THE INDUSTRIAL TRIBUNALS

CASE REF:	07342/09

CLAIMANT:				Martin Kevin Logue

RESPONDENT:			Coleraine Rugby, Football and Cricket Club

DECISION
The unanimous decision of the tribunal is that the claimant is not an employee of the respondent and, therefore, the claimant’s claims are dismissed in their entirety.

Constitution of Tribunal:
Chairman:				Mr S A Crothers
Members:				Mr S Adair
					Mr E Grant

Appearances: 	
The claimant was represented by Mr Lynas of LCDI.

The respondent was represented by Mr Richards, Barrister-at-Law instructed by Macaulay Wray Solicitors.

The Claim

1.	The claimant claimed that he had been employed by the respondent and was unfairly dismissed by the respondent.  The respondent contended that the claimant was a casual worker and worked as and when required.  The respondent also contended that it was not obliged to offer the claimant work and he was not obliged to accept work offered by the respondent.  In the alternative the respondent contended that the claimant did not have sufficient continuity of service in order for the tribunal to have jurisdiction to hear his claim, and, in any event, denied his allegations in their entirety.

The Issues

2.	The issues, as agreed by the parties at the outset of the hearing were as follows:-

1.	Was the claimant an employee of the respondent and, if so did he have the requisite continuity of service for the purposes of an unfair dismissal claim?

2.	If the answer to Question 1 is “yes”:-

(i)		was the claimant’s contract of employment breached in relation to notice pay?
(ii)	did the respondent fail to provide the claimant with written reasons for 	dismissal?
(iii)		was the claimant unfairly dismissed?

Sources of Evidence

3.	The tribunal heard evidence from the claimant and from Kathleen McCabe, the Chairperson of the respondent’s House Committee.  The tribunal also took into account documentation referred to it in the course of evidence.

Findings of Fact

4.	Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i)	In 1987, the claimant was requested by Mr McGurk, a barman employed by the respondent, to work in the respondent’s bar at weekends during the rugby season which spanned the period from August to May.  In January and February the claimant also worked on Friday nights but his usual day for working was Saturday.  His work was subject to Mr McGurk contacting him on Thursdays to tell him when to come in to work.  On occasions, during the winter season, the rugby matches were cancelled on Saturdays and were sometimes changed to Wednesdays.  In such circumstances, the claimant would be requested to work on Wednesday night instead of Saturday.  On the majority of occasions Mr McGurk, who lived in close proximity to the claimant, gave him a lift to the Rugby Club.  The claimant did not have any guaranteed hours and on occasions was not requested to work, although the tribunal did not have clear evidence as to how regularly this would occur.

(ii)	The tribunal is satisfied, on the claimant’s evidence, that he expected to work at weekends from August to May but this was always subject to him being contacted by Mr McGurk.  During 2001 and 2002, the claimant did not work in the bar at the respondent’s premises owing to the illness of his father-in-law and his subsequent death.  There was no evidence that the claimant ever claimed sickness benefit or holiday pay.  He thought that he was not entitled to such benefits, although was aware of his rights in these respects in his full-time employment with the Radisson Hotel from Monday to Friday of each week.  There was no documentary evidence presented to the tribunal governing the claimant’s status with the respondent.  Moreover, in 2001-2002 he did not have 
	
	to ask permission to take time off due to his father-in-law’s illness and subsequent death and had no difficulties with the respondent in taking time off during this period.  The claimant conceded that he could have turned down shifts working in the bar if he had wished to and would not get into trouble with the respondent for doing so.  The tribunal is satisfied that the respondent’s disciplinary policy did not apply to the claimant although for Inland Revenue purposes he was treated as a PAYE employee.  The normal National Insurance and tax deductions were made by the respondent.  The tribunal was shown a print-out of nett wage payments made to the claimant from 1999 which often vary considerably from month to month.  In particular, in 2001, the claimant received payments for January, February and March.  The next payment was received in November 2002.  His hourly rate in 2009 was £6.00 per hour and the payments indicate that except for January and February 2009, his hours  varied in April, May, June and August 2009.  

(iii)	The claimant forwarded correspondence to Mrs McCabe on 2 October 2009 as follows:-

	“I am writing to you in regard to my employment at the rugby club.  On 7th September I was contacted by the manager of the club bar and told that my services were no longer required and that I was in effect dismissed from the job I have held in the club for the past 24 years.  I was not given a reason for my dismissal.

I have taken advice on this matter and have been informed that I have been unlawfully dismissed.  Proper disciplinary procedures have not been followed, no notice was given and the manner of the termination of my job contravenes regulations set down in the Employment Rights (NI) Order 1996.

I ask that you supply me the reasons for my dismissal as a matter of urgency with a view to further action.”

	A reply was received from the respondent dated 8 October as follows:-

	“I acknowledge receipt of your later [letter] dated 2nd October 2009.  This matter is receiving our attention.”

	The tribunal is satisfied that the word “dismiss” or “dismissed” was never used 	by the respondent in relation to the ending of the claimant’s work.

(iv)	The tribunal is also satisfied that in the event of work not being available for casual staff, for example, half way through a shift, the individual could be sent home without entitlement to any payment.

The Law

5.	(1)	Article 3 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), provides as follows:-

“3. – (1) in this order “employee” means an individual who is 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 express or implied, and (if it is expressed) whether oral or in writing”.  

	(3)	The provisions concerning a temporary concession of work are contained in Article 8 of the 1996 Order.

(4)	Article 130A of the 1996 Order provides as follows:-

“Procedural fairness

130A.— (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a)		one of the procedures set out in Part 1 of Schedule 1 to the 				Employment (Northern Ireland) Order 2003 (dismissal and disciplinary 		procedures) applies in relation to the dismissal,

(b)		the procedure has not been completed, and

(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4) (a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order”.

(5)	The tribunal was furnished with relevant extracts from Tolley’s Employment Law and from Division 1A of Harvey on Industrial Relations and Employment Law (“Harvey”) together with a copy of the House of Lords’ decision in Carmichael and Another v National Power plc (2000) IRLR 43, the Employment Appeal Tribunal (Scotland) Case in McCafferty v Paisley Christian Social Action Centre (EATS/0106/03) (“McCafferty”) and the Employment Appeal Tribunal Decision in Little v BMI Children’s Hospital (UKEAT/0021/09/DA).  The extracts, to which both parties had access, dealt with the status of casual workers/employees and the relevant tests to be applied, together with reference to continuity of employment in the context of a temporary cessation of work. 

Submissions

6.	The tribunal heard oral submissions on behalf of both parties.  Mr Lynas submitted on the evidence that the claimant was an employee, that he had sufficient continuity of employment to bring a claim to the tribunal and that he was entitled to the compensation sought.  Mr Richards, on the other hand, urged the tribunal to find on the evidence and on the law that the claimant was not an employee of the respondent and, in the alternative did not have sufficient continuity of employment, (even in light of the provision relating to a temporary cessation of work), to present a claim to the tribunal.  He did concede however, that if the tribunal were to find against the respondent on these preliminary points, no statutory procedure had been followed and that the employee was therefore automatically unfairly dismissed and entitled to the maximum uplift in compensation.  He urged the tribunal, in that event, to conclude that the outcome would have been the same even had the respondent followed a fair procedure, and therefore that any compensation should be reduced under the principles established in Polkey v A E Dayton Services Limited (1987) IRLR 503 HL, to reduce compensation to nil.  

Conclusions

7.	The tribunal, having carefully considered the evidence together with the submissions of the representatives, and having applied the principles of law to the findings of fact, concludes as follows:-

	(1)	The claimant was not an individual who had entered into or worked under a contract of employment with the respondent.  As Harvey points out at Division 1A (Paragraphs 22-27):- 

“One further factor which has been found frequently in the case law is “mutuality of obligations” which will usually mean an obligation on the employer to provide work and an obligation on the employee to do it.  This is of particular relevance in the area of casual work ……. where it may well be a crucial element in drawing the line between relatively informal employment relationships and arrangements which ultimately are too loose to qualify.  However, the modern tendency seems to be to treat mutuality as, conceptually, a pre-requisite for any contract to exist, and therefore necessary for both “employee” and “worker” definitions”.

		In McCafferty, Lord Johnston stated in Paragraph 6 of his judgement as follows:-

“What determines this case fatally for the appellant, is the findings of the Tribunal that he was not bound to accept the work offered to him, and, that furthermore, his hours were not guaranteed.  He thus had the option to refuse an offer for whatever reason…”

(2)	The tribunal therefore dismisses the claimant’s claim as his relationship with the respondent did not exhibit mutuality of obligations.  It therefore considers it unnecessary to address the additional issues identified at Paragraph 2 above.

Chairman:

Date and place of hearing:	25 May 2010, Londonderry.

Date decision recorded in register and issued to parties: