Appeal No. EAT/1015/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 29th June 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR E HAMMOND OBE

	MR J A SCOULLER

MS J D ROBSON	APPELLANT

BOYS & GIRLS WELFARE SOCIETY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M S GILL
(Of Counsel)
Wythenshawe Law Centre
Fenside Road
Sharston
Manchester
M22 4WZ

	HIS HONOUR JUDGE J HULL QC:  This case is put into our list under our Practice Direction for a preliminary hearing to see whether we can discover any point of law on which the appeal can properly proceed and of course to give any directions which seem to be necessary if that is so.  We have been assisted in that quest, if I can call it that, by Mr Gill to whom we are grateful for his very fair and concise submissions which he has also embodied in a skeleton argument.

	Ms Robson is a Social Worker, obviously a responsible and experienced person.  She worked for the Boys & Girls Welfare Society, which has a number of homes where disadvantaged and, we understand, in some cases children with various physical handicaps may be found, her task was to act as a "key worker" in those homes.  Her employment began on the 20th April 1989 and she was undoubtedly employed as an employee, rather than as a self-employed free-lance, until the 19th September 1989 when, as the Tribunal found, that part of her employment ended.  She wished to pursue a college course and so, of course, it was natural that she wanted to be employed on a different basis.  She apparently went on to some night work and she said she continued to be an employee.  That was from 19th September 1989.  There was a short period when she resigned after some dispute, but she was re-appointed very shortly afterwards and for practical purposes her employment, I use that in a neutral sense, continued.  Then after she had finished her course at college she was again employed, as the Tribunal found, on the original basis, namely that she was an employee.  Her employment was back-dated; a letter was written on the 23rd October 1991, which the Tribunal saw, offering her employment and it was back-dated to the 1st April.  Then eventually her employment ceased.  She was dismissed on the 12th March 1993.  She said that her employment was long enough, that is to say two year's continuous employment, for her to claim compensation and complain to the Tribunal that she had been unfairly dismissed.  The employers took the point that she had not been continuously employed and they said she had only been employed since the 1st April 1991.  In the period of employment before that she was only a casual worker, that is to say she was not employed at all; she was self-employed.  They had to concede that she had had deductions from her pay for National Insurance and tax but that, of course, is a matter which is only one indication.  Indeed, there is no conclusive test for employment or self-employment, one knows that thirty or forty years ago it was said with some confidence, that the real test was control.  If the employer could tell the employee or servant as they were then very often referred to, how to do the job as opposed to merely what job to do, that was conclusive, but that has long gone.  

	That was what the Industrial Tribunal had to decide and they have given their Full Reasons.  They sat on the 19th August 1993 under the Chairmanship of Mr Russell at Manchester and I will read part of their decision.  They heard the Applicant, Ms Robson, they also heard Mr Tuohy, who was I think the Director of the Respondent.  They said:

		"We did not find the applicant to be an entirely reliable witness, and where conflict occurred between the applicant's evidence and the oral and written evidence given on behalf of the respondent we preferred the latter."

That is a matter of complaint by Mr Gill; he says the matters are a non sequitur, it is all very well for them to find the Applicant was not an entirely reliable witness, it is a complete non sequitur to go on and say:

		"where conflict occurred between the applicant's evidence and the oral and written evidence given on behalf of the respondent we preferred the latter" 

They would be entitled to say that, says Mr Gill, but then to  go on to say, as they do later, that they do not accept her evidence about various things does not follow.  I will go on reading to do justice to that submission.

		"We find the following facts to be proved on the balance of probabilities"

They say how there was a system of residential homes run by the Respondents, with permanent staff there.  They say the Applicant was a Social Worker, and they set out the dates that I have already referred to.  They say that she was employed as a relief worker and worked as a relief worker until she resigned in or about October 1990.  This is during the period in the middle, following disagreement; and then she was reappointed.  They say this was confirmed in a letter from Dr Fitzpatrick dated 3 December 1990.  This letter makes it abundantly clear that the hours worked will be regarded as casual.

	The next significant development was that having completed her college course the applicant became a member of the respondents' working night duty team with effect from 1 April 1991.  That started the third period, when of course she was regarded, by consent, as, a full time employee, or at any rate an employed person.  They say it was backdated, the letter of employment was actually written on the 23rd October 1991; she was once again an employee of the Respondent and she received sick pay, and holiday pay and clearly her status had changed.  It does appear, with respect, that there they were addressing their minds to highly material matters.

	Then there is a complaint by Mr Gill of what followed later, in paragraph 3(e):

		"Mr Graham argued on behalf of the applicant that the fact that the appointment was backdated to 1 April 1991 was significant because it could be said to amount to recognition of the work that the applicant had been doing.  However, the Tribunal does not consider that the fact that the applicant's appointment was backdated [to the 1st April of course] means that the applicant was an employee before 1 April 1991.  Although the respondent had been generous in backdating the appointment, it clearly cannot assist us in determining the applicant's status before 1 April 1991."

Mr Gill criticises that by saying, "well it could and simply to reject it out of hand and say that it cannot assist us is an error of law".  But with respect we take a different view.  When a court or tribunal says that something cannot assist them, the sensible meaning is usually not that it is wholly inadmissible as a matter of law but that having considered it, it does not in fact assist and cannot assist on this occasion.  It is, with respect, self evident, that on the face of it a letter which backdates employment to Thursday 1st April is unlikely to assist with regard to what happens before that because it is dealing, inevitably, with the future.  It might be that it could (conceivably) assist by referring in a factual way to what had passed before, but they said "it cannot assist us" and we do not think they can possibly be criticised for saying that.  Whatever shade of meaning one gives to it one knows that nowadays people are fond of saying "well, could that have happened, or could that be so?";  about as ambiguous a phrase as even the ambiguous language of English can provide and; we do not think that saying "it cannot assist" possibly discloses an error of law.

	Then in 3(f):
		"We are satisfied that whilst engaged as a relief worker the applicant worked virtually every week.  We were told by Mr Tuohy and we accept his evidence, that each Manager had his or her own favourite relief workers.  The more reliable his or her own favourite relief worker was the more likely his or her services would be regularly called upon.  Moreover because of her experience the applicant was appointed as a key worker to a particular child during her time as relief worker.  This no doubt reflected the high regard the respondent had for the applicant's abilities and dedication.  However, it does not really assist us in determining the status of the applicant at the relevant time."

Again, Mr Gill says, it certainly should have assisted them, "keyworker" shows what an important person she was in the organisation.  But of course the strength of that argument is rather reduced by the fact that as Mr Gill said to us, which is undoubtedly true, all work concerned with these children was very important and it was a matter for the Tribunal and not for us whether they thought her description as "keyworker" was material to deciding whether she was, in fact, an employee or self-employed.  The Applicant felt that the Respondent relied upon her whilst she was a relief worker.  We can accept the Respondent must have done.  The Applicant was almost always available to act as relief worker, she was probably the first choice as a relief worker at Lockhart House where she regularly worked, she was no doubt regarded as dependable; but again, they did not consider that this provided any assistance in determining whether the Applicant was an employee of the Respondent at the relevant time.  Again, Mr Gill criticises that; he says that is an error of law, it must have provided some, or should have provided some, assistance to them.  Again we say, this is to be read as saying that it does not assist them on this occasion.  Obviously some self-employed people will be always of great importance to those who call on them from time to time, one thinks of all sorts of professions in which a person is employed on the basis that they are a casual worker, they can come in or not come in as they choose, if asked to do so; one thinks of doctors, nurses and other people who are self-employed.  The fact that they are of great importance and their work is very significant does not prevent them, necessarily, from being self-employed.  It seems to us that that is all the Tribunal is saying here.

	Then in (h):

		"her name would often appear on the rota for Lockhart months in advance.  No doubt it did."

they say, having heard her:

		"We are unable to accept that the applicant was told that she must work the hours she had been rostered to work.  Rather we accept Mr Tuohy's evidence that if the applicant had regularly declined to work the shifts offered to her then the respondent would soon have started using other relief workers in preference to her."

Mr Gill says that is a non sequitur and he says, first of all, they were bound to accept her evidence where it was not contradicted.  We reject that submission; it is not a submission which can be made, particularly in favour of a witness on whom the burden lay and who was regarded by the Tribunal as unreliable.  Mr Gill says well, it is a non sequitur to say "rather we accept Mr Tuohy's evidence", but really that word "rather" is only a form of speech; it is not intended to be a logical connection.  It does not appear to us that there can be any error there.

	Mr Gill refers to O'Kelly v. Trust House Forte plc [1983] ICR 728, very helpfully, that was a case in which it was held that this Employment Appeal Tribunal had done precisely what Mr Gill is asking us to do, that is to interfere with a finding of fact.  We have paid regard to what was said in that decision.

	Then, the Tribunal say:

		"After hearing the evidence we came firmly to the view that the respondent between 19 September 1989 and 1 April 1991 {the contested period} was under no obligation to provide work to the applicant."

they were entitled, in our view, to reach that finding.

	Mr Gill says well, a contract of employment can exist even if the employer is not under any obligation to provide work.  It may be that the employee is bound to sit there, perhaps for hours on end, perhaps even for days, waiting for work.  The employer is entitled to do that and the employer is not bound to provide work.  As a proposition of law we accept that, but they found here that there was no obligation to provide work and that is a very important consideration, or at any rate they are entitled to treat it as a very important consideration, in deciding what they had to decide.  They go on, after accepting Mr Tuohy's evidence about what would have happened if she had regularly refused work to say:

		"In the circumstances we are wholly unable to find that a contract of employment existed in the period between 19 September 1989 and 1 April 1991."

As we have said, they heard the evidence of Ms Robson, the heard the evidence of Mr Tuohy.  They were, in our view, as a matter of law entitled to reach the conclusion that they did, and having considered the criticisms which Mr Gill makes of it, in our view, they do amount to doing exactly what we enjoined in Hollister not to do, that is to say going through the Reasons of the Tribunal which are full and carefully expressed, and taking isolated grammatical points as criticisms; which could be done with almost any judgment or any decision of a tribunal which was ever given.  We think, with great respect to Mr Gill, having considered the criticisms which he makes, we are completely unconvinced that there is any point of law here, we find that there is no point of law on which this case can go forward.  Mr Gill offered to show us particular letters but that, with respect, is not right.  If it is going to be said that the Tribunal should have reached a different conclusion on a particular document then of course we should have to call for all the evidence.  We are not satisfied that this Tribunal overlooked important evidence or that they were not entitled to act in any of their findings as they did.  In those circumstances the appeal must be dismissed.

	Mr Gill made one point which we do certainly accept and that is that the Chairman here has made comments and written to this Tribunal dealing with the grounds of appeal.  He is, of course, entitled to say if there are any mis-statements of fact about what actually passed in front of the Tribunal; and very frequently we have to ask chairmen if they would be good enough to write to us and say what happened on some particular occasion; but we do not think that the Chairman is entitled to write to us commenting generally on the points raised by the appeal and so we have simply put that on one side.  Although we are quite sure that the Chairman wrote with the intention of helping us we have not taken into account what the Chairman has said in reaching our decision.