United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S M NOWAK THE APPELLANT IN PERSON


 


JUDGE D M LEVY QC:

1. On a date which is difficult to discern from the document itself ("the IT1"), Mr S.M. Nowak ("the Appellant") complained that he had been unfairly dismissed by T & S Stores Limited ("the Respondent") by whom he said he had been employed from July 1982 until 1 July 2000.
2. In answer to the IT1, the IT3 of the Respondent stated, by a document dated 21 September 2000, that he was self-employed and not an employee and gave various particulars of why that was so.
3. The issue fell to be tried by an Employment Tribunal sitting in Manchester on 30 March 2001. The Extended Reasons were promulgated on 18 July 2001. The unanimous decision of the Tribunal was that the Appellant was not an employee of the Respondent and his application of unfair dismissal was dismissed.
4. From that decision the Appellant appealed by a Notice of Appeal dated 18 May 2001. Today we are hearing the usual preliminary ex parte application of his appeal. The Appellant is representing himself, as he did below, although the decision does not show that. In parenthesis it is always helpful if the first page of Extended Reasons sets out the representation of the parties. It is apparent from the four corners of the first page of the Extended Reasons that Counsel appeared for the Respondent. The Appellant has had the opportunity, so helpfully provided under the ELAAS Scheme to litigants in person appearing on ex parte applications, to discuss his appeal with an ELAAS representative but wishes to present his appeal himself.
5. The simple point taken by the Respondent below was by reference to Express & Echo Publications Ltd v Tanton [1999] IRLR 367. In that case the Court of Appeal overturned the holding of an Employment Tribunal and the EAT and in the quotation in paragraph 1 of the Extended Reasons said:-

"Where a person who works for another is not required to perform his services personally, as a matter of law, the relationship between the worker and the person for whom he works is not that of employer and employee. A right to provide a substitute is inherently inconsistent with the existence of a contract of employment."

The Extended Reasons continued:-

"Furthermore the judgment went on to indicate that a contract of employment involves mutual trust and confidence and a requirement to personal service was essential in order to ensure that obligation could exist between an employer and an employee."

6. Paragraph 2 of the Extended Reasons set out many indications as to why the Appellant in this case was an employee and not an employer. The point taken by the Appellant is that the Tribunal failed to have regard to a decision of the EAT in McFarlane & Another v Glasgow City Council [2001] IRLR 7, the volume being published on 1 January 2001 which suggested that Tribunals should not rely extensively or only on the decision in the Express & Echo Publications Limited case.
7. We have considered that decision and we have considered the submissions of the Appellant. That case was not cited below but we are satisfied that if it had been cited, the facts as found in paragraph 2 of the Extended Reasons would have led the Tribunal to reach the same decision as it did on the facts which were before it on that occasion.
8. In the circumstances, we have also considered all other matters which the Appellant has raised in his written skeleton argument and his submissions which he has politely put before us. At the end of the day, however, we are satisfied that the decision which the Employment Tribunal reached was the right one and there is no hope of success in this appeal if it goes further.
9. In those circumstances we dismiss it at this stage.