United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR S SPENCER (of Counsel) Lloyd & Associates Solicitors 48 Onslow Gardens London SW7 3PY


 


MR JUSTICE BURTON: This is the preliminary hearing of an appeal by the Respondent, Wey Group International, before the Employment Tribunal sitting at London (South) on 13th September 1999. The appeal is against the very careful decision by the Chairman, Mr Warren, in which he set out the balancing factors, as he and his colleagues saw them and in accordance with the proper method of dealing with this very often difficult question, as to when an Applicant is an employee and when he is self-employed or a subcontractor. The Tribunal came to the conclusion that there were more factors on the weighing scales bringing the matter down in favour of the Applicant of being an employee, and they made those conclusions, of course, in the light of the evidence before them, taking into account not only the wording of what Mr Spencer today has accepted is a rather unsatisfactory contract, but also the evidence as to the practice at the company. In the light of the Tribunal's conclusions on the evidence and on the weighing exercise. It was satisfied that the Applicant was an employee and had been was unfairly dismissed.

1. The grounds of appeal put before us today are threefold. First, what might have been, had it been supported by evidence, a point of law. Mr Spencer referred to Express and Echo Publications v Tanton [1999] IRLR 366 CA in which, albeit that there were features in the case which made it appear less likely than in this case, that the Applicant was self-employed. The decisive feature there was that it was held to be possible for the worker to substitute someone else in his place in the performance of duties under the contract, and the Court of Appeal concluded that if there were no obligation to provide services personally, then the contract resulted in there being less than the irreducible minimum of obligation to be expected of an employee.
2. Mr Spencer submitted that on the facts of this case, there was the same situation, at least arguably for the purposes of leave to appeal, namely that employees were entitled to substitute others rather than perform the personal obligations themselves, provided that someone else was suitably qualified.
3. The evidence before the Tribunal on this point was extremely exiguous, but is in fact dealt with, Mr Spencer accepts so far as in fact there was such evidence, in paragraph 8 of the Tribunal's decision. The only evidence, it appears, was that on one occasion one individual, not the Applicant, asked if his father could carry out his duties while that individual was either sick or on holiday, and such request was granted.
4. That seems to us, on the evidence, to be at best neutral, but in fact more likely to be unhelpful to the case that there was a right on the part of the worker to substitute someone else, because even the one example which was cited involved a request to the employer, rather than any kind of asserted entitlement to do it whether such request was granted or not. But, in any event, even if that amounted to something more than a one off request, there was very little evidence, as can be seen, if any at all, and certainly none relating to this Appellant, which would show that this was anything other than what might well happen in an employment situation, namely an employee saying 'I cannot come into tomorrow, do you mind if someone comes in and does my duties for me?' Such an event, on one occasion, in respect of one employee, would not, it seems to us, undermine the argument that there was a contract of employment. It would certainly not be the kind of exocet which the argument apparently was in Express and Echo Publications, such as to override any other factor, which is what the basis of Mr Spencer's first submission would be, namely, that even if the balancing act was otherwise done correctly, this one factor alone would be sufficient in law to mean that the Tribunal got it wrong. As is clear from what I have said, there was no evidence before the Tribunal which would or should have driven the Tribunal to any such conclusion and, consequently, it remains, as indeed it was taken into account as being by the Tribunal, one small factor rather than being any kind of overpowering factor as it might have been if the evidence had been different. That would have been a point of law
5. As for the second and third propositions, they are, it seems to us, much more a question of wishful thinking on the part of Mr Spencer that there had been a different result or perhaps that the matter had been argued more differently or more persuasively below, such that the balancing act might have come down his way. It did not.
6. It seems to us to be a very important matter that these very experienced Tribunal members should be left to assess the relatively common question 'is there an employee or not' on the basis of the evidence presented to it, which is then carefully weighed by them, as they have done, without there being a rehearing by another three perhaps less experienced, but certainly no more experienced, members of a different Tribunal. We are a review body and not an appeal body.
7. The arguments by Mr Spencer were:

(1) that, on his analysis, there were only three factors in favour of employment and ten against and, consequently, the onus of proof was not satisfied; but even Mr Spencer recognised that even that would depend upon how weighty the three were as against the thirteen; and

(2) that the balancing act was perversely carried out because there was no evidence to support the siting of a particular factor on one side of the scales rather than another, as opposed to being neutral.

Those two arguments combined would lead to the need for us to conclude, on a reading of this Tribunal's decision, that there had arguably been perversity. We are wholly unpersuaded that there is the ghost of such an argument in relation to what appears to us, right or wrong in the eventuality does not matter because we are only reviewing it, to have been a careful and fully considered decision on the evidence and arguments placed before the Tribunal. Consequently, we refuse leave to appeal and the case is dismissed at this preliminary stage.