Appeal No.	 EAT/857/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 November 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MISS C HOLROYD
MR R SANDERSON OBE

MR D P DAVIES	APPELLANT

MR C STANDEN	RESPONDENTS
T/A CLS HOMEBUILD

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR N J BLUNDELL
(TU Representative)
UCATT
199 Newport Road
Cardiff
CF2  1AJ	

		MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether Mr Davies has an arguable point of law against the decision of an Industrial Tribunal held at Cardiff, which determined that Mr Davies was not an employee.  If I might respectfully say so, we have been presented in support of this application with a comprehensive and interesting and well put together argument.

	The brief facts are that Mr Davies saw an advertisement in a local newspaper for self-employed bricklayers.  He was employed “on an SC60 basis” which entitled him to be treated as a self-employed individual for tax purposes.  Mr Davies was fully aware of the difference between an “SC60 employee” on the one hand, and a “PAYE employee” on the other.  

	The Industrial Tribunal considered the issue as to whether he was an employee or not and referred in particular to a case called Massey v Crown Life Insurance and to a dictum of Lord Denning.  Whilst we would not criticise the Chairman for referring to that particular case, in support of the point upon which he placed reliance, we are of the view that the cases which Mr Blundell has referred us to, in support of the prospective appeal, would have been a better catalogue of cases to have referred to than this dictum of Lord Denning’s.  But, essentially as it seems to us, having considered the various questions including the question of control, the Industrial Tribunal Chairman placed weight on the way in which Mr Davies had become “employed”.  We think that he was entitled to arrive at that conclusion for the reason that he gave, and we see no grounds for believing that he has erred in law.  

	The difference between an employee and a self-employed person is not at all easy to define.  It requires the Tribunal to consider the relevant facts, having regard to the variety of tests which can be applied to those facts.  We are satisfied, having looked at the decision, that it cannot reasonably be argued that the Chairman failed to approach the matter in the correct way, and according to the Tribunal a fair margin of appreciation, as we should in a case such as this, we are of the view that the appeal is unarguable and therefore should be dismissed.

	I think it would be right to say that this decision might have had exactly the same result in this Court if the decision had been decided the other way.  

	We have had an application for leave to appeal the decision which we have just given.  Because we take the view that this was essentially a decision for the Industrial Tribunal as a matter of fact, we are not in the slightest bit persuaded that there is any principle involved in this case, or any identifiable error of law fit for hearing before the Court of Appeal.