United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR UNWIN (Representative)
For the Respondent	THE RESPONDENT IN PERSON


 


JUDGE HICKS QC:

1. Mr Colin Brierley, over a number of years, served the appellants (who may be compendiously called, the Gorton and Openshaw Trades and Labour Halls, although in fact they existed successively as two distinct legal entities) by acting as deputy steward or covering for the steward, until he was dismissed in circumstances which, as is common ground between parties, entitled him to a redundancy payment.
2. The issue between Mr Brierley and his latest employers, Gorton and Openshaw Trades and Labour Halls (1994) Ltd, is whether that employment had been continuous since he started performing those services in May 1987 or had been interrupted so that his period of continuous employment, which significantly affected his redundancy payment, only started as the appellant alleged in May 1994.
3. In its Notice of Appearance to the Mr Brierley's application, the appellant took the point that the present company was not incorporated until 1994 but that point has, as we understand it, disappeared from the scene as being a ground of opposition to Mr Brierley's claim. It is clear that the present company took over without any interruption the operation of the club from a previous entity, the precise nature of which is not actually made at all clear. It may have been a friendly society or it may, as Mr Brierley describes it in one of his documents, have been a limited company. However that may be, that change is now not relied upon by the appellant as breaking the employment.
4. What is relied upon is the fact that for a period Mr Brierley was not, so far as the appellant's documents show, treated as an employee in terms of tax or National Insurance returns. There was evidence before the Employment Tribunal from Mr Brierley himself, who has of course direct knowledge of the situation throughout. There was comparatively little, as we understand it, if any, direct oral evidence from other witnesses who could tell the tribunal what precisely was happening. Some further documentation has been admitted before us in the way of letters signed by persons speaking of their recollection. But none of those recollections, long after the event and with the issues already joined between the parties and indeed decided by the Employment Tribunal, can weigh, in our judgment, at all heavily in helping us to decide the only issue which is before us, which is whether the Employment Tribunal erred in law in the conclusion which they reached.
5. Before us the evidence, in the sense of the documentary evidence, had been explored at some considerable length. Although it is not for us to find the facts, it perhaps helps to set the scene against which the Employment Tribunal had to reach its decision, to rehearse quite briefly what those documents show, because in the case of the contemporaneous records they were all before the tribunal.
6. It is not in dispute that Mr Brierley's employment began in May 1987; it is not now in dispute, although it rather looks as if at one stage it was, that as late as the end of the tax year 1988/1989 he remained in employment. We have seen documents which, on their face, are plainly returns made for the year ending on 4th April 1989, which show Mr Brierley as included in returns of the sums accountable for by the club to the Revenue for tax and to the relevant government department for National Insurance deductions. It is equally clear that from 5th May 1994 onwards Mr Brierley was employed and treated as an employee for the purposes of tax returns. In truth, that also seems to be true for the first eleven weeks of the tax year 1993/94. The gap, therefore, is from 5th April 1989 to 6th April 1993.
7. During that period it is not, as we understand, in dispute that the club was in financial difficulties and was not voluntarily paying Mr Brierley, and the real issue was what was the reason for that. Was it that he was still an employee and the club simply could not and did not pay him, or had a fresh contractual arrangement been reached under which he, when he did do any work, was doing so as a self-employed person who was entitled to be paid fees? During that period we have been shown no documents and, as we understand it, there were no documents before the tribunal, for the period from 5th April 1989 until beginning of 1991.
8. In 1991 and 1992 Mr Brierley, in the name of Aladdin Lamp Repairs (but that was simply a trading name of his; it was not a separate company, it was simply Mr Brierley) rendered a series of invoices which were heavily relied upon by the appellant before the Employment Tribunal, as before us, as showing that the relationship had changed. The invoices do indeed invoice round sums. The invoices do not say anything about wages. The invoices certainly do not suggest that there are deductions for tax or National Insurance. Not unnaturally, therefore, the appellant before the Employment Tribunal heavily relied upon them. But it is to be noted that the services for which the invoices charge are perfectly consistent with the very same duties that Mr Brierley had undoubtedly performed as an employee and has more recently been performing as an employee. Typically the invoices deal with "Cover for steward"; that appears on virtually every one. There are also items for matters such as "meeting with Inland Revenue".
9. Faced with that evidence and further evidence which was negative, in the sense that it consisted of documents found by Mr Unwin, the present Secretary, in the papers of the club such as payslips and returns of employees which do not feature Mr Brierley, certainly in the year 1992, the tribunal dealt with the matter in this way:

"3. … The applicant [Mr Brierley] told the Tribunal that between 1991 and 1993, due to the parlous state of the respondent's finances he had not during that period been regularly paid his wages. As the applicant also carried on his own business under the name of Aladdin Lamp Repairs, he told the Tribunal that his accountants advised him to render accounts to the respondents for this period of time in order to register the indebtedness to himself of the respondents. But in all other respects he was continuously employed by the respondent during such period and carried out the functions of steward and other duties in a perfectly normal manner."

The tribunal then goes on to record the appellant's submission that Mr Brierley was self-employed between that period. Indeed, in addition to the invoices, the appellant relied then and relies now on a document which Mr Brierley himself completed in connection with a public appointment in which he described himself as self-employed. The tribunal, having recorded that submission, goes on:

"5. The Tribunal unanimously concluded that the applicant had been continuously employed by the respondent from May 1987 to 10 September 1997 when he was made redundant. During the period 1991 to 1993 when the applicant's wages were not being paid to him regularly by the respondent he was nevertheless during that time properly and in every other way ordinarily employed by the respondent. The Tribunal accepted the applicant's evidence that it was only due to the non-payment of his wages and the advice of his accountant that he rendered invoices to the respondent from Aladdin Lamp Repairs in order to register the indebtedness. This did not, in the opinion of the Tribunal, affect the fact that the applicant was during such period continuously and properly employed by the respondent."

10. The question is whether the tribunal was wrong in law in that conclusion and not whether we, if we were the tribunal of fact, would have come to that conclusion or a different one. We can see no error in law. It is of course true that the invoices were important evidence. The tribunal clearly appreciated that importance because that is part of the evidence on which they particularly comment in a quite short statement of reasons and it cannot for one moment be supposed that they had forgotten all the other documents which were put before them during what was no doubt a very thorough investigation before them by both Mr Unwin and Mr Brierley. But the fact that they concentrate on the invoices show that they fully appreciated the significance of them and having done so they nevertheless concluded that the employment was continuous. We see no error of law in that. It has to be remembered that although the matter may not have been discussed explicitly in those terms the proposition that there was a break in the employment necessarily entails that at some point not necessarily by exchange of letters or even by an explicit discussion, but nevertheless at some identifiable point - either the club dismissed Mr Brierley or he resigned or the club and Mr Brierley came to an express agreement that he should ceased to be employed and become a self-employed person rendering invoices as such from time to time and that equally explicitly Mr Brierley should have been re-engaged as an employee in April 1993. It is perfectly possible that the tribunal might on the evidence before them have concluded that that was the most likely analysis of such evidence as they had, which was of course by its nature incomplete, but they were not compelled to do so. The conclusion to which the tribunal did come was one, in our judgment, to which they were entitled to come on the evidence before them and which does not show any error of law which would entitle us to set their conclusion aside. The appeal must therefore be dismissed.