United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K SONAIKE (Of Counsel) Instructed by: Messrs Irwin Mitchell Solicitors Imperial House 31 Temple Street Birmingham B2 5DB


 


MR RECORDER LUBA QC

1. This is the Preliminary Hearing of an appeal by Mr Raymond Gibney against the decision of the Bedford Employment Tribunal by which it concluded that he was not employed by the Respondent Company, Wykes Engineering Company (Rushden) Ltd. We have had the assistance today at this Preliminary Hearing of Mr Sonaike of Counsel who appears for the Appellant. He, it is, who has borne the task of seeking to satisfy us that the grounds of appeal raise an issue of law fit for consideration by the full Tribunal.
2. As we have indicated to him, we are so satisfied but we are departing from the usual practice in delivering a judgment in this case because we wish to emphasise the matter upon which we found that this particular appeal was arguable in rather difficult circumstances. This is one of those problematic cases in which an Employment Tribunal had to decide whether a particular person was an employee of a company or whether they were self employed.
3. That is an exercise which usually involves assembling on each side of the scales matters going one way and matters going the other way. The task of assembling the items on either side of the scale is vested by Parliament in the Employment Tribunal. Likewise, there is vested in the Tribunal the ultimate task of judging on which side of the scale the answer should lie. It is for the Employment Tribunal to attribute weight to each of the factors on each part of the scale.
4. It is precisely because that balancing exercises is vested in the Employment Tribunal that it is very difficult for a dissatisfied party to demonstrate at the Employment Appeal Tribunal level that there has been an error in law in the approach or conclusion of the Tribunal. In this particular case the Notice of Appeal is dated 15 January 2003. At paragraph 6 it indicates that the grounds of appeal are to be found in "documents previously lodged." In fact Mr Sonaike has rejected the contention that the grounds are to be found in some previously lodged document and instead asserts that the grounds are to be found in a simultaneously lodged document unhelpfully and misleadingly labelled 'Applicant's skeleton argument'. We have accepted from him that that document contains the grounds of the appeal of Mr Gibney. We have therefore treated that document as containing those grounds and it is on that basis that this appeal will hereafter fall to be fully considered.
5. Much of that document is an exercise seeking to demonstrate which particular factors should be attributed to the side of the scale marked 'employee' and which the Tribunal ought, accordingly, to have found conclusive of the issue. We are not persuaded by that approach at all. What has persuaded us that this appeal is arguable, or that it is arguable the Tribunal has erred in law, is a potential internal inconsistency in the Extended Reasons given by the Tribunal itself.
6. At paragraph 10, which is crucial, it is indicated by the Tribunal that it has unanimously reached the view that the Applicant was not an employee. It expresses its view, or conclusion, as being based on a "want of mutuality". In particular it concludes paragraph 10 with this statement:

"We accepted that the Applicant was free to work the hours that he chose and was free to work on contracts for another Company had he so wished."

That is very clear indicator of self employment. However, Mr Sonaike draws attention, in the grounds of appeal and in his helpful (and indeed skilful) oral argument before us, to paragraph 5(vii) of the findings of fact made by the Employment Tribunal. There they accepted that Mr Gibney "had to be there [i.e. at the workplace] at all available times. He told us that it was not unusual for him to work 60-65 hours per week." That finding would appear to suggest that he was required to be available to the Respondent Company for significant periods. That does stand in some contrast with paragraph 10.

7. This is a case which the Employment Tribunal themselves indicated had not been an easy one to determine. We are satisfied that it is arguable that the contrast between paragraph 5(vii) and paragraph 10 demonstrates that there may have been an error of law here. It is on that basis that we have been content to send this matter through to a full hearing. It may be that the other matters in the grounds of appeal lend colour or flavour to the central submission that the Tribunal's conclusion was wrong.
8. We shall therefore allow the notice of appeal to stand in full but this judgment does not in any way bind the Employment Appeal Tribunal which ultimately deals with this case to follow our approach or to give the same emphasis or treatment to the point we have specifically mentioned. On that basis this appeal will proceed to a full hearing.