Appeal No.	 EAT/141/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 May 1999

Before
HIS HONOUR JUDGE PETER CLARK
LORD GLADWIN OF CLEE CBE JP
MISS A MACKIE OBE

COSTAIN BUILDING & CIVIL ENGINEERING LIMITED	APPELLANT

(1) MR D R SMITH (2) CHANTON GROUP PLC	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS I SIMLER
(of Counsel)
instructed by
MR S MOBBS
Litigation Executive
Costain Building & Civil Engineering Ltd
Legal Department 
Costain House, Nicholsons Walk
Maidenhead, Berkshire SL6 1LN	

	HIS HONOUR JUDGE CLARK:	This case raises a question as to whether an agency worker engaged in the construction industry was an employee of the building contractor.  

	In short, the Applicant, Mr Smith, was on the books of a number of agencies who supplied labour to building contractors.  He was an experienced site engineer.  One of those agencies was Chanton, the second respondent below.  

	On 12 June 1998, Mr Kumar of Chanton telephoned the Applicant to say that Costains, a contractor engaged on building work at the Tesco store at Goodmayes, Essex, required a site engineer.  He agreed to go along to the site on 15 June, and was taken on.

	It is clear that there were two contracts made.  The first was between the Applicant and Chanton, whereby Chanton agreed to pay him £13 per hour for his work at the Costain site. He received that pay gross, without deductions. 

	Secondly, there was a written contract made between Chanton and Costains, whereby Costains agreed (among other things) to pay Chanton £15.50 per hour for the Applicant’s services.

	The first question on the Applicant’s complaint of automatically unfair dismissal under section 100 of the Employment Rights Act 1996, was whether any contract existed between the Applicant and Costains, and if so, whether it was a contract of service.

	The Stratford Employment Tribunal found that there was a contract and that the Applicant was an employee of Costains within the meaning of section 230(1) of the 1996 Act.  Against those findings Costains now appeal.

	We are quite satisfied that this appeal raises arguable questions of law for the reasons advanced by Miss Simler.  In these circumstances we shall allow the appeal to proceed to a full hearing.  It will be listed for one day, Category B.  In view of the importance of this matter to the construction industry generally, we shall direct an expedited hearing of the full appeal.  There are no further directions.