United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J KARTER IN PERSON


 


THE HONOURABLE JUSTICE LINDSEY (PRESIDENT): We have before us as a preliminary hearing, the appeal of John Karter in the matter Karter v Times Newspapers Limited. Mr Karter was the Racing Correspondent of the Sunday Times. He lodged an Industrial Tribunal form 1 an "IT1" on the 9^th October 1998, claiming unfair dismissal and redundancy.

1. His form IT1 said "I was employed by the Sunday Times on 1^st May 1998 to be their racing correspondent. I was employed on a yearly contract, ostensibly on a freelance basis. However, this contract rolled on for eight and a half years and I was, to all intents and purposes, treated as a member of staff". A little later he continues:- "In my case against the Sunday Times for unfair dismissal/redundancy, I will show that although my contract with them was nominally a freelance/self employed contract, there are many factors that prove I was, in fact, treated as and worked as a de facto employee of the company during the eight and a half years of my employment with them".
2. The Respondent, Times Newspapers Limited, took up that point in their IT3. What they said was that "The Applicant was engaged to provide services for the Sunday Times as a freelance journalist under the terms of a self-employed fixed term contract. The terms of the contract required him to undertake certain work for the Sunday Times". Then later, they said "The Applicant was not and never has been a permanent employee and therefore the Tribunal has no jurisdiction to hear his claim".
3. Obviously, that indicated an issue of law on the nature of Mr Karter's employment and a preliminary issue was arranged and was heard by a Tribunal of 3 on the 14^th December 1998 under the chairmanship of Mr Peters at London South. The unanimous decision of the Tribunal was:

(i) the correct Respondent is Times Newspapers Ltd and the title to the proceedings is amended accordingly;

(ii) the Applicant was not an employee (as defined in section 230 the Employment Rights Act 1996) of the Respondent;

(iii) Accordingly the originating application is dismissed.

4. A Notice of Appeal was received from Mr Karter on 26^th May of this year (and that is before us) and this morning Mr Karter has handed us a 2 page document headed "EAT Statement" which amplifies to some extent the matters raised in the notice of appeal and represents, in effect, the argument that he has put in front of us today. He does not orally add to that, so that is the argument before us.
5. The Tribunal, directed themselves on the law by reference to a number of leading cases and, having those cases in mind, it held that:-

"the appropriate approach to determining employment status is to consider a multiple approach looking at the totality of factors"

It cannot be said that that is a wrong approach in law:

6. The Tribunal set out with, as it seems to us, admirable clarity, at the facts that they found, as to the difference, in practice, between their respective positions of those under contract of service with the Respondent, Times Newspapers Limited - namely staff journalists - and its freelance workers. They set out under a number of bullet points, they are called, as factors to be taken into account in implementation of the "multiple approach" which they had said was correct.
7. Leaving aside the form of Mr Karter's contract, what they said was this;

"the Tribunal concluded that in that situation the Applicant was indistinguishable from an employee of the Respondent"

but then they added in a recognition of the shape of the contract between Mr Karter and the Respondent. They were plainly right to take that into account. They then considered what they call "the whole picture" and, when they did that, concluded as follows:

The Tribunal then considered the whole picture, considering all the individual factors referred to in paragraph 19 above, the submissions of the parties, the contractual position and how the relationship operated in practice. The Tribunal concluded that the issue was finally balanced but that on balance the Applicant was not an employee but worked for the Respondent under a freelance contract to provide journalistic services.

In those circumstances the Applicant was not an employee for the purposes of the unfair dismissal legislation and his Originating Application should be dismissed

8. So Mr Karter lost, but not by a great margin. Bearing in mind his occupation, it might be described as losing by a length.
9. His notice of appeal is succinct but what it says in its paragraph 6 is this:

"The grounds upon which this appeal is brought are that the Employment Tribunal erred in law in that:

(i) at paragraph 19 of its decision, the Employment Tribunal listed factors separately which, in truth, overlapped with each other and/or duplicated each other;

(ii) The Employment Tribunal placed too much weight on the intention of the parties as expressed in the written agreement between them;

(iii) The Employment Tribunal failed to apply the appropriate weighting to the factors on which it founded its decision; and

(iv) The Employment Tribunal failed to take into account the Appellant's submissions that the nature of the relationship as his employer had changed over time and, in particular, failed to the address the question of whether or not the written contract ceased to reflect the true nature of the relationship".

10. Where, as here, a problem requires for its solution due consideration of a whole number of factors, where none of those factors is in itself determinative, the weight to be given to each factor in respect of which evidence is given is essentially a matter for the Employment Tribunal itself. Here, it is impossible to say (and, subject to one point it is not said) that the Tribunal took into account that which should have been left out of account or that they failed to take into account that which should have been taken into account. Nor is it said that there was no evidence to support any of their particular findings.
11. There is, in our view, no error of law identified in the grounds that we have described, by reference to the Notice of Appeal, as (ii) and (iii). As to (i) the fact that a number of listed features overlap is merely to say that some relevant considerations are not clear cut, or, so to speak, hard edged. It represents no error of law on the Tribunal's part but merely points to the difficulty that is inherent in the task which the Tribunal had. That leaves (iv) which does assert that something material was left out of account.
12. However, the Tribunal plainly refer to a number of features as they existed from time to time over the years during which Mr Karter was the racing correspondent. The Tribunal thus referred to the contract at its inception in March 1990. They refer to annual renewals down to the 1^st May 1998, when the renewal was only for six months, and they refer to general increases from time to time in the annual fee. They refer to a reduction of the fee in May 1998, they refer to an incident in 1994 and one in 1995 when Mr Karter asked that he should be a staff journalist. They refer to a period in 1994 when he asked to attend at the Respondent's premises. They refer to a discussion in April 1998 and to one in September 1998. There is, in our view, no foundation for an argument and that the Tribunal did not have in mind the possibility of changes in the relationship between employer and employee over time.
13. As for whether the written contract ceased to reflect the true nature of the relationship, the Tribunal's conclusion was based, as we have already quoted, on what they described as the whole picture. It was, in our view, right that they should take into account a whole number of factors and, moreover, take them into account in the way that they did. In his statement handed in this morning Mr Karter rightly refers us to Young & Woods Ltd v West (1980) in the Court of Appeal where it was said that the label which parties choose to use to describe their relationship cannot alter or decide their true relationship although, in deciding what that relationship is, the expression by them of their true intention is relevant but not conclusive. That, it seems to us, is exactly the attitude which the Tribunal here adopted. They had before them a whole number of features; none was regarded in itself as determinative but when the "whole picture" was looked at they held that Mr Karter was not employee for the purposes of the unfair dismissal legislation.
14. We have been unable to detect any error of law in the Tribunal's decision and it is, of course, only errors of law that fall to us for decision at such a hearing as this. Indeed, on the contrary, the decision, in this difficult area of the law, seems to us to be a model of its kind. Looking, therefore, to find some arguable error of law, we are not able to find one and we must dismiss the appeal even at this preliminary stage.