United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A CARK (of Counsel) Instructed By: Myers Lister Price 376 Palatine Road Northenden Manchester M22 4FZ
For the Respondents	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS


 


HER HONOUR JUDGE A WAKEFIELD:-

1. This is an appeal by Mrs Dorothy Billany against an interlocutory decision of an Employment Tribunal sitting at Manchester by which it was held that she was not an employee of the respondent and, therefore, was not entitled to bring a claim for constructive unfair dismissal. It was her status as Treasurer of the respondent between October 1998 and March 2000 which was in issue. The respondent has not appeared nor been represented at the hearing and we have on its behalf, in opposition to the appeal, only the contents of a letter written to this Tribunal and dated 2 November 2000 which we take into account in reaching our decision.
2. The grounds of appeal are that the Employment Tribunal failed to apply the proper tests in considering the question whether or not the appellant was an employee within the meaning of section 230(1) of the Employment Rights Act 1996 and whether it took into account an irrelevant factor, namely that the Club Treasurer was, under the Club rules, subject to annual election.
3. Neither party was legally represented at the Employment Tribunal and no authorities are cited in its decision which was promulgated on 31 August 2000 following a hearing on 16 August. Before us today, Counsel for the appellant has reminded us of the recent case of Montgomery v Johnson Underwood Ltd in which the Court of Appeal on 9 March 2001 reaffirmed the importance of mutuality of obligations and control as factors in a decision whether or not an applicant was an employee. We are also referred to the earlier decision of Mr Justice Phillips in the Employment Appeal Tribunal in the case of 102 Social Club and Institute Limited v Bickerton [1997] ICR 911 in which irrelevant factors as to employee status in a Club were said to include:-

"… that there was no written agreement, that he held an office… that he held another job, that he was elected and that he was removable by a two-thirds majority."

The Employment Tribunal in the present case referred to the Club rules but did not in terms refer to Rule 27 which, in our view, may be relevant as to the issue of the appellant's status. That Rule reads as follows:-

"The Treasurer shall be responsible for seeing that all moneys, whether received by himself, the Secretary, any other official, Steward or any other servant of the Club, are duly paid into the Club's Bank at least once a week. He shall also see that all debts of the Club are paid as directed by the Committee (except petty cash payments) by cheques signed by any two of the authorised signatories and countersigned by the Treasurer. He shall, at every regular meeting of the Committee (or more often if required) produce the Paying-in Book and Bank statements for inspection showing that the foregoing duties have been carried out.

He shall keep such accounts, documents and other papers of the Club, not otherwise kept by the Secretary, in such a manner and for such purposes as the Committee may direct."

4. Having referred to the rules of the Club and in particular to Rule 24 but not as I have said to Rule 27, the Employment Tribunal then at paragraphs 10 and 11 of the decision, set out their findings of fact and their conclusion from those facts. They said as follows:-

"In this case the matters pointing to employment were the fact that the applicant did receive a fixed weekly amount for her duties, and carried out those duties for the respondents personally. On the other hand, the respondents exercised very little control over the applicant in that her hours, which were quite short, were entirely a matter for herself, and how she carried out the duties of the Treasurer again, was matter she herself decided. The amount she received was described as an "honorarium" which in the Chambers dictionary is defined as a "voluntary fee" which is how most people would regard a payment described in such a way. She did not have a formal contract of employment and therefore there were no, for example, provisions with regard to holidays, sickness, disciplinary or grievance procedure or any other matters normally dealt with in such contracts. Furthermore, according to the rules, and the Tribunal did have to have regard to the provisions of the rules even though for various reasons they weren't always acted upon, provided that these officers should be elected annually by ballot.

It seemed to the Tribunal, balancing these various factors, that the applicant could not be regarded as an employee. An employee is not elected annually, and is not paid an honorarium, and normally has much more elaborate provisions in their contract of employment than obtained in the verbal arrangements between the applicant and the respondents. In addition, the applicant was subject to very little control by the club, her general duties were of course laid down in the rules but how she carried them out was a matter for her. She chose her own hours which were quite short and arranged for her own convenience."

It therefore appears that the Employment Tribunal may have failed properly to analyse the status of the appellant in the light of all the facts relevant to her position with the respondent and in the light of the present law. In those circumstances it would not be proper for us to substitute our views and the matter must be remitted for a fresh hearing before a differently constituted Employment Tribunal. In the light of the potential importance of the decision to clubs such as the respondent's and in the light of the many layers of case law which exist as to the difference between a contract of service and one for services, it is our hope that both parties may be legally represented when this matter is re-heard before an Employment Tribunal.