United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS M PLIMMER (of Counsel) Instructed by: Messrs Myers Lister Price Solicitors 5 & 7 Market Street Altrincham Cheshire WA14 1AR
For the Respondent	MR R WHITE (of Counsel) Instructed by: First Assist Group Ltd Employment Services Division Marshall's Court Marshall's Road Sutton Surrey


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the Decision of an Employment Tribunal sitting at Manchester on 11 September 2002. The Decision was sent to the parties and entered in the Register on 9 October 2002. The Chairman was Mr J D Brain. The unanimous Decision of the Tribunal was that the application for unfair dismissal be dismissed as the Applicant was not an employee of the Respondent.
2. The matter first came before a different Tribunal in Manchester on 16 August 2000. That Tribunal decided as a preliminary issue that the Applicant's case be dismissed because she was not an employee of the Respondent. Neither party was legally represented at that Tribunal hearing. The Appellant appealed against that Decision and the matter came before a different division of the Employment Appeal Tribunal on 30 April 2002. On that occasion the Appellant was represented by Counsel, but there was no appearance or representation on behalf of the Respondent. The Employment Appeal Tribunal allowed the appeal and remitted the case for re-hearing at a different Employment Tribunal in Manchester. In a short judgment, Her Honour Judge Anne Wakefield pointed out that that Employment Tribunal had failed to refer to any authorities, and in particular, Montgomery -v- Johnson Underwood Ltd [2001] IRLR 269 and 102 Social Club and Institute Ltd -v- Bickerton [1997] ICR 911, which were relevant authorities.

The Employment Tribunal Decision

3. The Employment Tribunal heard evidence from the Appellant and from Mr Kenneth Shenton, who was a former Chairman of the Respondent's management committee. On this occasion, both parties were represented by Counsel, who referred the Employment Tribunal to the authorities referred to above.
4. In paragraph 4 of its Decision, the Tribunal made the following findings of fact:

"The Tribunal found the following facts:

(i) The respondent holds an Annual General Meeting in or around February of each year.

(ii) At the 1998 AGM a new secretary and treasurer were appointed. The secretary resigned and in June 1998 the applicant volunteered to replace him. Then in September 1998 the treasurer resigned. The applicant, having had some experience in accountancy matters, stepped forward and volunteered to undertake the treasurer's job.

(iii) Until the 1999 AGM, therefore, the applicant fulfilled the role of treasurer and secretary. At the 1999 AGM, the applicant was nominated to continue as treasurer and secretary and this nomination was confirmed.

(iv) Mr Shenton was appointed Chairman following the death of the previous incumbent. Mr Shenton's appointment took place in September 1999. Mr Shenton was concerned that the applicant should not continue in both roles indefinitely and in February 2000 he persuaded Mr Roger Leach to take over as secretary with the applicant continuing in the role of treasurer.

(v) At the time of the applicant's appointment to both roles, each carried an honorarium of £25 each per week. At a meeting of the Committee of 13 September 1999 the applicant persuaded the Committee to approve a resolution suggested by her that the treasurer's honorarium be £35 per week and the secretary's £15 per week.

(vi) At the AGM held in February 2000, Mr Leach's nomination as secretary was confirmed and the applicant's nomination as treasurer was accepted.

(vii) At the monthly meeting of the Committee held in March 2000, there was a discussion about the honoraria. A resolution was adopted whereby the honorarium for the two roles should revert to £25 per week each.

(viii) The applicant resigned her position but continued to fulfil the role of the treasurer until a replacement was found in May 2000.

(ix) The applicant therefore brings a claim for unfair dismissal arguing that the respondent was in fundamental breach of contract by reducing her payment from £35 to £25 per week. In order to succeed in a claim for unfair dismissal she must establish that she was an employee of the respondent.

(x) The respondent is a members club and its constitution is set out in its rules. The rules which pertained at the material time date from 1981.

(xi) It is necessary to consider certain provisions of the rules in order to assist in the determination of the applicant's status.

(xii) Rule 20 provides as follows:-

"The officers of the Club shall consist of four Trustees who shall be elected according to Rule 26, a President, 25 Vice-Presidents, a Chairman (who shall be Chairman of the Committee in which he shall have a second or casting vote) a Treasurer and a Secretary who shall remain in office until their successors are elected and shall be elected annually by ballot in the week proceeding to the Annual General Meeting and at the end of that term they shall be eligible for re-election."

(xiii) Rule 24 provides as follows:-

(i) "The Officers and Committeemen shall receive such honorarium as the Committee or a General Meeting shall from time to time determine.

ii) [ This need not be recited ]

iii) In the event of the person being appointed secretary and receiving a fixed salary such person shall not be an ordinary member of the Club, but the Committee shall have power to direct that he may be admitted to the Club premises and that intoxicating liquor may be supplied to him by or on behalf of the Club for consumption on the premises.

A written contract of service shall be sufficient evidence of his appointment under this section and the terms thereof shall be substituted for all provisions in these rules relating to the election, term of office, retirement and dismissal from office and similar matters relating to the Secretary.

(xiv) Rule 27 sets out the duties of the treasurer. This rule is fully recited in the decision of the Employment Appeal Tribunal and we do not think needs to be repeated in this decision.

(xv) The applicant did not pay any subscriptions from the time that she was appointed as secretary and gave evidence that her membership card had the word "secretary" and "treasurer" written upon it. It was conceded by the respondent that the applicant was not a member but was allowed to use the facilities of the Club."

The Tribunal go on to record the submissions on behalf of both parties: paragraphs 5 - 7.

In paragraphs 8 - 15 it records its decision in the following way:

"8 Although the arguments are finely balanced the Tribunal is unanimously of the view that the applicant was not an employee of the respondent but rather was an office holder.

9. We have given very careful consideration to the decision of the Employment Appeal Tribunal in the case of 102 Social Club. We consider there to be a significant distinguishing factor between that case and the present.

10. In 102 Social Club, there would appear to be no distinction between the method of appointment of officers on the one hand and those who could be said to be genuine employees on the other. The rules of 102 Social Club set out at pages 913 to 915 of the case report drew no distinction between the two situations.

11 In the present case however there appears to be a clear distinction between the appointment of officers and committeemen on the other hand and the appointment of a secretary on a fixed salary on the other. In the latter case, Rule 24(3) comes into play, a written contract of service is furnished and, as we highlighted earlier, the rules relating to the election, termination of office, retirement and dismissal of officers do not apply and the terms of the contract of service shall prevail. We also note that Rule 29 provides that the appointment and dismissal of the Secretary as appointed in accordance with Rule 24(3), the steward and all of the club servants shall be vested solely in the Committee.

12 Putting it another way, the appointment of officers is governed by ballot and the appointment of employees or servants is governed by contract. The Tribunal considers this to be the key consideration and fatal to the applicant's contention that she is an employee and not an officer.

13 Of course, we must concentrate upon the applicant's position as treasurer and not secretary and she had resigned her position as secretary prior to March 2000 in any event. Nevertheless, it is clear that she was not appointed as a servant or employee of the respondent but rather as an officer and subject to annual ballot accordingly.

14 As we read the decision of the Employment Appeal Tribunal in 102 Social Club, that the secretary's position could be terminated by a two-thirds majority was identified as an irrelevant consideration was because there was no distinction between the method of termination of officers on the one hand and employees on the other. However in this case we feel that it is the central consideration and determinative of our decision.

15 Several other factors, we feel, determine the applicant's status:-

(i) There was a considerable amount of flexibility as to when, where and how she carried out her duties as treasurer. Although taking Mrs Billany's point that ultimately she was answerable to the Committee, there was a high degree of flexibility, and indeed she did not need anyone's permission to go on holiday.

ii) Prior to February 2000 AGM, the applicant posted nominations for the positions of secretary and treasurer. This is inconsistent with her contention that she was an employee.

iii) The payment to the treasurer and secretary, although not described as an honorarium, are shown separately in the Club's accounts from wages and salaries."

Notice of Appeal

5. The Notice of Appeal and the Appellant's submissions before us essentially argue two points:-

(a) that the Tribunal failed to apply the tests for employment contained in 102 Social Club and Institute -v- Bickerton and by not doing so have taken into account two irrelevant matters, namely that no written contract existed and that appointment to the post of treasurer was by ballot, and

(b) that the Tribunal had failed to the appropriate tests for employment set out in Ready Mixed Concrete (South East) Ltd -v- Minister of Pensions [1968] 2QB 497 and Montgomery -v- Johnson Underwood. In particular it was alleged that the Tribunal wrongly considered the issue of control and other factors.

The Employment Appeal Tribunal Decision

6. In 102 Social Club and Institute Ltd -v- Bickerton the headnote reads as follows:

"The officers of the club consisted of the president, vice-president, treasurer and secretary. All officers were elected by ballot yearly except the secretary, who, having been elected, remained in office during the pleasure of the club, but, like the other officers, he could be removed at any time provided two-thirds of the members at a special meeting voted for his removal. Rule 20(1) of the club's rule provided that the officers "shall receive such honorarium, if any, and in the case of the secretary such salary, as ……. may from time to time be determined" Under the rule, the secretary received £225 a year, which he described as an honorarium.

The employee, who was the club's steward, made a complaint to the Industrial Tribunal that he had been unfairly dismissed. On the preliminary issue whether the complainant was excluded by paragraph 9(1)(a) of Schedule 1 to the Trade Union and Labour Relations Act 1974 because the club employed less that four people, the industrial tribunal held that the secretary of the club received a salary under the Rules and that, the secretary being an employee, the club employed four people. Paragraph 9(1)(a) of the Act did not apply.

On the club's appeal:-

Held, allowing the appeal, that rule 20(1) was to be construed permitting the club to pay its secretary either a salary or an honorarium; that, accordingly, the industrial tribunal should have considered the question whether the secretary in his capacity as an office-holder was merely a member of the club who received an honorarium for the work he did for the club or whether he rendered the services to the club as an employee in return for the payment of a salary and, therefore, the case would be remitted for a tribunal to determine that question."

At pages 919D - 920 D, Mr Justice Philips said this:

"Returning to the facts of the present case, it seems to us in the light of the authorities, and the arguments upon the hearing of the appeal, that the main question is: was the secretary merely a member of the club who had done extra work for it and received, by virtue of his office, a payment as a solatium for the inconvenience; or was he a member who had agreed to become the paid employee of the club? We consider that in answering this question the important pointers are these:

(1) The payment made to the secretary; was it an honorarium (Shorter Oxford English Dictionary (first meaning) "an honorary reward") or was it a salary? In Rogers v.Booth [1937] 2 All ER 751, 755, Sir Wilfred Greene M.R said of the Salvation Army officer who had claimed under the Workmen's Compensation Act:

"The circumstances that a monetary sum is paid to officers who enter into this relationship is, in my opinion, quite insufficient to change the relationship from what it otherwise would be. It is quite obvious that, if officers are devoting the whole of their lives to this service, the Army would make provision to maintain them, and that in effect does. But that does not mean that the sum which is paid has any similarity to wages or salary, or any payment given contractually for services given or for services rendered. It is a maintenance payment, to enable them to carry on the work that they have undertaken. It appears to me, therefore, that the appellant cannot establish, not merely a contract of service, but also any contractual relationship at all which could possibly become a contract of service or be a contract of service, and in my opinion, the appeal fails on that ground."

So the question is whether the payment was made contractually for the services and whether the services were rendered in return for the payment, or whether it was a mere grant or solatium.

(2) The tribunal may wish to consider whether the payment was fixed in advance, possibly on a periodical basis, or whether it was voted at the end of the year in token of the members' work. The former arrangement would favour the view that the payment was a salary, the latter that it was not: though neither would be conclusive.

(3) It is material to see whether the arrangements confer upon the secretary a right to payment or whether what is paid is a mere bounty.

(4) The size of the payment.

(5) Whether he is exercising the functions of an independent office (somewhat in the way that a curate or a police officer does) or is subject to the control and orders of the club.

(6) The extent and weight of the duties performed; the smaller they are the less likely he is to be an employee.

(7) The description given to the payment in the minute or resolution authorising it, and its treatment in the accounts, and for tax and national insurance purposes.

Upon the hearing of the appeal numerous matters were canvassed as being relevant to the question whether the secretary was or was not an employee. For completeness we should say that we consider the following factors to be of no relevance: that he was a member; that there was no written agreement; that he held an office; that he had another job; that he was elected, and that he was removable by a two-thirds majority."

7. In the present case the Tribunal identified a significant respect in which the club rules in Bickerton differ from the present case. In Bickerton there appears to be no distinction in the rules as to the treatment of officers and employees. In the case of the Knutsford Club there are differences: see Decision paragraphs 9 - 14. In the present case, how the Appellant was dealt with was therefore relevant and the fact that she had no written contract of employment and was appointed by ballot are both factors which add to the picture of her not being an employee, and to which the Employment Tribunal was entitled to have regard. Now we are told that the appeal may have consequences for other clubs, but we make it clear that we are deciding this case upon the rule book of the Knutsford Conservative Club. Other clubs may have different rule books and our decision should not be taken as having any implication or necessary result where the rule book is different. The effect of the finding of the Tribunal is that even if mutuality and control are satisfied, then the Tribunal was entitled to take account of other terms which are inconsistent with the relationship of a contract of service. Furthermore, we would add that a failure to mechanically apply the factors mentioned by Mr Justice Philips in the Bickerton case cannot mean that the Tribunal made an error of law. This was guidance only and, as Mr Justice Philips makes clear, that guidance is given on the facts of that case on: page 919D.
8. Turning to the second ground of appeal, it is clear from the Tribunal Decision that it was specifically referred to Montgomery -v- Johnson Underwood and we are told that both Counsel referred to it and the Tribunal were provided with a copy at the hearing. In that case, the Court of Appeal specifically approved the guidance of McKenna J in Ready Mixed Concrete (South East) Ltd -v- Minister of Pensions and National Insurance and pointed out that that guidance itself had been approved by the Lord Chancellor in Carmichael -v- National Power PLC [2000] IRLR 43 HL. It is only necessary for us to quote paragraphs 18 - 19 of the decision of the Court of Appeal in Montgomery where Mr Justice Buckley (giving the main judgment of the Court of Appeal) said this:

"I consider the safest starting point to be the oft-quoted passage of McKenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515:

18 I must now consider what is meant by a contract of service. A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.'

19 McKenna J made plain that provided (i) and (ii) are present (iii) requires that all the terms of the agreement are to be considered before the question as to the existence of a contract of service can be answered. As to (ii) he had well in mind that the early legal concept of control as including control over how the work should be done was relevant but not essential. Society has provided many examples from masters of vessals and surgeons to research scientists and technology experts, where such direct control is absent. In many cases the employer or controlling management may have no more than a very general idea of how the work is done and no inclination directly to interfere with it. However, some sufficient framework of control must surely exist. A contractual relationship concerning work is to be carried out in which the one party has no control over the other could not sensibly be called a contract of employment. McKenna J cited a passage from the judgment of Dixon J in Humberstone v Northern Timber Mills [1949] 79 CLR 389 from which I take the first few lines only:

'The question is not whether in practice the work was in fact done subject to a direction and control exercised by any actual supervision or whether any actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions'. "

9. It is therefore quite clear that the Employment Tribunal considered the relevant authorities and applied them in this case. As Mr White submitted, the three factors identified by McKenna J are links in a chain which go to show whether or not the Appellant is an employee. That chain can be broken at any point. In this particular case the Employment Tribunal considered the three factors in a different order: Decision paragraph 8.
10. In paragraph 12 of the Decision the Employment Tribunal say that the chain was broken because under the Club rules the appointment of officers is governed by ballot and the appointment of employees or servants is governed by contract. In our judgment, the Employment Tribunal is entitled to make this decision: there is no error of law here.
11. In the alternative, the Employment Tribunal also refers to the three other factors mentioned in paragraph 25 of the Decision. Each of those factors is a relevant factor which the Employment Tribunal is entitled to take into account. For these reasons the appeal is dismissed.

Respondent's application for costs

12. Mr White applied for an order for costs against the Appellant if he was successful in the appeal. The grounds for the application were that:

(1) the appeal was hopeless of itself;

(2) it pursued unreasonably in the face of the Respondent's offer dated 10 September 2002 to settle the Appellant's claim for £500;

(3) the Appellant's behaviour during the course of the appeal was unreasonable. In particular he relied on the fact that the Appellant had personally:

(a) applied for a second review alleging perjury on the part of Mr Shenton, and

(b) reported the Respondent to the Police, alleging an attempt to pervert the course of justice.

Nothing came of either of these actions of the Respondent

13. In reply, Ms Plimmer argued that there was an arguable case and in particular relied upon the fact that she addressed us for some one and a half hours. She referred also to the strong feelings of the Appellant and her desire for a finding by us that she had been treated unfairly. She referred to the fact that Rule 34(1) of the Employment Appeal Tribunal Regulations only applied to conduct within the proceedings. The conduct complained of by the Respondent in relation to the police was nothing to do with this appeal.
14. We have carefully considered the submissions made by both parties and refuse the application for costs. In our view there was an arguable case for the Appellant to put before the Employment Appeal Tribunal. The history of the case set out in this judgment clearly shows that. It cannot be said that the Decision of the Employment Tribunal was so obviously right that any appeal was hopeless. On the facts of the case (itself a test case) there was considerable debate. Neither do we consider that the Appellant's refusal of the Respondent's offer to settle the appeal for £500 is itself unreasonable. Although the amount of compensation is a material factor for us to take into account, the case also involved the issue of whether or not the Appellant had been unfairly dismissed. Finally, the complaint by Mrs Billany to the police about alleged perjury is outside the scope of Regulation 34(1).