United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE BURTON:

1. Ms Samuels was a temporary member of staff in the Housing & Finance Department in the London Borough of Lambeth. After working there for a year she was dismissed in circumstances of which she complains that they amount to unfairness and consequently she brought a claim against the London Borough of Lambeth for unfair dismissal.
2. Before an Applicant can succeed in bringing, never mind bringing home, a claim for unfair dismissal, it must be shown that she is an employee of the Respondent to the application. A preliminary issue was heard on 1st December 1999 as to whether she was an employee of the London Borough of Lambeth.
3. After hearing evidence, the Employment Tribunal sitting at London (South), chaired by Mr Mahoney, unanimously decided that the Appellant was not an employee of the London Borough of Lambeth and thus her claim for unfair dismissal was never heard, because the Tribunal concluded that it had no jurisdiction to hear her complaint.
4. There is clear authority that the question of whether someone is an employee is a question of fact, assessing a number of indicia which were originally set out in the Ready Mixed Concrete [1968] 2QB 497, and which have been the subject matter of a number of cases, some of which were referred to by the Tribunal itself in paragraph 12, making it clear that the Tribunal well understood the principles of law which it had to apply in relation to this case.
5. Having looked at the right law and asked itself the right questions, the Tribunal made findings of fact. The most influential points, so far as the Tribunal was concerned, were the following:

(1) that the Appellant was initially engaged through an agency.

(2) that that agency had a contract for the supply of services between itself and Lambeth.

(3) that the agency paid the Appellant's wages after deduction of tax and National Insurance.

(4) that the payment made by Lambeth to the agency was a fixed sum under the contract, originally £9.72 per hour, whereas the sum that the agency paid the Appellant before deduction of tax and National Insurance, was, at the outset of the arrangement, £4.50 per hour.

(5) that on the finding of the Tribunal, the Appellant could not turn up for work if she so chose, having merely informed Mr Ojimba or Mrs Quinn, usually but not necessarily a day in advance, and only received payment for the hours she worked.

6. There were other facts which the Tribunal put on the other side of the scale: the fact that the Appellant carried out a set pattern of work, the fact that she was fully supervised and that her work was similar to that of full time staff.
7. The Appellant received no sick pay or holiday pay and she received no written contract of employment unlike permanent staff, although that latter point was said, by the Tribunal, to be a matter of which it would not in the event take judicial notice.
8. In all those circumstances, the Tribunal was clearly entitled to come to the conclusion that the Appellant was not an employee of Lambeth.
9. The reality was that, as the Tribunal said in paragraph 8 of the decision:

"The engagement of the Applicant by the Respondent through the introduction of [the agency] was subject to the contractual arrangements made between the Respondent and [the agency]. …"

There was in fact a contract for services between Lambeth and WEA, the agency.

10. Although it makes no difference to the result, the Tribunal having concluded that the Appellant was not an employee, went on to say that it was unanimously of the view that the legal relationship between the Appellant and the Respondents was one of a contract for services. That appears to us to be a mistake. What the Tribunal meant, I suspect, is that the legal relationship between the agency and Lambeth was one of a contract for services and that there was no contractual relationship between the Appellant and Lambeth. Any relationship was only between the Appellant and the agency, which paid the Appellant's wages and deducted her tax and National Insurance in the circumstances to which I have already referred.
11. In those circumstances, we can see no point of law, no basis upon which there could be any challenge to the finding of fact by the Tribunal that this Appellant was not the employee of Lambeth and therefore cannot complain of unfair dismissal, as against Lambeth. The appeal is therefore dismissed.