United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J MACKENZIE (Solicitor) Messrs John Mackenzie Solicitors Rotherfield House 7 Fairmile Henley-on-Thames Oxfordshire RG9 2JR
For the Respondents	MS L BELL (of Counsel) Instructed by: Messrs Gordons LLP Solicitors Winterhill House Station Approach Marlow SL7 1NT


 


SUMMARY

CONTRACT OF EMPLOYMENT: Whether established

The Claimant was a part time Rugby Coach. The Employment Tribunal found that he had freely elected to be paid as an independent contractor though a limited company he acquired for the purpose, rather than on a PAYE basis. He rendered invoices subject to VAT for a gross fee for coaching services rendered by him. The E.T. found that certain factors in the relationship between the Claimant and Respondents were more consistent with employment as opposed to self employment or were neutral; these included the following; (a) the provision of a car and credit card; (b) the Claimant's autonomy in playing matters; (c) the Claimant was found to be under the Respondents' control; (d) the Claimant received holiday pay; (e) the Claimant was paid a fixed sum regardless of the number of hours he worked; (f) the Claimant worked a substantial number of hours. The ET correctly directed itself as to the law and concluded that the Claimant's course of conduct during the period in question was incompatible with his being in an employment relationship, because he had freely chosen to conduct the relationship on the basis that he was an independent contractor. The Employment Tribunal had not made an error of law and its characterisation of the relationship between the parties as not being an employment relationship could not be faulted.

HIS HONOUR JUDGE SEROTA QC

Introduction

1. This is an appeal from a decision of the Employment Tribunal at Reading presided over by Employment Judge Lewis, dated 2 September 2008. The Employment Tribunal dismissed the Claimant's claim for unfair dismissal on the basis it had no jurisdiction as the Claimant was not an employee of either Respondent.
2. The Notice of Appeal came before Burton J, who referred it on "the sift" to a full hearing on 13 November 2008.

Factual background

3. We gratefully take the factual background largely from the Decision of the Employment Tribunal. The First Respondent is an unincorporated association (a members' club). The Second Respondent is a company incorporated in 2001 to provide a formal business structure for the First Respondent's sporting activities. The Respondent owns a "minority" share in the Second Respondent.
4. The Respondents in effect run in tandem, although for what are described as "tax reasons" they seek to make a profit in the First Respondent club while attributing losses to the Second Respondent Limited Company. The Respondents are a semi-professional rugby club known as the "Henley Hawks".
5. The First Respondent is managed by a management committee and the Second Respondent by a board of directors. There is, however, considerable overlap in membership. Those involved in the management of the Respondents do so as a voluntary activity sharing their passion for rugby and their friendship with one another.
6. The Employment Tribunal note that the words "the club" were used interchangeably by the Respondents without legal nicety.
7. The Employment Tribunal having noted the considerable overlap in membership between the First Respondent's management committee and the Second Respondent's board went on to say:

"6.4 In that context, language was used loosely and informally, and without any great regard to legal nicety. We find, partly as a matter of common sense, that when speaking of "the club" those involved with the Respondents might be referring to many different entities. The entities might be a physical location (e.g. "Let's meet for a drink at the club"); or the playing team (e.g. "The club is at the top of the league"); or a social organisation or social activities (e.g. "Welcome to the club Christmas party"); or to the limited company ("The club is holding a Board meeting tomorrow"); or to any combination of these meanings. Examples of this loose and interchangeable usage were in the document (e.g. A 50) and were, we find, nothing untoward in the world of sport. A fan who refers simply to being a follower of "Spurs" is not concerned with which of a potentially large number of formal corporate entities are referred to."

8. The Employment Tribunal found that as at 2002 the Second Respondent had between 25 and 30 staff of whom approximately 75 per cent were on PAYE. All PAYE staff were employed by the Second Respondent as opposed to the First Respondent. Many of the staff had been offered the choice between being treated as employees under PAYE or being treated as self-employed independent contractors.
9. The Claimant, who is now aged 54, has had a career in club rugby and coaching for which he has formal qualifications. He has held coaching positions at the well-known rugby clubs, Wasps and Saracens.
10. In 2005 he was approached, the Employment Tribunal found, by representatives of the Second Respondent, which was looking to replace the Head Coach and Director of Rugby (then separate posts) with a single new appointment. One of the holders of those posts was on PAYE and the other was an independent contractor.
11. Negotiations took place between the parties, the Second Respondent's negotiations being led by Mr Douglas Ash, a past President.
12. On 11 January 2005 Mr Ash sent the Claimant an email after a meeting, in which he described how the club was run:

"We run the club through 2 entities, the members club and the limited company which is majority owned by the club. For tax reasons we try to make a profit in the club with losses in the limited company. Our real position is gauged by combining the two. The losses shown are accounting losses which are considerably worse than the cash position."

13. The Employment Tribunal accepted that the Second Respondent was "minority" as opposed to "majority" owned by the club.
14. Negotiations between the parties were successful and on 2 March 2005 Mr Ash sent an email to the Claimant.

"Further to our conversation last night I attach a draft offer letter. This is based on you joining as an employee and includes a car.

We believe there will be advantages to you operating as a limited company and Keith Alfreds [Director of Finance] will be very happy to talk to you about these, and to assist in setting up the company. … If you have any questions on the terms please raise them with Keith or me.

Once the structure and details are agreed we will give you a formal letter of appointment.

…

We are all looking forward to working with you."

15. The draft letter set out the Claimant's job description. Generally speaking other members of the coaching team would report to the Claimant while the Claimant would report to the Chairman of the Management Committee. The Claimant's hours of work were all training evenings (normally two or three per week together with three full days per week, including match days at home and away) actual days to be agreed with the Chairman. A notice period of three months on either side was provided for and salary was to be at the rate of £27,500 per annum to be reviewed on 1 May 2006. There was provision for a bonus, four weeks' holiday and provision of a fully insured leased car from the Club's fleet.
16. The draft letter concludes, "I would be grateful if you would confirm your agreement to the above terms by signing and returning the enclosed copy of this letter". The letter is signed by Graham Horner, the Chairman of the Management Committee.
17. We do not believe that the draft letter was ever signed and returned, nor was any formal letter of appointment ever issued.
18. Within 40 minutes of receipt of the email the Claimant replied to Mr Ash in the following terms:

"Doug

Happy with the details in your letter. Have clarified expenses issues with Keith and will meet up with him next Tuesday to sort out the Limited Company route -- my preferred at present."

19. The Claimant went on to say that he envisaged Mondays and Tuesdays to be his stock working days with other times "flexible to suit".
20. The Employment Tribunal (6.11) noted that the draft letter contained what were described as "the serviceable bones of an agreement". The parties proceeded on that basis and no other contractual documentation was issued at any time other than notification of a pay rise.
21. The Employment Tribunal had this to say at paragraph 6.12:

"We find that the e-mail of 2 March 2005 gave the Claimant complete freedom of choice. The Respondent put him under no pressure as to which option to accept. As stated above, it was replacing two individuals, one of each status."

22. The Claimant was the first coach to be appointed from outside the club. A press release was issued on 4 March 2005 confirming that the Claimant had been appointed to the new role of "Director of Rugby/Head Coach of Henley Hawks". Mr Mackenzie, who appeared on behalf of the Claimant, submitted that the press release showed that the Respondents had engaged the Claimant by reason of his personal qualities and experience, a submission that we accept.
23. Shortly thereafter the Claimant purchased an off-the-shelf company and changed its name to JKNA Training Ltd.
24. At the time of the Claimant's engagement with the Respondents (we use this term in a neutral sense) the Claimant had a commitment to coach at Northwood School. His position with the Respondents was part-time and they had no objection to his continuing to coach at Northwood School. On 1 April 2005 he wrote on the notepaper of JKNA Training Ltd to Northwood Prep:

"This is to confirm the change in the employment status with the school. This will move from one of employee to that of a consultant as from 01.04.2005. The changes will only affect payment arrangements for the service. These will now be concluded by way of company invoices issued monthly." to cover the agreed amount for the year in twelve equal payments. JKNA Training Ltd will be responsible for all tax liabilities."

25. The Employment Tribunal at paragraph 6:14 had this to say:

"That language indicated to us the commencement of a business venture, and the change of an existing relationship from one of employment to consultancy. When cross-examined as to why he thought JKNA should enjoy a different relationship with the Respondent from that which it had adopted with Northwood School, the Claimant could not reply."

26. The terms of the letter suggest to us (and also appear to have suggested to the Employment Tribunal) that the Claimant had a clear idea as to the difference in status between receiving payment under PAYE and being treated as a self-employed consultant.
27. The Claimant was provided with a leased car and a credit card. The Employment Tribunal noted that provision of a car and a credit card was usually compatible with employment status as opposed to that of an independent contractor. However in this case the Employment Tribunal found that those matters were issues of external appearance and presentation irrespective of the internal arrangements, which underlay them and the Employment Tribunal attached little weight to them (see paragraph 6.15).
28. After the Claimant joined the Respondents, the Second Respondent continued to maintain a payroll system for staff on PAYE and the Employment Tribunal (6.16) found that the Second Respondent had no ulterior reason as had been suggested to avoid adding the Claimant to that system and it could easily have done so.
29. Between April 2005 and February 2008 the Claimant invoiced the Respondents monthly through JKNA Training Ltd. The Employment Tribunal had either not made findings or had no evidence as to the precise services made available through JKNA Training Ltd by the Claimant. The Claimant was required to address his invoices to the Second Respondent and early invoices not addressed to the Second Respondent were returned for re-submission. The Claimant invoiced a monthly amount to cover work completed within that month based on an annual payment of £29,000. We have examples of those invoices in our papers. The Employment Tribunal found they utilised a cautious form of wording designed to minimise the risk of a charge to PAYE. A typical invoice is one that we have at page 32 of our bundle dated 31 August 2006:

"To services for coaching.

Monthly amount to cover

work completed in the month.

Amount based on 29,000 pa as agreed. £2,416.66 9 (together with additional expenses)"

VAT was charged after some date in 2006 when JKNA Training Ltd became VAT registered. The Respondent paid and reclaimed VAT.

30. JKNA Training Ltd's invoices were numbered sequentially and the Employment Tribunal found that the Respondent and Northwood accounted for just under one half of all JKNA invoices. The Claimant accepted that JKNA invoices had been raised for other work that he and his wife undertook. However, apart from the Claimant's work with Northwood School we do not know what these services were.
31. The Employment Tribunal at paragraph 6.20 found that in consequence of the financial arrangements we have described, the Claimant enjoyed a more favourable tax arrangement than would have been available to him under PAYE. However, in fairness it should be noted that the benefits were not all one way. The Respondents enjoyed benefits as well. They had no obligation to make payments of National Insurance or pension contributions and the Claimant, assuming that he was in fact an independent contractor, did not have protection from unfair dismissal or redundancy rights.
32. The Employment Tribunal noted at paragraph 6.21 that as a senior professional member of staff, the Claimant had the autonomy which he needed in all playing and sporting matters. This was not an indication of independent status but a recognition, not uncommon in the experience of the Employment Tribunal, that he had professional expertise superior to that of those to whom he reported.
33. Unfortunately in the 2007/2008 playing season Henley Hawks had poor results, and the committee and the board felt that the club was in a downward spiral of declining playing standards, poor results and a slide down the league. Inevitably, we suppose, the Claimant was to suffer the fate of other rugby and football coaches whose teams failed to achieve the success the clubs desired. In January 2008 a decision was taken to replace the Claimant and a confidential search for a replacement was undertaken. On 18 February the Claimant's position was terminated. Within days his supporting team of five other coaches also left, so the new manager had a "clean sweep" so as to speak.
34. The termination was summary, and if contrary to the Respondents' case, the Claimant were found to have been an employee, it was conceded that his dismissal was automatically unfair by reason of the absence of any dismissal procedure.

The Decision of the Employment Tribunal

35. The Employment Tribunal considered that it was important to determine whether the Claimant's contract was with the First or Second Respondent before determining his status. Having regard to what it had said in the passages we have quoted from the Decision at paragraph 6.4 the Employment Tribunal at paragraph 7.4 and 7.5 had this to say:

"We find the Directors and Committee Members, while using language about the club loosely and interchangeably, had a clear understanding that in the vast majority of instances such usages did not matter. They also understood that there were instances when they did matter. They understood clearly when they were a group meeting as friends, or when they were meeting formally as a Board.

In that context, we attach little weight to the lack of clarity at pages …, the original engagement offer, precisely because it was a draft arrangement awaiting further work."

36. The Employment Tribunal attached weight to the Respondents' insistence that the Claimant's invoices all be addressed to the Second Respondent and to the terms of the termination letter, which specifically referred to termination by the Second Respondent. The Employment Tribunal accepted the evidence of Mr Alfreds that all contracts were held by the Second Respondent, and that only the Second Respondent employed staff, and that only it had a PAYE system. The Employment Tribunal noted that the Claimant was not asked to explain nor did he explain why, on his case, he should have had a unique system, personal only to him, being employed by the members' club. The Employment Tribunal found that the Claimant had no contractual relationship with the First Respondent, the unincorporated members' club so the claim against it failed.
37. The Employment Tribunal then went on to consider the status of the Claimant's relationship with the Second Respondent. It directed itself by reference to such well-known cases as Ready Mixed Concrete v Minister of Pensions and National Insurance [1968] 2 WLR 775 (which was cited to us) and Massey v Crown Life Insurance Company [1978] ICR 590. We shall refer to these decisions shortly but in essence the Employment Tribunal was satisfied that two of the three questions posed by MacKenna J in Ready Mixed Concrete were answered in the affirmative. The Employment Tribunal had this to say at paragraph 9:

"We find first that Mr Lambden agreed to provide his work and skill in consideration of remuneration. Secondly we find that the Claimant was under the control of the Respondent: in so saying, we place him, as professional coach managed by volunteers and rugby lay people, in no different a position to any other professional managed by a hierarchy from outside the profession, such as a hospital doctor. He had professional autonomy in relation to sporting matters, and at the same time he was answerable to the company through the Chairman."

38. Crucially, however, the Employment Tribunal went on at paragraph 10 to consider the third limb of the Ready Mixed Concrete test:

"The third limb of the Ready Mixed Concrete test was that "The other provisions of the contract are consistent with it being a contract of service." We find here that that was emphatically not the case. We find that the Claimant's course of conduct from April 1 2005 in relation to his engagement arrangements were incompatible with employment status. We refer to paragraphs 6.13 to 6.21 above. The Claimant established a limited company, through which he ran not just his work for the Respondent but a number of other business arrangements. He invoiced monthly and charged VAT. He did so on advice, upon the free exercise of choice and with the Respondent's full co-operation. He specifically rejected the option of PAYE status which was open to him. He did so for a period of years, and would have continued to do so had his engagement continued. Applying the Ready Mixed Concrete test, we find that the Claimant was not an employee."

39. The Employment Tribunal went on to note that this was not a case involving an employment agency and was not a case "where nothing has been reduced to writing: on the contrary it is one where our task is to interpret matters in writing." The Employment Tribunal would not have been able to imply a contract of employment in order to give business reality to the relationship between the parties. The parties business arrangements were working effectively and serviceably until terminated.
40. The Employment Tribunal concluded by noting that had the issue of remedy been determined it was likely that "a serious Polkey issue would have arisen at the remedy stage" because the board and committee members considered the playing team to be facing a catastrophe in approximately January 2008 such as to lead to a complete clear-out of all coaching staff.

The law

41. There are numerous cases in which the courts sought to give guidance as to how to identify a contract of employment as opposed to a contract for services. We will limit ourselves to referring to two of the most frequently cited cases, to which we have been referred. We firstly refer to the decision of MacKenna J in Ready Mixed Concrete where he had this to say at page 791 H.

"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.

I need say little about (i) and (ii).

As to (i). There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill. Freedom to do a job either by one's own hands or by another's is inconsistent with a contract of service, though a limited or occasional power of delegation may not be: see Atiyah's Vicarious Liability in the Law of Torts (1967) pp. 59 to 61 and the cases cited by him.

As to (ii). Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant. The right need not be unrestricted.

"What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters." -  Zuijs v. Wirth Brothers Proprietary, Ltd. [1955] 93 C LR 561, 571.

To find where the right resides one must look first to the express terms of the contract, and if they deal fully with the matter one may look no further. If the contract does not expressly provide which party shall have the right, the question must be answered in the ordinary way by implication.

The third and negative condition is for my purpose the important one, and I shall try with the help of five examples to explain what I mean by provisions inconsistent with the nature of a contract of service.

(i) A contract obliges one party to build for the other, providing at his own expense the necessary plant and materials. This is not a contract of service, even though the builder may be obliged to use his own labour only and to accept a high degree of control: it is a building contract. It is not a contract to serve another for a wage, but a contract to produce a thing (or a result) for a price.

(ii) A contract obliges one party to carry another's goods, providing at his own expense everything needed for performance. This is not a contract of service, even though the carrier may be obliged to drive the vehicle himself and to accept the other's control over his performance: it is a contract of carriage.

(iii) A contract obliges a labourer to work for a builder, providing some simple tools, and to accept the builder's control. Notwithstanding the obligation to provide the tools, the contract is one of service. That obligation is not inconsistent with the nature of a contract of service. It is not a sufficiently important matter to affect the substance of the contract.

(iv) A contract obliges one party to work for the other, accepting his control, and to provide his own transport. This is still a contract of service. The obligation to provide his own transport does not affect the substance. Transport in this example is incidental to the main purpose of the contract. Transport in the second example was the essential part of the performance.

(v) The same instrument provides that one party shall work for the other subject to the other's control, and also that he shall sell him his land. The first part of the instrument is no less a contract of service because the second part imposes obligations of a different kind: Amalgamated Engineering Union v Minister of Pensions and National Insurance [1963] 1 WLR 441, 451, 452.

I can put the point which I am making in other words. An obligation to do work subject to the other party's control is a necessary, though not always a sufficient, condition of a contract of service. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant. The judge's task is to classify the contract (a task like that of distinguishing a contract of sale from one of work and labour). He may, in performing it, take into account other matters besides control."

42. Before leaving this case it is worthy of note as Mr Mackenzie pointed out that the five examples given by MacKenna J do not include a case dependent in any way upon whether the Claimant was paid under PAYE or was treated as self-employed.
43. This issue, however, was the subject of consideration by the Court of Appeal in the case of Massey v Crown Life Insurance Co [1978] ICR 590. Lord Denning MR had this to say
    at page 594:

"The law, as I see it, is this: If the true relationship of the parties is that of master and servant under a contract of service, the parties cannot alter the truth of that relationship by putting a different label upon it. If they should put a different label upon it and use it as a dishonest device to deceive the Revenue, I should have thought it was illegal and could not be enforced by either party and they could not get any advantage out of it - at any rate not in any case where they had to rely upon it as the basis of a claim. See Alexander v. Rayson (1936) 1 King's Bench 169. An arrangement between two parties to put forward a dishonest description of their relationship so as to deceive the Revenue would clearly be illegal and unenforceable.

On the other hand, if their relationship is ambiguous and is capable of being one or the other, then the parties can remove that ambiguity, by the very agreement itself which they make with one another. The agreement itself then becomes the best material from which to gather the true legal relationship between them."

44. We also need to remind ourselves that save in cases where employment status can be derived simply by construing a written agreement, questions as to the terms of the contract between an employee or contractor on the one hand and his employer on the other are essential factual; see for example the speech of Lord Hoffman in Carmichael v National Power [1999] 1WLR 2042 at 2049B.
45. In the present case the terms of the contract needed to be determined as questions of fact by the Employment Tribunal and in those circumstances we must bear in mind that the Employment Appeal Tribunal can only interfere in relation to the characterisation of that contract as found by the Employment Tribunal if it either misdirected itself in law or the decision was perverse. In that context we remind ourselves of the very high threshold required to make out a perversity case as set out by Mummery LJ in Yeboah v Crofton [2002] IRLR 634 paragraph 93.

"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC v Sheridan [1990] IRLR 27 at para 34."

Notice of Appeal and Grounds of Appeal

46. Mr Mackenzie sought to challenge the finding that the Claimant's contractual relationship was with the Second as opposed to the First Respondent. He also sought to persuade us that the Employment Tribunal should have found the Claimant was an employee rather than self-employed.
47. In relation to whether the Claimant was in a contractual relationship with the First or Second Respondent, Mr Mackenzie's central case was that a binding agreement had been made when the Claimant emailed his response that he was accepting the terms in the draft letter. No other terms were left to be agreed, he submitted, and no other terms ever were agreed save for the increase in the Claimant's pay in subsequent years. The question of payment under PAYE or through a Limited Company was merely a payment mechanism and of "minor importance" only. The Employment Tribunal should have found, it was submitted, that the Claimant was an employee of the First Respondent club. There was no basis for finding that it had somehow been transferred to the Second Respondent.
48. In relation to the question whether the Employment Tribunal was correct in finding that the Claimant was not in any event, an employee Mr Mackenzie relied upon a number of findings by the Employment Tribunal as supporting his case that the Claimant was an employee. We set these out in no particular order. (a) The provision of a car and credit card was accepted as being more consistent with the status of an employee rather than an independent contractor. (b) The Claimant's autonomy in playing matters was not inconsistent with his employment status as an employee. (c) The Claimant provided work for which he was remunerated. (d) The Claimant was found to be under the Respondents' control. (e) The Claimant received holiday pay. (f) The draft letter was only consistent with the Claimant being an employee. (g) The Claimant reported to the Chairman of the management committee.
49. Mr Mackenzie also relied upon certain matters not specifically referred to by the Employment Tribunal which, in his submission, were also indicative of there being an employment relationship as opposed to a relationship whereby the Claimant was an independent contractor. These were as follows. (a) The Claimant's contract was a contract for supply of personal services; in this regard he again drew attention to the press release of 4 March 2005. (b) It was clear that the Claimant was not expected to provide a substitute if he was unable to provide his services. (c) The Claimant was expected to attend the Respondents' premises. (d) The Claimant was paid a fixed sum regardless of the number of hours he worked. (e) The Claimant worked a substantial number of hours.
50. In relation to the question of payment Mr Mackenzie at various times described this as being a "mechanism" only, "a mere administrative matter" and inconsistent with the terms of contract with a limited company. The Claimant's appreciation of the significance of treating himself as self-employed for tax purposes was of "low" significance, it was an "ancillary matter".
51. Mr MacKenzie pointed to what he said was the confusion on the part of the Employment Tribunal as to the effect of its findings. He suggested that those findings pointed to the Claimant being dismissed by the First as opposed to the Second Respondent; we note at this point in time that it is correct that the letter of 18 February 2008 (page 28) is on the notepaper of Henley Rugby Football Club and signed by Mr Woodall as Chairman. It does, however, refer to termination of his contract with the Second Respondent. It seems to us, in any event, that there is no basis for overturning the finding of fact made by the Employment Tribunal (paragraph 6.23). The letter was written on the notepaper of the First Respondent because Mr Woodall did not have any headed notepaper of the limited company, the Second Respondent.

The Respondent's case

52. The Respondent's case was succinct. The Employment Tribunal correctly followed the guidance set out in the Ready Mixed Concrete case and was entitled on the facts to find that the contractual relationship was between the Claimant and the Second Respondent and that the Employment Tribunal was entitled on the material before it to conclude that the Claimant was not an employee. It was submitted that no single finding of fact unequivocally pointed to the Claimant being an employee and that the Employment Tribunal had no obligation to refer to all the evidence before it. Ms Bell submitted that the Claimant had failed to surmount the high threshold required for a perversity appeal.

Conclusions

53. In our opinion the decision of the Employment Tribunal that the Claimant's contractual relationship was with the Second as opposed to the First Respondent was based on the facts that it found and is in our opinion unassailable. The Employment Tribunal was entitled to conclude that there was a certain (and understandable) lack of clarity in the expressions used by the parties; this is apparent from the findings in the passage at 7.4 to which we have referred.
54. We would add that in our opinion the Claimant's status did not depend upon the identity of the other contracting party. Even if it did, we would reject the suggestion that any agreement came into effect as a result of the Claimant's reply to Mr Ash's email. There is no acceptance in terms and it is clear that the draft offer letter was based on the Claimant joining as an employee, whereas, his preferred option and the one he eventually decided to take, was to operate through a limited company. Although the Claimant was satisfied with the terms he had been offered as to the amount of his remuneration, holiday, provision of car and hours worked, it is impossible to construe his e-mail as being an acceptance because a major issue, namely whether he would be treated as self-employed or as an employee, remained to be resolved. It was clear to the Employment Tribunal, in our opinion, as it is clear to us that the letter to Northwood College at page 30 makes clear that the Claimant clearly understood the difference between his employment status if he were paid under PAYE or as a "consultant". It was not simply a question of a payment mechanism but of employment status.
55. Mr Mackenzie submitted to us that the Claimant would have considered himself to be an employee but one who was paid as though he was self-employed. We do not consider that such a finding is consistent with the decision of the Employment Tribunal.
56. We now turn to consider whether or not the facts as found by the Employment Tribunal or as we have set them out point unequivocally to the conclusion that the Claimant was an employee. The draft offer letter was just that, a draft, and as we have noted it was not accepted in its terms because the Claimant opted to be paid through a limited company giving him the status of being self-employed. In our opinion, when the Claimant said he was happy with the details in the letter, in context this meant no more than that he was happy with the remuneration package and other matters in the round, but no more. We are unable to see how that e-mail can be viewed as an acceptance giving rise to a concluded contract and the Employment Tribunal was correct not to so find.
57. There is no reason why a part-time rugby coach cannot properly be self-employed. We are unable to accept that the only construction of the facts as found by the Employment Tribunal was that the Claimant was an employee. It is correct that a number of those facts point more towards employment as opposed to consultant status but the Employment Tribunal correctly directed itself as to the law and it is the Employment Tribunal that is responsible for assessing the weight to give to the facts that it found and in this particular case it gave particular weight, as it was entitled to having regard to the authorities, of the party's self-description.
58. In the circumstances we are unable to say that the Claimant has satisfied us that the only decision the Employment Tribunal could have reached on the facts was that the Claimant was truly an employee and in our opinion the Claimant has failed to surmount the high threshold required of showing that the decision of the Employment Tribunal is perverse. It has not misdirected itself as to the law and in those circumstances the appeal must be dismissed.