United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the First Appellant	MRS N WHITTAKER (Representative) Free Representation United 6th floor 289-293 High Holborn London WC1V 7HZ
For the 1st Respondent	MR J BODDY (of Counsel) Instructed by: London Borough of Camden Legal Services Town Hall Judd Street London WC1H 9LP
For the 2nd Respondent	MR S BIRKS (Representative) Supporta plc 3 Kingmaker Court of Appeal Warwick Technology Park Warwick CV34 6UT


 


SUMMARY

UNFAIR DISMISSAL

Exclusions including worker/jurisdiction

CONTRACT OF EMPLOYMENT

Whether established

Wrongful dismissal

Triangular relationship. ET finding that worker was employed by neither agency nor end-user. Appeal against end-user finding dismissed JAMES (EAT and CA) applied.

HIS HONOUR JUDGE PETER CLARK

Introduction

1. The question in this appeal concerns the employment status of an agency worker post-James v Greenwich Council [2008] IRLR 302 in the Court of Appeal. The parties are Mrs Beck, Claimant, and (1) London Borough of Camden, (Camden), and (2) Supporta Care Ltd, (Supporta) Respondents. An Employment Tribunal sitting at London (Central) chaired by Employment Judge G. Solomons held, in a judgment dated 21 May 2007, for which Reasons were given on 20 June 2007, that the Claimant was an employee of neither Respondent. Against the finding that she was not an employee of Camden, the Claimant appeals with the permission of Elias P on paper; there is no challenge to the Employment Tribunal's ruling that she was not an employee of Supporta. The result of the Employment Tribunal's judgment was that the Claimant's claims of unfair dismissal and breach of contract, both dependent on employee status, failed and were dismissed.

Factual background

2. Camden operated an in-house homecare service to residents in the borough who required special assistance in the form of what used to be known as home help. In addition to permanent employees Camden engaged agency workers to carry out home help duties through approved agencies. The Claimant first worked for Camden in this capacity in October 1999. Her services were then supplied by an agency called Reliance Care.
3. It was the Claimant's evidence, not disputed by the Respondents, and not specifically referred to in the Employment Tribunal's Reasons, that after about two weeks of working for Camden her then line manager, Christine Weeks, said that they were impressed with her services. Ms Weeks then gave the Claimant her own rota and said that she was going to do the same clients for the Intensive Home Care Service (IHCS). She continued to work for the IHCS until her termination on or around 24 February 2006. Later Ms Weeks recommended that the Claimant move from Reliance Care to Central Care because the latter agency provided more workers for Camden. She followed that advice and changed agencies. Her work for Camden was not affected.
4. We take that account from the Claimant's witness statement, paragraphs 4 - 5, (Bundle p.71) which was before the Employment Tribunal. It is evidence, which lies at the heart of this appeal.
5. Central Care lost its contract with Camden and in September 2003 the Claimant signed a contract of engagement with Wrencare Limited, which later changed its name to Supporta, the second Respondent. That document, signed by the Claimant and dated 1 August 2003, is headed "Terms of Engagement - Contract for Services". It is in fairly standard form, emphasising that the Claimant is not an employee of the agency.
6. The Employment Tribunal found that the Claimant worked only for Camden over the 6½ year period, October 1999 until February 2006. Her average hours of work went up to about 40 per week during the last 5 months of that period.
7. In October 2005 she applied to Camden for a position as an in-house support worker. She received a provisional offer for employment subject to a Criminal Records Office check (the work necessarily involved visiting vulnerable residents in their homes). It seems that she had, the previous month, received a police caution in relation to an assault. Further an anonymous letter was received by Camden alleging that the Claimant had been revealing information about service users to potential criminals. An investigation was launched into that allegation: the provisional offer of employment was withdrawn by Camden in the light of the police caution. The upshot was that on 23 or 24 February 2006 the Claimant was told by Mr Rangelov, Camden's Operations Manager for the IHCS, that she could no longer work for Camden. She has not done so since then.

The Employment Tribunal Decision

8. The development of employment law has been marked by spurts of interest in hot topics eventually leading to a settled outcome. So it has been with the implied contract of employment between worker and end-user in the now familiar triangular relationship between worker, agency, and end-user. The implied contract first came to prominence in the judgments of Mummery and Sedley LJJ in Dacas v Brook Street Bureau (UK) Ltd [2004] IRLR 358. That possibility was then endorsed by another division of the Court of Appeal on the particular facts of Cable & Wireless Plc v Muscat [2006] ICR 975. That case emphasised the test of necessity before implying such a contract. See The Aramis [1989] 1 Lloyds Report 213.
9. The task then facing employment tribunals and this Employment Appeal Tribunal lay in spotting cases on their facts where that test was satisfied. EAT decisions where it was held that no implied contract existed, including the leading case of James v Greenwich Council [2007] ICR 577, Elias P presiding, and two cases in which I gave judgment, Heatherwood and Wexham Park Hospitals NHS Trust v Kulubowila ...UKEAT 0633/06/LA 29 March 2007) and Astbury v Gist Ltd (UKEAT 619/06/DA 28 March 2007), a case in which permission to appeal was refused by the Court of Appeal at an oral hearing held on 24 July 2007 ([2007] EWCA Civ 1380) proliferated. Other decisions of the EAT are referred to in the judgment of Mummery LJ in James, paragraph 4.
10. As appears from paragraph 18 of the present Employment Tribunal's judgment under appeal, following an oral hearing on 17-18 October and 1 November 2006, the Tribunal became aware of James in the EAT, as well as Kulubowila and Astbury, and invited submissions from the parties on the effect of those cases and then took them into account in determining that Mrs Beck was employed by neither Respondent.
11. The present appeal against that judgment was initially stayed by the President pending the Court of Appeal decision in James. That judgment having been delivered on 5 February 2008, upholding the EAT decision below, this appeal was then permitted to proceed to a full hearing, again by the President.

The Appeal

12. The principal ground of appeal advanced by Mrs Whittaker on behalf of the Claimant is that the Employment Tribunal failed to make a finding as to whether the words and conduct of Ms Weeks early in the Claimant's service at Camden satisfied the test in James for implying a contract of employment between those parties. In support of that submission Mrs Whittaker also relies on my judgment in Harlow District Council v O'Mahony and APS Recruitment ...UKEAT 144/07/LA 21 June 2007) in which a finding by the Employment Tribunal that there was to be implied a contract of employment between worker and end-user was upheld.
13. It is submitted, on the facts of the present case, that in giving the Claimant her own rota, Ms Weeks on behalf of Camden thereby created the necessary mutuality of obligation which, taken with the degree of control exercised by Camden over the Claimant's work, gave rise to a contract of employment. In finding otherwise, the Tribunal, it is said, misunderstood the test propounded by the President in James, particularly at paragraph 58 of his judgment, which approach was expressly endorsed by Mummery LJ in the Court of Appeal; see paragraph 50.
14. We cannot accept that submission. First, we are entirely satisfied that the Employment Tribunal had in mind the President's guidance at paragraph 58 in James; it is set out at paragraphs 19.3 and 19.4 of the Tribunal's reasons. Secondly, the Tribunal took into account the party's written submissions, called for post-James in the EAT and the rota point was clearly made by Mrs Whittaker in her submissions. Thirdly, the Tribunal refer to the fact that the Claimant had her own rota of clients at paragraph 11 of their reasons. Fourthly, the Tribunal, in our judgment, reached a permissible finding at paragraph 22 of their reasons, correctly applying the guidance in James, that the express agency arrangement which was not a sham, accurately represented the actual relationship between the parties. They reached their conclusion not simply because the agency agreement was not a sham, as Mrs Whittaker has submitted, but looking also at the absence of mutuality of obligations; a finding supported by the agreed note of cross-examination of the Claimant, which appears at page 143 of our bundle.
15. Ultimately, the question of the Employment Tribunal was whether it was necessary to imply a contract of employment between the Claimant and Camden. They found, at paragraph 24 of their reasons, that the affairs of the various parties in the triangular relationship were as consistent at least with the express arrangement as the third contract which they were asked by the Claimant to imply. That permissible finding, in our view, negatives the implied contract; see James; per Elias P, paragraph 35; and Mummery LJ at paragraph 24 of his judgment in the Court of Appeal.
16. In short, we are not persuaded by Mrs Whittaker that the Tribunal overlooked the submission that by words and conduct (Ms Weeks placing the Claimant on her own rota after two weeks) Camden impliedly converted the original agency arrangement with the Claimant to one of a contract of service. That is really the nub of the appeal. Looking more broadly at the facts it seems to us that the Tribunal were entitled to find a genuine agency arrangement. There was no room to imply a third contract over and above the express contract between worker and agency and agency and end-user.
17. Finally, we would respectfully endorse the observations of Mummery LJ at paragraph 55 of James as to the very limited scope for successful appeals where the correct test of necessity has been applied by the Employment Tribunal as, in our view, it was in this case.

Conclusion

18. Accordingly, this appeal fails and is dismissed.