United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR RECORDER BURKE QC:

1. This is the preliminary hearing of the appellant's appeal against the decision of the Employment Tribunal at Manchester, chaired by Mr Hope and promulgated with Extended Reasons on 2 August 2000. The decision appealed from was that the respondent was entitled to a redundancy payment. The Tribunal also decided that the respondent was entitled to holiday pay under the Working Time Regulations; but that second limb of the Tribunal's decision is not the subject of an appeal.
2. In order to decide whether the respondent, Mr Charnley, was entitled as against the appellants to a redundancy payment, the Tribunal first had to decide whether Mr Charnley was employed by the appellants or whether he was self-employed. It resolved that issue in Mr Charnley's favour. It is now well established that unless the issue of the worker's status i.e., employee or self-employed or otherwise, falls to be decided wholly by the construction of a written document (and that was not the case here) the issue as to a worker's status is a question of fact.
3. The appellants are an employment agency who provide workers to engineering companies and the like. The Tribunal found, and we have detected no challenge to these findings, that for 32 years Mr Charnley had been employed by ICI at their Hillhouse site; but, in 1995, ICI closed down its operations at that site and Mr Charnley was made redundant. Other engineering companies were continuing, however, to work at the site; and the appellants and another agency were supplying workers to those companies. Mr Charnley was interviewed by the appellants and, to use a neutral expression, was taken on. He continued to work when his job with ICI finished, without any break, doing the same work in the same place, but, the Tribunal found, so far as he understood the position, simply employed by a different employer. He continued so to work until the end of October 1999 when the requirement for the work that he had been carrying out ceased.
4. The Tribunal correctly directed itself that its task, on the issue of Mr Charnley's status, involved a balancing exercise, looking at the points for and the points against employment and deciding on balance and looking at all the facts in the round and bearing in mind all the circumstances whether the relationship between the parties should or should not properly be described as employment.
5. It is accepted by the appellants, on the basis of an authority which it is not necessary to cite in this judgment, that those who work through an employment agency may be employees of the agency. However, it is argued in a skeleton argument put forward, as far as we can tell, by Counsel on behalf of the appellants, in support of the grounds of appeal set out in the Notice of Appeal, that the Tribunal erred in carrying out that exercise in this case. We put the matter that way because the appellants, have not been present today by Counsel or otherwise.
6. The Tribunal first had to consider what the position was as to the contractual documentation. There was an issue between the parties. The appellants maintained that the documents signed by Mr Charnley at the end of March 1995 contemporaneously with his ceasing work for ICI and starting to work for the appellants and which, on the face of it, appeared through alteration to delete reference within it to Mr Charnley as an employee and to replace the word "employee" with the word "person", was signed as altered. But Mr Charnley's evidence was that the document he signed was unaltered and that it had been subsequently altered. There was another similar alteration upon which the appellants relied, namely, the incorporation by reference of a document called GC45 as opposed to a different document presumably containing terms of an employment contract, we say presumably because it was not before us and seemingly was not before the Tribunal either, called NAECI.
7. On this issue the Tribunal accepted the evidence of Mr Charnley. The Tribunal found that there were numerous points in favour of there being a contract of employment. Those points included that the appellants paid Mr Charnley wages each week from which they deducted tax and National Insurance contributions. Secondly there was no suggestion that tax and National Insurance should be dealt with in any other way. Thirdly the contractual documents signed by Mr Charnley described him as an employee and did not contain anything indicating that Mr Charnley was to be treated otherwise. Fourthly, as to control, the appellants had a foreman on site who gave Mr Charnley instructions mainly concerned with employment matters, as the Tribunal found. Fifthly, Mr Charnley regarded himself as an employee and had never contemplated nor had the appellants said anything to cause him to contemplate any other status. Sixthly, the appellants had never made it clear to him, nor had they made any suggestion to him, that his status was other than that which had prevailed for 32 years before he ceased work for ICI and began to work for the appellants.
8. There were other findings in favour of employment which we need not recite. The skeleton argument puts forward, as a proposition, that the Tribunal took no account of five matters. Firstly, that the respondent had been made redundant from ICI and had been paid redundancy entitlements in 1995. Secondly, that he knew he was to be "employed" (we use the word "employed" because that is the word used in the skeleton argument) by an agency which was providing pool workers. Thirdly, the respondent was originally offered work from the pool for three days a week, although in fact he worked at various times between three days and full-time in any given week. Fourthly, he was dismissed by European Vinyls' foreman; and, fifthly, he was offered alternative work which he declined.
9. The decision of the Tribunal was a comprehensive one. It investigated all of the facts insofar as they appeared to be relevant. We do not believe that the fact that the respondent had been made redundant in his previous employment indicated that he was not employed by those who put him to work thereafter. We do not see why the fact that the respondent knew that he was to be employed by an agency indicates at all whether he was employed by that agency or was a self-employed person. Nor do we see why the fact that he worked different hours in any particular week indicates that he was not an employee. Many employees work different times and different hours in a week according to the demands of their employers . Nor do we see why the other two factors referred to in the skeleton argument indicate that the respondent was not an employee, or that, if they do, the Tribunal failed to consider them or any of the other points which are set out in the skeleton argument.
10. The skeleton argument goes on to contend that the Tribunal failed to consider the absence of other factors which would have supported the employee's case. For example there was no provision concerning fidelity and confidence; but the absence in a situation in which the contract of employment or for services was not wholly in writing of an expressed provision concerning fidelity and confidence does not surprise us the slightest but nor does it convey to us any indication one way or the other as to whether the respondent was an employee or had some different status. We would make the same comment about the absence of any provision for dismissal for misconduct, or the absence of a grievance procedure.
11. It is said that there was no obligation upon the respondent to accept the work offered to him. That seems to us to be an assertion which is not supported by any finding of fact to that effect; so is the assertion that there was no obligation on the appellant to provide the respondent with work.
12. Even if all these arguments were sound, it appears to us, that there were many points which the Tribunal was entitled to take into account as supportive of the conclusion that the respondent, Mr Charnley, was an employee; and we see no arguable error on the part of the Tribunal in deciding overall, on what was essentially an issue of fact, that Mr Charnley was indeed an employee. There is no arguable ground of appeal in this case and the appeal will be dismissed.