THE INDUSTRIAL TRIBUNALS

CASE REF:	1575/04

	
CLAIMANT:			James Mervyn Dickson	

RESPONDENTS:		1.	Peter Thompson (HPTO)
2.	Department of Regional Development, 
Water Service
3.	Williams Industrial Services

DECISION

The decision of the Tribunal is:-

(i)	that Mr Peter Thompson is dismissed from the proceedings: and

(ii)	that the claimant was an employee of the Water Service as an agency of the Department of Regional Development and that therefore the Water Service as an agency of the Department of Regional Development is the correct respondent, accordingly Williams Industrial Services are dismissed from the proceedings.

Constitution of Tribunal: 

Chairman (sitting alone):		Ms P Sheils	

Appearances:

The claimant appeared and represented himself. 

The first and second-named respondents were represented by Mr A. Sands, Barrister-at-Law, instructed by Ms P Doherty of the Departmental Solicitor’s Office.

The third-named respondent was represented by Mr J. Toner, Director, of      Williams Industrial Services. 	

Background

1.	The claimant in a claim form lodged with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 6 May 2004 alleged unfair dismissal.  In that claim form he cited Mr Peter Thompson, HPTO with the Water Service and the Water Service as his employers.  

2.	A response was lodged by the Departmental Solicitors on behalf of the Department for Regional Development and the Water Service.  A response was also lodged by Williams Industrial Services Limited, referred to as WIS. 

3.	In their response the Departmental Solicitor’s Office indicated that neither the Department for Regional Development nor its agency, the Water Service, was the claimant’s employer and denied that they were the appropriate respondent in the case.  

4.	The response lodged on behalf of WIS indicated that they had no control or supervision of the claimant and that all of these responsibilities were with the Water Service.

The Issue To Be Determined

5.	The preliminary issue for the Tribunal to determine, as notified to the parties was:-

“To identify the correct respondent”. 

6.	The issue the Tribunal had to decide was whether, for the purposes of bringing an unfair dismissal claim under the Employment Rights (Northern Ireland) Order 1996, the claimant was an employee of the Water Service as an agency of the Department for Regional Development, or of WIS.  

7.	The first and second-named respondents were represented by the Departmental Solicitor’s Office. 

8.	No issue was taken by any party that Mr Peter Thompson was not the correct respondent for these purposes.  Accordingly, the Tribunal dismissed Mr Peter Thompson from the proceedings.

Sources of Evidence

9.	The Tribunal heard evidence from Mr Dickson on his own behalf.  

10.	The Tribunal heard evidence from Mr Stephen Truesdale, Head of Procurement with the Water Service and Mr William Howell also of the Water Service.  

11.	The Tribunal also heard from Mr John Toner for the third-named respondent.

12.	The Tribunal considered a number of documents provided to it by the first and second-named respondents.  

Findings of Facts

13.	Having considered the oral and documentary evidence and heard submissions from the parties the Tribunal found the following relevant facts either admitted or proved on the balance of probabilities:

14.	There was a contract between WIS and the Water Service that had pertained in excess of twenty years.  It was a contract whereby WIS agreed to supply the Water Service with technicians for the exclusive use of the Water Service.

15.	The contract was contained in documents submitted to the Tribunal and known as ‘Tender, number C071, the supply of technicians for maintenance of equipment in the fields of instrumentation; radio and telemetry’.  The actual contract submitted was dated as ranging from 1 April 2001 to 31 March 2003 (2004) and it was not contested by any of the parties that this was the contract between the second and third-named respondents that was relevant to the case.  

16.	It was not challenged by any of the parties and the Tribunal accepted that the purpose and scope of this contract between the Water Service and WIS was to supply technicians for the maintenance of equipment in the fields of instrumentation radio and telemetry to the Water Service to augment Water Service own staff to carry out this function.

17.	WIS successfully bid for the contract on the terms of the tender document which required them, as contractors under the contract, to provide such technicians on a number of conditions covering the areas of skill and expertise, training, Health and Safety, risk assessments, protective clothing, working arrangements, such as:-

(a)	That the contractor should use all proper professional skill and care and shall employ properly qualified staff in carrying out (the responsibilities of a technician)

(b)	That the contractor would pay wages of a sufficiently high level so as to attract and retain a suitable type of person in employment in the industry

(c)	That the contractor would be responsible for all training related to Health and Safety at Work regulations. The contract also provided that the Water Service would provide up to date training to the technicians at no extra cost to the contractor.

(d)	That the contractor would provide a safety policy statement and comply with all relevant legislations relating to risk assessment.

(e)	That the contractor would provide technicians with their own personal protective equipment.

(f)	That the contractor would adequately train the technicians in the use of breathing apparatus.

(g)	That the contractor would provide a range of equipment to each technician, to comply with the Personal Protective Equipment Regulations, including day to day protective clothing. 

(h)	That the contractor’s staff will work under the direction and control of the contractor who would remain responsible for their conduct and discipline

(I)	That the technicians offered for service by the contractor must be available for ‘on call’ on a rota basis.
 
18.	The Tribunal also noted that references were made throughout the contract to the technicians as staff employed by the contractor ‘under the contract’ or ‘on the contract’ or ‘for the contract’, such as:-

(i)	the contractor shall not allow any of the staff employed on the contract to be on duty for more that 12 hours in any 24; and

(ii)	the contractor shall not unless agreed, employ for the contract any staff under 18 years or over 65 years of age.

19.	The claimant worked most of his career as an instrument foreman in Ballylumford Power Station.  In 1999 he was approached by Mr John Toner of WIS and asked if he would like to work in the Water Service as an instrument technician.  

20.	At an interview with WIS the claimant was advised that WIS were satisfied that he was suitable for the job being offered on the basis of his previous job at Ballylumford.  At this interview the claimant discussed how much his wages would be and what his terms and conditions of work would be like, eg pay, start times/stop times/tea breaks, equipment they would supply and issues regarding safety.  

21.	At this interview the claimant was also told that there would be another interview that would be conducted by the Water Service.  The claimant was told at this first interview by WIS that they considered him suitable for the job but that it would be down to Water Service whether he would be given the job or not.  

22.	The claimant attended a second interview conducted by the Water Service. The second interview was quite different in that the claimant was faced with a number of technical questions which sought to test his ability and suitability for the job. 

23.	It was decided at this interview that the claimant would be offered the job and at this point the claimant was asked if he had any comments he wanted to make.  At this juncture the claimant indicated that he wanted an agreement that he did not want to work on the call out rota and that he did not want to work anywhere near the incinerator which had previously made him very sick.  

24.	The claimant was advised that as there were so many people willing to do call out rota that this would not be a problem and secondly that as the work on the incinerator attracted a lot of overtime there were always a number of people willing to volunteer for this job and that the claimant would not be required to work on it.

25.	The claimant did not produce any written documentation indicating that he had a contract of any kind between himself and WIS or between himself and the Water Service.  The claimant’s evidence was that he may have signed a contract with WIS but if he did he could not remember the details of it.  WIS did not produce a document purporting to be a contract between themselves and the claimant.  

26.	The claimant’s tools were supplied by WIS and the Health & Safety training was provided to him by WIS.  Further, the claimant was supplied his personal protection equipment by WIS.  

27.	The claimant worked every day out of Westland House, one of the big centres in the Water Service.  He went in every day to take his work from the instrument Professional Technical Officer, the ‘PTO’.  This PTO decided what job the claimant would do and where the job would be.  The claimant collected a job sheet (unless on a continuing job) most mornings and all allocation and control of his work was given to him through the Professional Technical Officer working in the Water Service.  Any problems or difficulties that arose on any job were referred back by the claimant to the Professional Technical Officer.  

28.	The claimant only worked on Water Service sites and in the main used Water Service equipment.  Any materials required for repairs were held at Westland House apart from some small items that the claimant carried as a technician.

29.	The claimant’s time-keeping and registration of days worked was controlled by the Professional Technical Officer.  Any jobs that required time out of the ordinary was authorised by the Professional Technical Officer on the claimant’s time sheet.  The claimant’s mileage was authorised by the Professional Technical Officer.

30.	Disciplining for stepping out of line was conducted by the Professional Technical Officer, if warranted, and further disciplining was conducted by the Higher Professional Technical Officer.  This could include disciplining for going home early from a site or poor time-keeping.  

31.	The claimant’s job brought with it a high degree of autonomy in that work was assigned to him and he went off on his own and carried it out.  Although the claimant mostly worked alone if he required technical assistance he worked alongside technicians from WIS. 

32.	The claimant submitted a work sheet to the Water Service.  The Water Service passed this work sheet to WIS.  WIS then submitted a bill to the Water Service from which the claimant was paid his wages.  The claimant was unaware of the financial arrangements between the Water Service and WIS.  He received his salary directly from WIS.  The claimant also received holiday pay and sick pay directly from WIS.

The Applicable Law          

33.	For the purposes of bringing a claim under the Employment Rights (Northern Ireland) Order 1996 the claimant must bring himself within the definition of employee under Article 3 of that Order.  The provisions of that Article are Article 3 –

(1)	In this Order ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.  

	(2)	In this Order ‘contract of employment’ means a contract of service or apprenticeship, whether or express or implied, and (if it is express) whether oral or in writing.

34.	There is no statutory definition of ‘a contract of employment’ and therefore where the question arises as to the status of whether a claimant has a contract of employment becomes a matter to be distilled from legal principles set out in relevant case law.  

35.	In this instance the Tribunal reviewed the cases of Brooke Street Bureau (UK) Limited  v  Patricia Dacas [2004] IRLR 358, the Dacas case.  This Court of Appeal decision reviewed all the previous relevant authorities and distilled the relevant legal principles applicable to this case as follows:-

(1)	For a contract of service to exist there are two minimum requirements, both of which must be fulfilled.  These are –

(a)	mutuality of obligation as between employer and employee and

				(b)	the control of the employee by the employer.

36.	The Dacas case also held that in the circumstances where there is a three-party or triangular arrangement, as in this case, the fact that there is no express contract between the claimant and the end user does not necessarily mean that a contract of service cannot be implied between them-

“The form of written contracts between the claimant and the agency and between the agency and the end-user relating to the work to be done by her for the end-user did not, as a matter of law, necessarily preclude the implication of a contract of service between the applicant and the end-user.  

37.	The Tribunal concluded therefore that in order to answers the question in this case, “who is the correct respondent” and “who is the claimant’s employer” it was necessary to consider the total factual situation occupied by the parties which fell to be determined from all the evidence and apply to it these legal principles.  

38.	As there was no express contract of service or a contract of employment between the claimant and the Department or between the claimant and Williams Industrial Services it was for the Tribunal to consider the facts in the case and explore where the employment contract existed as between the parties.  Such a contract can only be implied if it is a necessary inference from the evidence.  

The Tribunal’s Conclusions

39.	Accordingly the Tribunal considered the issues and concluded as follows:- 

(i)	Mutuality of obligation 

40.	It was clear from the outset to the claimant, when he was approached by WIS that he was, subject to his suitability, to fulfil for WIS the contractual arrangement they had with the Department to provide the Department with technicians like the claimant. The claimant was to do this by being deemed suitable and acceptable to the Water Service.  

41.	The role of the Water Service in the recruitment process was to satisfy themselves as to the claimant’s technical ability to carry out the job. However in this case the Water Service went further than this and at the claimant’s second interview with them they agreed to accept him as a technician in spite of the claimant’s conditions that he would not work the call out rota nor work at the incinerator, both of which were requirements for technicians under the contract. 

42.	Accordingly the Tribunal found that the claimant had been recruited by the Water Service.  The role of WIS in the recruitment process had been to supply to the Water Service potential suitable candidates.  However, the decision to select a candidate remained firmly with the Water Service who had the right to offer or refuse the job or to alter the terms on which they were prepared to offer him the work.  

43.	With respect to mutuality of obligation the Tribunal read the case law and understood this expression to mean the exchange between the person (the employer) who provides work, keeps the employee safe at work and pays the employee for that work, on the one hand and the person (the employee) who turns up for that work and does the work, on the other. In the working world such payments of money for work done usually includes payments of money for periods of time when work is not done, i.e. for holidays and sick absences.    

44.	In the circumstances of this case it was WIS who paid the claimant the money for his work. The money to do so was sent to them by the Water Service. The money would not have been sent to WIS unless the claimant did his work. The Water Service paid WIS this money to fulfil its (the Water Service’s) obligations to the claimant for his having completed work for the Water Service. 

45.	Although WIS paid the claimant money for holidays and sick absences the Tribunal found that in doing so WIS was meeting its obligations to the Water Service under the contract between them. 

46.	Therefore the Tribunal concluded that the requisite mutuality of obligation lay between the claimant and the Water Service.

(ii)	Control 

47.	The contract between WIS and the Water Service required WIS to provide to them technicians with a high level of skill that would be fit to carry out work as directed by them. WIS was obliged to ensure that, at the point of provision, the technicians would be trained in all aspects of the work and would be fully equipped and clothed for the work. Thereafter the practical and day-to-day control of the claimant was at the hands of the Water Service. 

48.	The Water Service provided up to date training on new equipment. The Water Service assigned the claimant his work and directed it. They monitored his work and his time-keeping. They allocated him his holiday periods. 

49.	Most importantly the Water Service controlled whether the claimant had work or not.  Under the terms of the contract the Water Service could decide to use the claimant (as the other technicians supplied) or not, as they required.

50.	Crucially when the claimant was dismissed by the Water Service he was out of a job.  He was not employed by WIS elsewhere on another contract.  His employment ended when the Water Service refused to allow him to continue to work.  The claimant had no contractual arrangement or even an understanding with WIS that in such an eventuality WIS would provide him with other work themselves or under some other contract with another third party. 

51.	The Tribunal concludes from all this that the Water Service exercised a significant measure of control over the fact of the claimant’s employment, or his continuing employment as well as the way he carried out his employment on a    day-to-day basis.  

52.	Accordingly the Tribunal finds that the claimant was an employee of the Water Service as an agency of the Department of Regional Development and that therefore the Water Service as an agency of the Department of Regional Development was the correct respondent. 

Chairman:

Date and place of hearing:	2 November and 15 December 2005, Belfast

Date decision recorded in register and issued to parties: