellant was employed by them under a contract of employment from 13 August 1992 until she resigned from that employment in about March 1996. Alfred Marks (Adecco UK Ltd) contended that she was engaged by them under a contract for services from 2 April until 3 May 1996. She was never employed by them but in any event had not completed two years continuous service if she was an employee.

The Industrial Tribunal Findings

The Tribunal was superficially attracted to the argument advanced on behalf of the Appellant that she was an employee of BPFM; she was integrated into BPFM's workforce. She was promoted twice, on the second occasion in September 1993 to supervisor in the Administration Department. There, she was in charge of other staff. She was treated as an employee. She was given instructions by BPFM management and negotiated with clients on their behalf. From that date she could easily be regarded as an employee of BPFM.

However, having looked carefully at the Manpower booklet which formed the basis of the contract which she entered into with Manpower; the Tribunal found that that contract had all the indicia of a contract of employment. Based on the Applicant's own evidence as well as that document, the Tribunal concluded that she was employed by Manpower, not BPFM, and was not dismissed when that employment with Manpower ceased.

The Appeal

Mr Ward, in advancing this appeal, starts and ends with the premise that in September 1993, as a result of an oral agreement reached between the Appellant and her then Manager, Mr Balderstone of the Respondent's predecessors, Property Services Agency, she ceased to be employed by Manpower and become an employee of what is now BPFM. He submits that the Tribunal fell into error in rejecting that case and in finding that she remained employed by Manpower after that date.

He relies upon a passage in the Employment Appeal Tribunal decision in McMeechan v Secretary of State for Employment [1995] ICR 444, 451A, where Mummery J said:

"It seems to have been assumed by the tribunal, as it has been by some commentators, that the relevant authorities have laid down a general proposition of law that a worker whose services are supplied by an employment business to a third party client on a temporary basis does not have a contract of employment with the employment business or with the business's client. The cases do not establish that as a proposition of law."

He submits that here the contract of employment was with the client, BPFM, after September 1993 and Manpower's role then changed to being a payroll administrator for the purpose of paying the Appellant's salary.

In our judgment that argument simply fails on the facts. No application having been made for the Chairman's Notes of Evidence, they are not before us; however, we have the Appellant's written statement which was placed before the Industrial Tribunal, which does not contend that express oral agreement as to a change of employer was reached between herself and Mr Balderstone when she was interviewed for and appointed to the post of Administration Manager in September 1993. Nor is such an assertion made in terms in either of the two written submissions placed before the Industrial Tribunal on the directions of the Chairman following the oral hearing held on 7 February 1997.

There was no documentary evidence to support a change of employer after September 1993. In particular, no form HR1 was completed by BPFM. In fact, the documentary evidence went the other way, particularly the Manpower contract which, as the Tribunal found, had all the hallmarks of a contract of service.

This case, unlike the case of McMeechan did not raise an issue as to whether or not the Applicant was employed under a contract of service. That was always accepted. The only question was by whom was she employed? In our judgment, on the evidence before the Tribunal, it was perfectly entitled to conclude that she was, at all relevant times, employed by Manpower and at no time employed by the Respondent to this appeal.

Accordingly this appeal must be dismissed.