United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN DAVIES QC (One of Her Majesty's Counsel) Instructed by: Messrs Hudgell & Partners Solicitors 35/36 Market Street Woolwich London SE18 6QP
For the Respondent	No appearance or representation by or on behalf of the Respondent

SUMMARY

Contract of Employment: Definition of Employee -&- Working Time Regulations: Worker

Tribunal correct in holding that the respondent was an employee of the appellant using correct tests: control and mutuality of obligation.


 


HIS HONOUR JUDGE ANSELL

1. This is a hearing from a Decision of a tribunal heard in Hull. The Decision was sent to the parties on 10 February 2005 and the Tribunal awarded a sum of £702.00 by way of a redundancy payment. This full hearing came by way of leave from Mr Justice Rimer, sitting in chambers, and he determined that the issue was whether the Tribunal were wrong in holding that the employee, Mrs Parkes, today's Respondent, was an employee of the Appellant, Mrs Watts trading as Ten Gables Nursing Home.
2. We comment immediately at the outset that this is now the fifth hearing in this spate of litigation which Mrs Parkes has attended and Mrs Watts has not. The background history of the matter is that the Tribunal's findings are that Mrs Parkes was employed as a care assistant from 18 June 1998 until 24 August 2004 when the nursing home at which she worked part-time was closed down. The Tribunal found that she was, throughout that period, an employee. They noted that on her contract, she had holiday entitlement, she had a right to notice and although minimum hours were not guaranteed, there was a rota prepared to which she had to adhere and, indeed at times, cover for others who were on holiday or who were sick. There was also a disciplinary and grievance procedure and her salary was paid, when she did reach the tax threshold, with deduction of tax and National Insurance. The Tribunal found, importantly, that when at work she was under the control of Mrs Watts, her employer. She normally worked certain hours a week and they found that the Respondent was required to provide her with work and that, accordingly, there was mutuality of obligation.
3. When she was given four weeks' notice to expire on 24 August, following her dismissal, she first applied to the County Court to seek redundancy payment and also outstanding holiday pay and notice money that she was owed. An application was made that the redundancy payment should be dealt with by an employment tribunal, but Mrs Parkes did obtain a judgment in the County Court in relation to her two other claims. Mrs Watts did not appear at the County Court. I am told that she applied to set aside the judgment and did not appear at that hearing.
4. As I have indicated already, she did not appear when the case was dealt with by the Chairman, Mr Hepworth, at the January 2005 hearing. Mrs Watts had put in written submissions in which she maintained that Mrs Parkes was no longer an employee, that she had in fact become, at her own wish, more of a casual employee working as and when she wanted and that had started from either 1999 or 2000. That was investigated within the tribunal hearing and was rejected by the Tribunal Chairman although, of course, he did not have the benefit of hearing Mrs Watts, on oath, giving evidence to put her side of the story. In particular, the Chairman investigated two gaps in employment: between May and August 2000, Mrs Parkes did not work because work was not available but the Chairman found that this was simply a temporary cessation of work within the meaning of section 212, subsection (3)(b) of the Employment Rights Act 1996. There was a further four week period in 2002 when Mrs Parkes had to look after her sick mother and the Tribunal Chairman found that this was effectively unpaid leave. His conclusion therefore was that there was no gap in employment and there was continuity. His conclusion was that, taking a multi-factor approach, this was clearly a situation of employer and employee. He referred to control in terms of duties and discipline; that Mrs Parkes was part of the organisation; that the economic reality was one of employer and employee; there was mutuality of obligation and there were items such as deduction of tax and National Insurance and overall, he concluded that there was a relationship of employer-employee and that there was continuity of employment since 1998.
5. The grounds of appeal stated that the Tribunal failed to adopt a proper multi-factor approach and, in particular, focused on what Mrs Watts claimed was a difference in the approach to work from around 1999 from which time, she claimed that the employee had become, as it were, casual labour, wanting to come and go as she pleased. The appeal also sought to put in additional evidence by way of a letter suggesting that she was working casually as a carer for another organisation during the year 2000. It seems to me that that evidence could, and more properly should, have been submitted before the Tribunal and there was no reason that it could not have been put to them; it was available to the Tribunal and was not put in by the employer. The appeal contended that the employee was not available for work when required, but only worked when she wanted to. It seems to me that these matters were all matters of evidence that could have properly been canvassed before the Tribunal if Mrs Watts had chosen to attend. In so far as they were raised by her in her original reply before the Tribunal, I am satisfied that the Chairman looked into them yet came to the conclusion that there was still a relationship of employer and employee. For what it is worth, Mrs Parkes' written reply to this appeal makes it clear that she always worked a minimum of two afternoon shifts. At one stage, she was working longer but had to cut back on that because of her mother's illness, but she says, at the very least, there were two afternoons that she always worked, sometimes working more days than that and that she attended work and when required to do so on the rota that was prepared by her employer. She also notes that, contrary to the assertion made by the employer that no holiday pay was ever paid, in fact holiday pay was indeed paid in 2002 and from what she has told me, we obviously know that the County Court ordered further holiday pay when she took proceedings before them following termination of her employment.
6. I am quite satisfied that within the limits set by the non-attendance of Mrs Watts before the Tribunal and the limitation that that obviously brought with it, in the Chairman not having the ability to cross-examine Mrs Watts about these matters, that the Chairman properly identified what were the relevant tests in this case. The three main tests that are well known are an obligation to provide work personally and mutuality of obligation between employer and employee and an element of control by a person who is regarded as the employer or master. The matters were all investigated and it seems to me that the Chairman came to the correct view in terms of finding that Mrs Parkes was an employee, distinguishing the situation from mere casual labour as identified in the authority of Carmichael v National Power [2000] IRLR 43. Just to complete the history of the matter, by way of conclusion, this hearing was originally fixed for 16 June; Mrs Parkes wrote a letter claiming that it was her intention to attend and be represented but said that neither she nor her representative were able to attend that hearing. That date was vacated; this date was fixed and not unsurprisingly, she then wrote in saying that she was not going to attend this hearing. This is hearing number 5 that she has failed to attend.
7. This appeal is dismissed and it seems to me that this is a case where the Appellant has behaved unreasonably in relation to this appeal. She has shown unreasonable conduct in the conduct of this litigation and I see no reason why Mrs Parkes should not receive her out of pocket expenses in coming to this hearing. She has given me a figure of £128.00 comprising £50.00 worth of petrol, a hotel bill of £46.00, taxi of £10.00, parking of £22.00 and I therefore award a figure of £128.00 costs to be paid by the Appellant in addition to the redundancy money that has already been awarded.