United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


JUDGE C SMITH: This is an appeal by Mr Blanchard, the Applicant before the Employment Tribunal, for leave to proceed to a full hearing of an appeal against the decision of the Tribunal at Liverpool, on 3 August 1998, of which extended reasons were sent to the parties on 18 August 1998. The Tribunal held unanimously that the Applicant was not an employee of the first Respondents, Gemini Glass Ltd, so that they were not liable to him for a statutory redundancy payment and the second Respondents, The Secretary of State for Trade & Industry, were not liable in respect of debts owed to the Applicant by the first Respondents.

As is clear from paragraph 7 of the decision, the Tribunal correctly stated the issue which it had to determine, namely whether the Applicant was or was not an employee of the first Respondents, which the second Respondents denied.

Before we come to consider the grounds of appeal we should state we bear in mind the Applicant only has to show an arguable ground to be allowed to proceed to a full appeal and we will deal with his grounds of appeal more specifically later on. First of all it is helpful to summarise the main parts of the Tribunal's decision. The Tribunal correctly, as it appears to us, stated in paragraph 8 that in some cases, of which the present was one, it was very difficult for a Tribunal to decide whether a person was or was not an employee. That is the effect, really, of what they are saying. They point out there that although efforts have been made to provide a definitive test of employment status that has been made very difficult because of the variety of employments and the nature of employment relationships.

The Tribunal then noted, in paragraph 9, that directors of limited companies can also be employees, so the Tribunal took the view that it was necessary for them to consider and evaluate all relevant factors which pointed either for or against an employment relationship or were neutral so that they could then ask themselves, as the triers of fact, what was the reality of the situation at the end of the day. That all appears from paragraph 9 of their decision.

The Tribunal then listed the various factors in paragraphs 10, 11 and 12. In Paragraph 10 were those which pointed towards employer-employee relationship, in 11 were those which pointed towards self-employment and against an employer-employee relationship and in 12 were the factors which were neutral.

In paragraphs 13 and 15 they refer themselves to the case law cited to them by the second Respondents and, in our judgment, correctly summarised its legal effect. It is noteworthy that they expressed the view (at paragraph 12(b)) that the fact that the Applicant was one of two directors and owned 50% of the issued share capital was a neutral factor. So that indicated that they understood the current state of those authorities which they cited, particularly in paragraph 13.

They also particularly noted, in paragraph 15, the cases of Wilson v Trenton and McLean v Secretary of State for Employment where, in both cases, it was held that despite the fact that the Applicant in those cases was paying both PAYE and class 1 National Insurance contributions, neither Applicant qualified as an employee. So they had to take those cases into account, which they did. They then expressed their conclusion in paragraph 14. - We do not think it is necessary to set it out but should the matter go further then, of course, paragraph 14 would be incorporated in our judgment.

It is against that approach and those findings that we return to the matters contained in the Notice of Appeal as very helpfully set out in the Applicant's letter dated 14 September 1998. The Applicant, understandably, lays emphasis on the fact that he paid tax and PAYE and class 1 National Insurance contributions, that he was a "hands-on" person who worked for a weekly wage and it was just common sense, in his submission to us, and economic reality for him to reduce his wage - which was a factor the Tribunal had taken into account - when the first Respondents got into difficulty. He strongly expresses his view that he is entitled to be categorised as an employee so he can make a limited recovery from the state.

Whilst we have considerable sympathy for the points well made by the Applicant in his letter we must state that we can only interfere with the decision of an Employment Tribunal on a matter such as this if there is either an error of law or a finding of fact which no reasonable Tribunal could have arrived at, putting the matter simply. Here, in our judgment, the Employment Tribunal correctly set out the law, correctly applied the law and were entitled to reach the unanimous conclusion they did in the manner in which they did. What, in reality, the Applicant is, understandably, attempting to do is to ask us to reconsider the matter which we have no jurisdiction to do where the Employment Tribunal has correctly applied the law and reached reasonable conclusions of fact.

Accordingly, for those reasons, this application must be dismissed.