United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTIN BARKLEM (Of Counsel) Instructed by Messrs Hammond Suddards Edge 2 Park Lane Leeds LS3 1ES


 


JUDGE REID QC

1. This is a preliminary hearing on an appeal by the employer (which is properly described as ICI Chemicals and Polymers Ltd despite the abbreviated title in the file documents) from a decision of an Employment Tribunal which was held at Thornaby on Tees on 15 January 2001. By the decision which was on preliminary issue the Tribunal unanimously held that the Applicant, Mrs Maidens was an employee of the Respondent ICI (as I shall call it) for the purposes of section 230 of the Employment Rights Act 1996.
2. The issue between the parties had been whether she was an employee of ICI or whether she was an agency worker and as such either an independent contractor or an employee of the agency. This is an area of law which is subject to a considerable amount of uncertainty at present.
3. There is at least an argument for saying that in the absence of there being any direct contractual nexus between a worker and the company for whom he works, the worker cannot be an employee. Clearly at some stage the law is going to have to be clarified either by a higher Court or perhaps by further legislation. The question that we have to ask ourselves is whether the uncertainties in the law are such that, looking at this case, there is an issue which should go for a full hearing.
4. We have been must assisted by Mr Barklem's argument which has dealt fairly and fully with all the points which are raised but having considered it we take the view that the decision of the Employment Tribunal was correct and that whatever the law may eventually turn out to be the decision which it reached would not be impugned by any prospective change or clarification of the law. The position was that this lady worked for a considerable period of time for ICI. Although there were a number of factors which pointed to her being either an independent contractor and not an employee of ICI there were other factors which pointed in our view conclusively to her having been an employee.
5. Amongst other matters was the fact that she received targets from ICI and was in receipt of bonus payments when she met those targets. Furthermore she had since about 1995 been in receipt of holiday pay and sick leave pay which was not paid by the agency through which she had been originally engaged and did not form part of her agreement with them. It was therefore clearly some direct contractual nexus albeit she was not a party to the pension scheme which ICI ran.
6. In our view when one looks at the factors carefully set out in paragraph 39 of the Employment Tribunal's decision against the background of the matters which they found with admirable detail and clarity in paragraphs 5 - 27 the only possible conclusion on the facts of this particular case is that Mrs Maidens was an employee of ICI. I stress the words 'on the facts of this particular case' because it appears the facts of this particular case may be somewhat out of the ordinary, not simply in regard to her length of service but also in regard to the direct contractual nexus arising out of the agreement for holiday pay and sickness pay and from the fact that those were payments to which she was not entitled from the agency and which appear on the findings of fact to have been paid direct.
7. It therefore seems to us that this is not a case which would be ever likely to make a basis of some precedent for other cases and that, on the facts that the Tribunal had found, the decision which it reached was one which could not as a matter of law be impugned. The matter will therefore not go to a full hearing.