United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R POWELL (of Counsel) Messrs Dibb Lupton Alsop Solicitors Windsor House Temple Row Birmingham B2 5LF


 


JUDGE HAROLD WILSON: This is a preliminary hearing concerning an appeal by the appellant Company against a decision of the Employment Tribunal which found, on a preliminary issue, that Mr Gow was an employee with continuity of employment which enabled him to bring a claim for unfair dismissal against the appellant Company. It is purely the preliminary point which was before the tribunal and which is before us.

Mr Gow conducted his own case before the Employment Tribunal. The Company chose not to be represented. The Company had put in submissions and did not call any evidence. Their submissions covered the point that Mr Gow was not an employee. It was open to them to have supported that contention with the evidence which Mr Powell, on their behalf today, asks us to take into account to show that the tribunal either came to a perverse conclusion or erred in law.

Whether or not a person is an employee is a question of fact, that is reiterated in one of Mr Powell's own cases Fleming v Secretary of State for Trade and Industry [1997] IRLR 682, and the tribunal therefore has to come to a conclusion on the facts which are placed before it. There is a limit to the intervention that a tribunal can make in the process of hearing a case because the system is adversarial and the tribunal has to hold a careful balance between ensuring that justice is done to both parties and appearing to be partial to one or the other. So far as employers are concerned, they are invariably in a far more powerful position - certainly a stronger financial position - than applicants and that appears to have been the case here.

There was every reason therefore why the Company should realise the crucial importance to them as well as to Mr Gow of the preliminary issue and to have accorded it the respect it required which was to be represented before the tribunal as they have been before us. Had they been so, no doubt all the matters which have been put before us would have been put before the tribunal. None of the factors raised, however, is crucial. They were there to be raised before the Employment Tribunal. Even had they been so, the tribunal might have come to the same conclusion to which it came in any event.

When we turn to the Extended Reasons given by the tribunal we have in mind that by choice of the appellant Company the only evidence before the tribunal was from Mr Gow. Paragraph 3 summarises the evidence in so far as his position, as he claimed it to be as an employee, was concerned. The tribunal applied the law to the facts that they found and to the submissions made by both parties, and had to consider whether in bringing his claim for unfair dismissal Mr Gow's continuity of service, and indeed whether or not he was employee, was transferred. The tribunal summarise their findings in the final paragraph:

"8 The issue is whether or not there was an oral contract as there was no written evidence of a contract to put the applicant in the status of an employee with his previous company i.e. the one that was taken over by Powergrade. On the basis of the evidence that we have heard, which was that he worked solely for that company, applied all of his daytime duties and obligation to that company, received payment on a net basis was paid on a PAYE basis, we have to conclude on the evidence presented to us today that he was an employee. Directors can be employees of a company, providing they satisfy those sort of requirements and we find that on the basis of the evidence he was an employee for the purpose of this preliminary hearing ..."

We can find no evidence of any misdirection or of any failure or omission in the conduct of the proceedings, neither can we find that the decision was perverse. It seems to us that it was and remains a finding which was open to the tribunal. Accordingly, there is no reasonable prospect of success for this appeal if it goes to a full hearing and it is accordingly dismissed.

Leave to appeal to the Court of Appeal refused.

We wish to make clear as part of this judgment that we have had regard to the authority to which Mr Powell drew our attention, that is to say Secretary of State for Trade and Industry v Bottrill (The Times - Law Report February 24 1999), but while we have had regard to that judgment, we note that it was not available, and had not been delivered of course, at the time of the proceedings with which we have been concerned.