United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D J WHITING Company Secretary


 


JUDGE COLLINS:

1. This is a preliminary hearing of an appeal against the decision of an employment tribunal sitting at London (South). Its extended reasons were promulgated on 4 November 1999. Mr Whiting, company secretary for the appellants, who appeared before us today, appears to have been instructed last week to appear by the administrative receiver. Without meaning any disrespect to Mr Whiting he seems to be labouring under similar difficulties today to those that the tribunal noted in paragraph 8 of their decision. The hearing before the tribunal was itself a preliminary hearing on the question of whether or not the respondent had the requisite two years continuous service to enable him to present a complaint of unfair dismissal.
2. The respondent's case was that he had been employed from February 1997 until 23 March 1999. The appellants' case was that he was only employed from 15 December 1997 and that prior to that date, although he had been running a pub for the appellants, he had been doing so on a self employed basis and therefore did not have the necessary continuous service.
3. The tribunal held that the respondent was an employee throughout the whole period and therefore his claim for unfair dismissal could proceed. They held that the respondent had since February 1997 been joint manager together with his wife of the Golden Fleece pub at Sittingbourne and that although, as a matter of device, he had been paying his own tax and national insurance, that did not displace all the other evidence in the case which they found was consistent with his being an employee.
4. Mr Whiting first seeks to admit fresh evidence. It consists of two unsigned copies of contracts of employment with other licensees. The object of the exercise appears to be to convince us or to convince a fresh tribunal if the matter is remitted, that since the appellants had an unalterable policy of giving written employment contracts in a standard form to their licensees, they would have done the same with the respondent at the Golden Fleece in February 1997 if employment had been intended. There is no material put before us to suggest that these documents were not available with reasonable diligence at the hearing. Mr Whiting has shown us a letter written by the company's solicitors to the solicitors of a former director in February 1999 asking for documents. They had no reply to that we are told, but they did not chase it up even though the hearing before the tribunal was not until June. We are told that the documents did in fact become available in July or August. It seems clear to us that there is no material on which this tribunal could begin to conclude that the material was not available with reasonable diligence before the hearing.
5. It seems to us that the new material is irrelevant anyway. The question of what the contract was between the respondent and the appellants in February 1997 is unlikely to be significantly influenced by knowledge of what contract the appellants made with other persons.
6. It is then argued that the tribunal was wrong not to regard as conclusive the fact that the respondent was paying his own tax and national insurance. Mr Whiting relies on the decision of the Court of Appeal in Massey v Crown Life Insurance Co [1978] 1WLR 676 where the Court said in strong terms that if the parties chose to take advantage of self employed status that was very strong evidence that that was the relationship between the parties. But at p681C, Lord Denning says: -

"In most of these cases, I expect that it will be found that the parties do deliberately agree for the man to be "self-employed" or "on the lump." It is done especially so as to obtain the tax benefits. When such an agreement is made, it affords strong evidence that that is the real relationship."

7. That shows that the question of whether a man pays tax and national insurance directly is not decisive. It is strong evidence of what the real relationship might be and the tribunal took it into account when deciding what the real relationship was. They decided that it was not conclusive in the circumstances of this case and it is impossible for us to say that there is reasonably arguable case that that was perverse. It was a decision which was within the remit of the tribunal.
8. It is next argued is that there was a breach of natural justice in some way because the respondent failed to notify the appellants that he was going to call as his witness a former director with whom the appellants were in litigation. Mr Whiting did not inform Mr Baron that he, Mr Whiting was going to give evidence, but Mr Whiting does not consider that was a breach of natural justice. Although Mr Whiting was in possession of all relevant information about Mr O'Neill and could have put to Mr O'Neill in cross-examination he tells us today that he declined to do so. It is very difficult to discern any substance in that point at all. In the event this appeal will be dismissed.