United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C HENNEY Solicitor Instructed by: Messrs Henmans Solicitors 116 St Aldates Oxford OX1 1HA


 


JUDGE WILKIE:

1. This is an appeal by EDS Ltd against a decision of the London North Tribunal sent to the parties on 23 December 1999. The Applicant, insofar as is relevant for our purposes, was making a claim of sex discrimination against two Respondents. The first, Brook Street UK Ltd trading as Brook Street Bureau, was the Employment Agency which found her work as a temp and which paid her for the work she performed as a temp. The second Respondent, EDS Ltd, was the party for whom she actually performed the work, having been placed there as a temp by Brook Street Bureau. The Employment Tribunal considered whether the Applicant had a relationship of employment, pursuant to s.82 of the Sex Discrimination Act, which extends both to a contract of service and a contract personally to execute any work.
2. It concluded that there was no such employment relationship between the Applicant and Brook Street Bureau. It concluded that there was no contract of service between her and EDS Ltd but that there was a contract personally to execute work between her and EDS Ltd. As a fall back position, the Employment Tribunal concluded that, if they were wrong about their analysis under s.82, then they found that there was potential liability in EDS Ltd, pursuant to s.9 (1) of the Sex Discrimination Act 1975, which in effect states:

"A person employed not by the principal himself (i.e. the person for whom they are doing the work) but by another person who supplies them under a contract with made the principal, none the less renders the principal potentially liable for any sex discrimination suffered by the Applicant, whilst performing work with them at the best of the person supplying them."

3. Mr Henney, who represented the second Respondent at the Employment Tribunal, cited to them the Employment Appeal Tribunal decision in BP Chemicals Ltd v (1) Gillick and (2) Roevin Management Services Ltd [1995] IRLR 128. He urged upon them that that case was an authority that the relationship between this Applicant and EDS Ltd could not amount to employment under s.82. He urged upon them that the factual matrix of that case was in no way distinguishable from the factual matrix with which this Tribunal were dealing and his main ground of appeal is that in purporting to distinguish that case, this Employment Tribunal erred in law.
4. In the BP Chemicals Ltd v (1) Gillick and (2) Roevin Management Services Ltd case, a conclusion of the Employment Appeal Tribunal that the relationship was not one which fell within s.82 made no difference to the outcome because the Employment Appeal Tribunal concluded that s.9 applied. However, Mr Henney makes the point that, insofar as this Tribunal purported to make its alternative decision on the basis that s.9 applied, it was erroneous in law for it to do so, having regard to its prior finding that there was no contract of employment under the rubric of s.82 between Miss Hanbury and Brook Street Bureau.
5. In effect, therefore, he argues that what was thought in BP Chemicals Ltd v (1) Gillick and (2) Roevin Management Services Ltd to be a comprehensive safety net through which an Applicant, who was engaged as a temp, could not fall in fact fails in this case. This is so because she falls through a gap in the net not having a relationship of employment with the Employment Agency, and not having a relationship of employment with the party for whom she was actually doing work. If he is right, then it does constitute a serious shortcoming in what previously had been thought to be a comprehensive statutory scheme.
6. This is a difficult and potentially significant issue and it is manifestly one which ought to be considered at a full hearing. Because of the consequence of the argument put forward by Mr Henney, the applicant in this case may well want to give consideration whether to cross appeal any of the findings or rulings of the Employment Tribunal and in particular those affecting Brook Street Bureau, so that all three parties are before the Employment Appeal Tribunal. That is, of course, a matter for her and her advisers. For our purposes we think that Mr Henney has shown an arguable case that this Tribunal got it wrong in that respect.
7. He has also raised a procedural argument namely that at the conclusion of the Appellant's evidence he announced that he was making a submission of no case to answer intending, if the submission were not acceded to, to call evidence in support of the Respondent's case. It seems that for one reason or another the Chairman did not appreciate what was happening and, having listened to legal submissions, then proceeded straight into a decision. Mr Henney took the view at the end of that decision that was an end of the matter. He was not able to seek to have the Tribunal reopen its decision and therefore did not seek to persuade the Tribunal to do so, by permitting him to call evidence. He says that there is authority to the effect that, once an oral decision has been finished, then the proceedings are at an end and the Tribunal would not have jurisdiction to reopen the matter particularly if, as he surmises, the successful Applicant were to object.
8. We are persuaded, though with some hesitancy, that there is an arguable point of appeal on this basis. It may be unnecessary for it to be fully argued in the light of the more important, substantive issue of law, but we think that it would not be right for us to preclude Mr Henney from arguing this point at an inter-parties hearing and therefore we permit this ground of appeal, to proceed.