Appeal No.	 EAT/284/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 July 1998

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MRS R CHAPMAN
MR P R A JACQUES CBE

MR R C COLBORNE	APPELLANT

NEWS LTD OF AUSTRALIA	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON 
and
MR CLAYTON
(of Counsel)
Appearing under the Employment Law Appeal Advice Scheme	

	MR JUSTICE KIRKWOOD:	This is the preliminary hearing of an appeal by Mr Colborne against the decision of an Industrial Tribunal sitting at Stratford on 2nd June and 15th September 1997, dismissing his claims for breach of his contract of employment, unauthorised deduction of wages and entitlement to minimum statutory notice. The extended reasons for the decision were given by the Chairman, who sat alone, on 14th January 1998.

	Mr Colborne was employed by the respondent company between 26th June 1983 and the end of March 1988. In the extended reasons he is described as having been employed as a teleprinter operator. 

	It is our understanding that during the period of his employment a new, sophisticated and extremely complicated system of international communication of news material and pictures was introduced. Mr Colborne tell us today that his proper title, following negotiation by the union, was Telecommunications Electronics Operator.

	Mr Colborne became 65 during 1987. Normally he would have retired at that age but his successor needed training and he tells us that he stayed on to train his successor who was referred to in papers we have seen as “Ray”. His full-time employment came to an end at the end of March 1988. We have seen a document about that, which was also before the Industrial Tribunal, which contains this:

“Through it all Ron has been cheerful and optimistic that everything will work out in the end and his own mix of experience and common sense has made sure that it does work. For a man who began his communications life sending smoke signals with a blanket over a fire of damp twigs it is been splendid to see just how skilfully Ron has handled the brave new world of computers. Computers I feel will never be the same again. The good news of course is that Ron will drop in now and again to lend a hand and tell us about his bridge and we will be glad to see him. Thanks for everything Ron, and we look forward to seeing you often in the months ahead as we learn to live with your noisy replacement Ray.”

The reference there to dropping in now and again to lend a hand, was, so Mr Colborne told us, perhaps a light-hearted way of reflecting discussions there had been a few days before that he would come in to stand in for people on holidays.

	When the arrangements for him to do that were no longer made use of by the employer from the middle of 1996 Mr Colborne applied to an Industrial Tribunal. 

	The Industrial Tribunal had Mr Colborne’s form IT1, his notice of application, and it considered also some letters Mr Colborne had sent to the tribunal a couple months after the Originating Application of 16th September 1996. Those letters were apparently treated in the mind of an Industrial Tribunal Chairman as being amendment to the Originating Application, but no order to that effect was ever drawn up. When the case came before the tribunal for a pre-hearing review on the dates to which I have referred, a question arose about those amendments. 

	Four claims were clarified as being claims Mr Colborne was making. The first was failure in August 1996 to give him notice of termination of contract. The second was loss of wages due to lower rates of pay resulting from failure to give notice. The third was loss of Sunday working rates, namely payment for single time on Sunday from 1991 in place of the previous double time and that was claimed as an unauthorised deduction of wages under the Employment Rights Act 1996. The fourth was a claim of entitlement to minimum statutory notice under s. 86 of the 1996 Act.

	The tribunal considered those four matters and considered submissions on behalf of the respondent company that amendment should not be allowed. In respect of the second and third of those claims the tribunal decided this:

“6 ... Mr Colborne did not put his claim to various managers of the Respondent following the alteration in the amount of money which would have been paid on Saturday working in 1991. He explained this on the basis the reduced payment had been accepted by the father of the chapel on his union, the NGA. Whilst it was possible to sympathise with the loss of approximately £100 for each Sunday, he could have made these claims at any time from 1991 onwards.
7	As a consequence, I decided that it would be unreasonable now to permit Mr Colborne to pursue these claims at this late stage. An amendment out of time for claims at paragraph 4(b) and (c) [that is the second and third matter to which I have referred] was therefore not permitted and the claims dismissed. Claims at paragraph 4(a) and (d) above were amended out of time.”

So that left for determination by the tribunal a question of failure to give notice of termination and minimum statutory notice.

	The evidential matter the Industrial Tribunal explored from the evidence of Mr Colborne, Mr Barrett and Mr Louden, was what was the nature of the arrangement under which, after the end of March 1988, Mr Colborne came in from time to time to fill in for employees who were on holiday. The tribunal found that after 31st March 1988 Mr Colborne did work up until 21st August 1996:

“Payment slips provided by the Respondent showed that Mr Colborne for the Respondent on an irregular basis. In the years 1988 to 1996 he was never paid for working every month in the year; for example in 1991 he was only paid for working five months in the year and in 1993 for eight months. His monthly pay fluctuated significantly from the highest of £2,400 in January 1990 to £214.04 in September 1995.
There was nothing in writing to regulate or control the working arrangement between Mr Colborne and the Respondent.
The Respondent used Mr Colborne’s services to provide cover for holiday and sickness. Whilst Mr Colborne’s services could be pre-arranged for the former, they could not be booked for the latter.”

Mr Colborne, incidentally, told us today that covering for sickness had not arisen in fact and it was for holidays that he covered.

	The tribunal found:

“Mr Colborne was not in the Respondent’s superannuation fund. He was not shown on a list of staff employed by the Respondent.
A check was made by Mr Louden with his predecessors who informed him that Mr Colborne’s services were used by the Respondent as and when they were needed.”

The tribunal found that Mr Colborne worked on an occasional basis.

“The Respondent was not in a position to require him to work when he did not want to fill in for the Respondent.”

In fact, Mr Colborne tells us today that that did not arise in the event either.

	The tribunal found that the contract of work was not terminated by the respondent, rather, Mr Louden gave him an indication that his services were no longer required.

	An appeal lies to the Employment Appeal Tribunal only on a point of law. Only if the Industrial Tribunal make a wrong decision because they have applied wrong law can this Employment Appeal Tribunal interfere. What we cannot do is to interfere with findings of fact made by the Industrial Tribunal unless those are what are described as “perverse” in that they are made without any evidence upon which to make them.

	The Industrial Tribunal considered under a heading “The Law” the principles it should apply. It said this:

“13    In determining whether the Applicant was employed by the Respondent under a contract of employment I took into account the following factors:-
(a)	Whether there was mutual obligation between the Applicant and the Respondent to supply and perform work.
(b)	What was the purpose and intent of the parties.
(c)	What degree of control was exercised by the Respondent over the activities of the Applicant.”

In seeking to answer those the tribunal said first that:

“Mr Colborne was under no obligation to provide services on a regular basis for the Respondent.”

There the tribunal is referring to a contractual obligation. Mr Colborne’s answer to that to us was that in fact he was the only person who could do the work even at his senior age. I think Mr Colborne is there perhaps referring to a moral obligation to help out which is something different from a legal obligation for which the tribunal was looking.

	The second conclusion the tribunal reached was that:

“There was no control by the Respondent over Mr Colborne whereby the Respondent could bind Mr Colborne to work for the Respondent as and when required.”

Mr Colborne explained to us that when he was required the company made the necessary arrangements, paid him expenses for his accommodation because he had come up to London from his home in Lincolnshire, and made all those provisions to enable him to do the work.

	Mr Colborne’s case really is that he did have a contract that ran on after the end of March 1988. He is right in saying that the construction of a contract of employment is in itself a matter of law. But a contract of employment can only be established if the findings of fact by the tribunal amount to findings that will in law support a contract of employment. 

	Here, the Industrial Tribunal’s findings of fact led them to the conclusion that there was no contract of employment, that what was happening was that Mr Colborne was good enough to come in to cover for people who were on holiday from time to time and the pattern of his attendance and remuneration illustrates that.

	Mr Colborne urged upon us that there was further material not specifically addressed by the Industrial Tribunal in terms of his special knowledge (and skill) of the highly technical operation being performed with these computers; the facts that he had a key card and security pass which enabled him to get into, and work at, the highly secure complex at Wapping and that he had a coding card to enable him to as it were get into and use and be identified by the computer.

	Those, however, are all matters of fact and Mr Colborne, anxious though he is about this, has not demonstrated to us that he has an arguable case that the Industrial Tribunal made an error of law in holding that there was not a contract of employment within the meaning of the 1996 Act which would enable them to have the jurisdiction to adjudicate on what occurred when his services were no longer required by the respondent company. 

	In the absence of an arguable point of law, the appeal cannot succeed and we are obliged and is our duty to dismiss the appeal at this stage.