United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS NAOMI CUNNINGHAM (of Counsel) Instructed By: Free Representation Unit 4th Floor Peer House 8014 Verulam Street London WC1X 8LZ
For the Respondents	MR ANDREW SHORT (of Counsel) Instructed By: London Borough of Camden Legal Services Dept Town Hall London WC1H 9LP


 


JUDGE D M LEVY QC:

1. In November 1996 Mr Michael McDonald ("the Appellant") was referred by an employment agency, Plan Personnel ("PP") to a job at the Bloomsbury Square car park run by the London Borough of Camden ("the Respondent"). He was interviewed by Mr Stephenson, the manager of the car park, and commenced work. His hours were from 6.00am to 10.00am. He was paid by PP for work shown on time-sheets which were signed by Mr Stephenson before being submitted to PP, who subsequently billed the Respondent in respect of the hours he had worked. After completing his morning shift, he was regularly assigned extra duties by the Respondent for which he was paid in the same way.
2. A year or so later, he applied for and was appointed to a weekend job at the same car park as a car park attendant. It is common ground that in that job that he was a direct employee of the Respondent. In October 1998 the Respondent notified PP that it did not want the Appellant to continue to work for them during the week. He was therefore removed by PP from his weekly assignment and lost other duties with the Respondent. He complained of an unfair dismissal from the job which he had been doing through PP, unauthorised deduction from his wages and that in withdrawing from him his weekday work the Respondent had subjected him to a detriment contrary to section 48 of the Employment Rights Act 1996 ("the 1996 Act"). He sent two originating applications to the Tribunal on 7 December 1998 and 25 January 1999; subsequently the two complaints were consolidated. Four questions were then set down for answers by a Tribunal at a preliminary hearing. That preliminary hearing took place at London Central on 3 July 2000. On that occasion the Appellant appeared in person and a solicitor appeared for the Respondent. The unanimous decision of the Tribunal was that the Appellant was not an employee of the Respondent as a cleaner during the period November 1996 to October 1998. During that period he was employed by PP, not a party to these proceedings; his claims under those proceedings as to whether he was an employee were therefore dismissed.
3. There was an appeal against that decision by a Notice of Appeal dated 17 August 2000. That came for a preliminary hearing before a Tribunal headed by Mr Recorder Langstaff QC. On that occasion, Miss Cunningham, of Counsel, appeared on his behalf, as she has today. The Tribunal ordered that the appeal could go ahead on the grounds of appeal subject to the lodging of an amended Notice of Appeal. One dated 20 March 2000 was lodged and is that appeal which we have heard.
4. Essentially, the grounds of the appeal are, that, on the question of who was the employer, the Tribunal erred in failing, first, to identify the correct test to determine whether the Appellant was an employee of the Respondent in respect of his weekly job and, secondly, to make any sufficient findings of fact on which to base its conclusions that the Appellant was not an employee of the Respondent in relation to his weekday job. Thirdly, the Appellant complains that the Tribunal wrongly held that he was not an employee of the Respondent in respect of the work which was carried out at the behest of PP. A further ground which was allowed to proceed to a full hearing, although it is not in the amended grounds of appeal, is as to whether he suffered a detriment.
5. The Appellant has been ably represented before us today by Miss Cunningham, for whose cogent skeleton argument and oral submissions we are very grateful. The first point that she makes is that the Tribunal has failed to ask itself the right question, was he an employee of the Respondent when he was doing his cleaning duties and, secondly, that the Tribunal failed to set out in the indicter setting out one way or the other why he might or might not be an employee. Her submissions are correct that the question itself is not put in the decision and there is a failure to set out the appropriate indicia.
6. In answer to that, Mr Short, for whose able written and oral submissions we are also grateful, has referred us to a number of cases, which lead to a submission that if we consider the findings of fact made in the Notice of Appeal, it is quite clear that although the direct question was not asked, the answer to it comes out of the four corners of the facts as found, namely, that he was an employee of the Respondent.
7. A further complaint which Miss Cunningham had made, is that there was no reference in the Decision to a document which is included in our bundle, the "Terms of Business" of PP which might have been of assistance to the Employment Tribunal. Mr Short referred us to a number of cases where this has been answered including Costain Building & Civil Engineering Ltd v Smith & Another [2000] IRLR 215 which sets out the approach of the Employment Tribunal. In respect of that decision, Miss Cunningham pointed out certain paragraphs in the findings such as paragraph 4 where the facts were found as an attendant at the site that the site hours were explained, that there was no discussion as to employment status, there was no written agreement with the contractors and the Applicant did not receive any disciplinary or grievance procedure documentation. He did not expect to receive sick pay or holiday pay and there was no provision for notice to terminate his work at the site. She suggested nothing like that is found here.
8. In paragraph 3 of the Tribunal's findings of fact Miss Cunningham submits that the Tribunal is asking who was the employer, not whether the Respondent was the employer. In paragraph 3 the Tribunal point out that the Appellant could not produce a contract or other document from PP showing the contractual relationship between him and them and in the absence of any documentation they found that he was engaged under an employment contract whereby PP could offer him work for various customers for whom he worked. His hours of work would be notified to PP by the customer and PP would pay the Appellant the appropriate rate. PP referred him to the Respondent. In paragraph 6, there is a finding that his employment pattern continued until August 1997 when he was interviewed for the other job and it carries on:

"He was interviewed for that job, was accepted and commenced work on 9 August 1997 while continuing to work under his PP arrangements during the rest of the week."

9. Mr Short submits, "arrangements" means "contract" but he accepted that it was a pity that that word was not used by the Tribunal, particularly pointing to the paragraph at 9A:

"The job of cleaner was performed for the Respondents but at the behest of Mr McDonald's employer who was PP, the employment agency which made his services available to the Respondents."

10. While we accept the strictures of Miss Cunningham that the Tribunal could have crossed its "T's" and dotted its "I's" more, we are satisfied that within the four corners of the decision we can find the necessary indicia to reach the conclusion that the Employment Tribunal were right in coming to the conclusion reached, namely that the Appellant was indeed not an employee of the Respondent during his day job. We have considered the terms of business which do have indicia which go both ways but looking at those indicia it seems to us that they are more in accord with him not being an employee of the Respondent than otherwise.
11. We turn to the second of the grounds of appeal, which relates "Protection from Suffering Detriment in Employment" as set out in section 44 of the 1996 Act. In the event that we had found against the Appellant on the earlier ground, Miss Cunningham submitted that because he was doing work for the Respondent in the capacity of his weekend work, he suffered a detriment in losing his employment by the Respondent. She submitted that section 44 of the 1996 Act provides that an employee has a right not to be subjected to any detriment by his employer on a number of specified grounds, further that there was no requirement in the section that the detriment must arise from the specific employment which defines the parties as employer and employee respectively. It was immaterial if part or all of the detriment to which the Appellant was subjected, related to an engagement to perform work for the Respondent which was not a contract of service. If, she submitted, section 44 was ambiguous in this respect, the interpretation should be preferred which best protects the health and safety of the employers and therefore gives the fullest effect to the framework Directive on Health and Insurance 89/391 EEC. She referred us to Article 72 and 85 in subsection (5).
12. In answer Mr Short reminded us that the heading of Part V of the 1996 Act is heading "Protection from Suffering Detriment in Employment". He submitted that for a detriment to fall within these provisions it must be a detriment employment, that is the detriment must be imposed within the context of the employment relationship. He referred us to a decision within the discrimination legislation, De Souza v Automobile Association [1986] ICR 514 and particularly to the passage at page 522 where May LJ giving a judgment with which Slade LJ and Neill LJ agreed, said:

"In each of these cases the detriment or disadvantage to the employee was in connection with what Mr Sedley described as his employment context. In the first, it was having to do dirty work: in the second, it was losing the more congenial work at the counter and having to work as a filing clerk in the rear office: in the third, it was being thoroughly checked when coming in to work, substantially more thoroughly than were white fellow employees. Apart from the actual decisions in these cases, I think that this necessarily follows upon a proper construction of section 4, and in particular section 4(2)(c) of the Act. Racially to insult a coloured employee is not enough by itself, even if that insult caused him or her distress; before the employer can be said to have been subjected to some "other detriment" the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."

13. Although Mr Short showed us some differences between the wordings of "detriment" in the different Acts, we are satisfied that that passage in De Souza is of help to us. In our judgment the Respondent subjected the Appellant neither to any detriment in its capacity as his weekend employer nor in the context of that weekend employment. In this case, the detriment complained of was the termination of the weekday working, something wholly distinct from the weekend employment. For example, the weekday work was not available to the Appellant because he was a weekend employee.
14. In reality, this appeal is by a contract worker who complains that his principal has terminated his engagement. It did not concern the employee/employer relationship comprising the weekend work. The contract principal relationship, in our judgment, does not fall within the protection of sections 44 and 47. Mr Short contrasted the protection of section 47A which was extended to the contract principal relationship by section 47A(1), 48(5) and 63A of the Act. He submitted that the Parliamentary intention to limit the applications of 44, 47 and 49 was demonstrated by several matters, first, that the right to bring such claims was limited to employees rather than workers and this has remained the same notwithstanding that the legislation expressly provides for other claims to be brought by workers; secondly, that there were no provisions to extend the rights under section 44, 47 or 94 to contract workers as there are in section 47A or in the sex, race and disability discrimination legislation and, although subject to the matters which are in issue here, there has been a change in the law. The Secretary of State has not chosen to use the powers under section 23 of the Employment Relations Act 1999 to extend the rights under these sections to contract workers. He submitted that there is no reason to extend the protection to the Appellant's case because of the accident of chance that the Appellant has also a separate employment relationship with the Respondent.
15. In our judgment that submission of Mr Short was right and we agree that there was no detriment under Part V suffered by the Appellant in relation to which he is now entitled to complain.
16. In our judgment, therefore, this ground of appeal also fails. In the circumstances we dismiss this appeal.