United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S DEVONSHIRE (Of Counsel) Instructed by Roythorne & Co 10 Pinchbeck Road Spalding Lincolnshire PE11 1PZ


 


JUDGE A WAKEFIELD

1. This is an Ex Parte Preliminary Hearing of an appeal by Newnham Farms Limited against a decision of an Employment Tribunal sitting a Hereford by which it determined as relevant to this appeal, firstly that the Respondent Mrs Powell (who had been the original Applicant) was employed by the Appellant, secondly that the Respondent was a worker employed in agriculture within the meaning of section 3 of the Agricultural Wages Act 1948, thirdly that had the Appellant followed a fair procedure and consulted with the Respondent prior to dismissal, the Respondent would have been employed for a further month, and fourthly, that the Respondent had been underpaid in terms of the Agricultural Minimum Wage, that is contrary to the National Minimum Wage Act 1998, the amount of such underpayment not yet having been assessed.
2. The background to the Originating Application was, very briefly, that the Respondent and her husband occupied a farmhouse on the Appellant's hop and apple farm. Mr Powell worked full-time in the business and the Respondent came to be paid an annual sum of £2000 by the Appellant and performed certain regular tasks in the business. The marriage broke down. Mr Powell left the farmhouse and the Appellant terminated the arrangement which it had with the Respondent as from 30 June 2000.
3. It was in those circumstances that she complained to the Employment Tribunal of having been unfairly dismissed and of having been underpaid, in terms both of wages and of holiday pay.
4. In paragraph 1 of the Extended Reasons for the decision the Employment Tribunal immediately identified the core issues which were before them. They said:

"This has been an unusual, difficult and we venture to say important case on the position of a farmer's wife. Does she have employee status? Is she "employed in agriculture"?"

5. Their subsequent finding that the Respondent was an employee is criticised by the Appellant on the basis that there was a failure by the Tribunal to ask whether the Appellant had sufficient control over the Respondent for there to have been a contract of employment. Also, it is argued that too much weight was given to the fact of payment of £2000 per annum to the Respondent.
6. The analysis by the Employment Tribunal of the status of the Respondent in terms of section 230 of the Employment Rights Act 1996 seems to us to have been a full and quite careful one. It is dealt with in paragraphs 8 – 30 of their decision. The main criticism today, and one which we think is a potentially valid one is that there does not appear to have been sufficient weight given to the need for control between the Respondent and the Appellant and we are reminded by the Appellant in the skeleton argument that there has recently been a re-emphasis of the need for the "control" test in a case Montgomery -v- Johnson Underwood Ltd CA [2001] IRLR 269.
7. Were this the only ground of appeal we might have hesitated in allowing it to proceed to a full hearing. However, we consider that the "employee" analysis and the analysis as to whether or not the Respondent was a worker "employed in agriculture" for the purposes of the 1948 Act are probably linked and in our view as to the latter the appeal does merit full argument.
8. What the Employment Tribunal said as to worker "employed in agriculture" appears in paragraph 31 of the decision. They say this:

"We considered that the Applicant was a worker "employed in agriculture" for the purposes of the 1948 Act. The Respondent's argument was that the nature of her work was administrative and not direct agricultural work. The Order provides that it applies to "any worker employed to undertake agricultural work". Clearly the business of the farm was agricultural as defined in Section 17(1) of the 1948 Act. We consider that the Applicant's tasks being ancillary to a wholly agricultural business is agricultural work. On a farm many workers' tasks will in practice involve a mixture of administration and direct productive agricultural work. We cannot think the legislation intended their duties to have to be split, for minimum wage purposes, between the two types of work. The Applicant herself would occasionally undertake relief work of a direct agricultural nature. If it was intended that pure management or administration was to be excluded from the definition of agricultural work, we would have expected that to be spelt out in the legislation. It is not. We are left to decide this point with no statutory guidance or precedent case law, but decide it with confidence nonetheless, on the facts of the case. We can see that where there are non-agricultural enterprises run from a farm, it might be more complicated. The fishing club, for instance, is a moot point in this case."

9. The finding in that paragraph is criticised in the Appellant's argument before us on the basis, (and I am reading from paragraph 4 of the skeleton argument), that:

"The Tribunal concluded that Mrs Powell was a worker "employed in agriculture" on the basis that her "tasks" were ancillary to a wholly agricultural business, and as such were agricultural work.

There is, so far as the Appellant been able to ascertain, no authority directly in point on the meaning of "worker employed in agriculture" for the purposes of the 1948 Act. No clear lead emerges from the decided cases which have construed similar words under other pieces of legislation.

There is then a reference to allegedly analogous situations. In 4.3 the argument continues:

"In the context of the 1948 Act, the proper focus should be on the nature of the work undertaken by the worker/employee, not on the nature of the work or business of the employer."

10. It appears to us there may be some merit in these contentions. In view of the acknowledged lack of any statutory or case law guidance as to the meaning of worker "employed in agriculture" this is a matter which in our view does merit full argument. Inevitably it follows in our view that the fourth ground of appeal, as to the Respondent's entitlement to the agricultural minimum wage, must also be heard in full by this Appeal Tribunal.
11. We note that it was argued at the Employment Tribunal that husband and wife should, for the purposes of minimum wage entitlement calculations, be treated as a joint entity, a package as it were rather than as individuals receiving different wages. It is not clear whether the Employment Tribunal actually made findings as to this but again this is a matter which we consider the Appeal Tribunal should hear in full.
12. Finally, the third ground of appeal arises from the findings of the Employment Tribunal in their paragraph 32 where they said (as relevant) this:

"The Tribunal considered the dismissal had to be unfair because of the admitted lack of consultation. Consultation would not, prospectively, have been futile. We considered that one month would have been appropriate to allow for a reasonable and suitably sensitive consultation on the available options and would limit any compensatory award accordingly."

This is said in the grounds of appeal, and further argued in the skeleton and in oral argument, to be a flawed analysis. In particular it is criticised because the notice to the Respondent was given in January. The notice was to expire in June. Therefore it is argued, any one month's consultation would have been encompassed by that period.

13. In our view, once again, this is an arguable point. The appeal will therefore be heard in full as regards all four grounds which are set out in the Notice of Appeal. We are going to put it in Category B, time estimate - one day. The Respondent will be granted an extension of time for filing an answer to 1 February 2002 and the final hearing of the appeal is not to be listed before 15 March 2002. So far as skeleton arguments are concerned they must be exchanged between the parties and served on this Tribunal not less than 14 days prior to the hearing.