United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS N BRAGANZA (of Counsel) Instructed by: Messrs Burton & Co Solicitors Stonebow Lincoln LN2 1DA
For the First Respondents For the Second Respondents	MR A TOLLEY (of Counsel) Instructed by: Office of the Solicitor Dept of Social Security New Court 48 Carey Street London WC2A 2LS MR S DEVONSHIRE (of Counsel) Instructed by: Messrs Wedlake Bell Solicitors 16 Bedford Street Covent Garden London WC2E 9LF


 


JUDGE D PUGSLEY

1. The Industrial Tribunal, sitting in Nottingham, had to consider a case of whether or not a Respondent was properly joined. The Applicant, who is of Asian origin, was an inspector employed by the Ministry of Agriculture, Fisheries and Food, Executive Agency - the Meat Hygiene Service to inspect a turkey slaughterhouse run by Lincs Turkeys Limited, the Second Respondent.
2. He worked there under the statutory regulations and he was provided, by the Second Respondent, with a small office. According to the findings of fact made by the Tribunal, the laundry was done by an outside contractor, and paid for by the Ministry. Save for the occasional use of the telephone and office equipment, within the small office, he was very much an independent inspector at the slaughterhouse.
3. The Tribunal's Decision is commendably short, and the facts it found may be reiterated thus, taking the picture up from paragraph 2 of their Decision.

"2 This was not in the usual category of a contract worker who is employed by an employment agency and instructed to work packing turkeys. That person of course will be under the instruction and control of the line managers of Lincs Turkey Limited. That is a classic contractor worker scenario. Here, however, almost by definition, Lincs Turkey Limited had no control of the Applicant. It was just giving him houseroom upon the basis that statute demanded it do so. To whom did he report? His line manager was not the management of Lincs Turkey Limited. He was instructed either by the agency itself of the Vet employed by the Ministry who attended the slaughterhouse on a daily basis.

3 The Applicant alleges that for a long period of his employment he was subjected to racial taunts by the employees of Lincs Turkey Limited. He says he complained regularly. He says it caused him distress and therefore a detriment. Eventually he says those who had been taunting him, conspired against him to arrange a complaint that had no justification. That complaint led to suspension and, eventually, dismissal by the First Respondent. He says Lincs Turkey Limited acted improperly and their employees conspired to give false evidence against him. That conspiracy was prompted by the racism of the staff at the slaughterhouse. Obviously a factual issue in the case will be the conduct of the employees of the Second Respondent. Those are under the control of Lincs Turkey Limited."

4. The Tribunal then went on to define the issue as:

"whether the allegations against the Second Respondent, made by the Applicant can be bought before us under the Act."

The Tribunal found themselves in some difficulty because they say:

" as ordinary members of an industrial jury"

they were minded to

"see at the purpose of the Act, which we take as providing protection against discrimination for those in employment"

But they directed themselves that Section 7 of the Act which says this:

"This section applies to any work for a person, the principal, which is available for doing by individual contract workers who are employed not by the principal himself but another person who supplies them under a contract made with the principal". Section 7(1) of the Act then goes on to outline the liability."

The Tribunal went on to ask itself "did a contract exist?"

5. The Tribunal, in homely language, came to the view that this was not a case where there was a contract between Meat Hygiene Services and Lincs Turkeys. In its conclusion it says

"Conclusion

11 The Employment Tribunal is a statutory creation and we must take our powers from statute. The Second Respondent only remains in this case if it falls within Section 7. On the facts of this case we find that no contract existed between the First and Second Respondents. Both Respondents were merely fulfilling the statutory obligation and had no relationship in contract. Can we extend the wording of Section 7 to include that category? Clearly this is not a case where Parliament failed to appreciate the position of the statutory official. Employment legislation generally does not cover statutory appointments. There are specific statutory exclusions. Official enforcing statutes are not a tiny overlooked minority. In many walks of life the independent inspector or official plays a part. They have a remedy in some cases against the primary employer but not against those whom they officiate over. But then neither does the shop assistant have, before us, a remedy against [a] racist customer.

12 We hold that the Second Respondent is not a principal within the meaning of Section 7. Whilst we have sympathy with the Applicant's argument for the reasons we have given, we do not think it is for us to infer into the Section something that isn't there. A higher tribunal might be able to do so - we, after a great deal of thought, cannot."

The Tribunal then go on to deal with matters of directions. We have had the benefit, and that is said with sincerity, of hearing the arguments put in very skilful arguments by Ms Nicola Braganza

6. In a nutshell, the first argument that she takes is that this is a case where it can be said that a contract can be implied, and that the fact of statutory foundation for the relationship does not, in itself, preclude there being a contractual element in the relationship between the Meat Hygiene Service and Lincs Turkeys Limited. With the greatest respect to Ms Braganza, we have to say that we simply cannot accept the submissions she has made, well made though they are.
7. We have looked at the various authorities, such as Harrods Ltd v Remick and others [1997] IRLR 9 and at the Court of Appeal decision of that authority. We have looked at the cases of Norweb plc v Dixon[1995] 1 WLR 637 Queens Bench Divison, at the Admiralty case Oceangas (Gibraltar) Ltd v Port of London Authority [1993] 2 Lloyd's Rep 292, 299 and the decision of Mr Justice Stable Read v Croydon Corporation [1938] 4 All E R 631, 647D - 649D but at the end of the day, if one may say, with great deference to the various decisions that we have been referred to, we have these starting points.
8. We accept that if one is dealing with racial discrimination, it is right, as was said by Templeman LJ in Savjani v Inland Revenue Commissioners [1981] QB 458

"The Act was brought in to remedy a very great evil. It is expressed in very wide terms, and I would be slow to find that the effect of something that is humiliatingly discriminatory in racial matters falls outside the ambit of the Act"

We accept that there are similar dicta in the Harrods case in the Court of Appeal and in Jones v Tower Boot [1997] IRLR 168 the Court of Appeal adopted a purposive construction of section 32 and gave a much broader interpretation in relation to vicarious liability.

9. Our difficulty is that we do not think that we have the power to rewrite a statute, and that is what, with great respect to Ms Braganza, however beguilingly attractive her argument on purposive construction is, we are being required to do. The very hallmark of contract is freedom. The freedom to say for whom one works, the freedom to decide whether or not you can wish to live in a particular area, what you choose to buy: these are the hallmarks of voluntary choice.
10. It is true there are areas, employment is an obvious one, the provision of housing is another, the letting of housing, where Parliament has hedged about that contract and imposed a number of mandatory limitations and avenues within which you have to operate. An employer cannot contract out of most of the employment protection legislation and none of the discriminatory legislation. A landlord cannot contract out of the regulations regulating the supply of housing and the rent thereof, save and except there are areas where positive steps can be taken. But there is a distinction, maybe not always easy to define, but clear to recognise, between the freedom to contract, albeit that it is within a statutory straitjacket, and where you have no freedom of choice.
11. "Where is the freedom" we have asked ourselves, "in this case?". The Minister decided whether or not there should be an inspector. We note that the Respondents committed the slight error of putting before the Tribunal the wrong regulations. We now have the correct regulations namely The Poultry Meat, Farmed Game Bird Meat and Rabbit Meat (Hygiene and Inspection) Regulations 1995. Under those regulations, the distinction is, with the regulations cited by the inspector, that there is not a mandatory duty to appoint an inspector, but rather under Regulation 8(4)

"in considering whether it is necessary to appoint any inspector or inspectors in relation to any licensed premises, the Minister shall have regard to the availability at those premises or any plant inspection assistant"

12. But, either you operate an abattoir according to these regulations, or you go out of business and you are prohibited from doing so. The fact you had to pay was not an irrelevance, but it does not sound in contract. The whole structure and enforcement of the regulations is penal, not compensatory, by reference to fines. Shorn of authority, the industrial members of this Tribunal would say much though they sympathise with the position that anyone may be in and is subject to torts on grounds of either gender or race, or any other form of discrimination, for that matter, you just cannot read Section 7 to say that this meat inspector was there pursuant to a contract.
13. He was there because statute required it, and the fact that the statutory framework provides a mechanism whereby it charges Lincs Turkeys Limited does not, in our view, in any way, make it any other than a statutory requirement and not a matter of freedom of contract. There was not a contract between the Meat Hygiene Service and Lincs Turkeys Limited, nor do we in the sense that we can input it, relying on the relationship. It was a statutory obligation to which Lincs Turkeys Limited had to comply.
14. We all have a freedom as to whether to buy a television or not. But if we choose to do so, we are subject to the legislation that says we have to pay for a licence. We choose to buy a car and drive it; we are subject to the legislation that says road tax excise licence has to be paid.
15. This is not a matter of contract, and of all those decisions to which we adverted, we cannot find one that, in our view, would justify saying that a statutory obligation, of this nature, gives rise to the occasion of a contract between Meat Hygiene Services and Lincs Turkeys Limited.
16. The second point was not dealt with at first instance and we have some sympathy for the perfectly courteous complaints of Ms Braganza. We just cannot see how it can be said that on any view of the matter, a meat inspector who "works for" the abattoir, namely Lincs Turkeys Ltd. The whole purpose of this legislation is to make sure the interests of the consumer is protected and that the killing is done with minimum suffering to the animals concerned. To say that the person who is supervising, as an employee of a Government Agency, the public interest of the consumer "works for" the producer is straining language beyond breaking point. The position is that this meat inspector was answerable, in the first instance to the Vet appointed by the Minister, and ultimately to the Ministry. He was there to supervise what was going on; we dismiss this appeal on the basis there was no contract between the Meat Hygiene Service and Lincs Turkeys Ltd. On the subsidiary issue we conclude that the Applicant did not "work for" Lincs Turkeys Ltd within the definition of Section 7.
17. With a sense of realism Counsel in this case were happy that we deal with the case, albeit one of the grounds of appeal was that the appeal was out of time. The Registrar of the Employment Appeal Tribunal said that the practice of this Tribunal was that time should only run from the Certificate of Correction. We exercised our discretion, without any opposition. so that we can hear the substantive merits of this case.
18. We have come to the view that it would be wrong for us to determine the issue as to whether or not the Registrar of this Tribunal is right in saying that time runs from the Certificate of Correction. We have not heard full argument. There are a number of issues, but one of the matters that concerns us is that the Chairman's capacity to alter the decision is without limit of time.
19. It would be inappropriate for us to determine the matter without full argument and in the context of this case the point is academic. We propose to draw this issue to the attention of the Registrar and to the President to determine whether a practice direction would be appropriate.
20. We do not wish to influence the future of this case which still has to be determined by the Employment Tribunal. We do note the point made by Mr Devonshire on behalf of the Second Respondents. Mr Devonshire points out that although not relevant to the disposal of this appeal the Appellant is not necessarily without remedy because he is unable to bring his case within the ambit of Section 7 of the Race Relations Act. He points out the modern approach to discrimination, as illustrated by the case of Burton v De Vere Hotels [1997] ICR 1, is sufficiently flexible to provide a remedy in the circumstances of this case.

This is not a case in which we consider it appropriate to give leave to appeal to the Court of Appeal.