Appeal No.	 EAT/613/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 July 1999

Before
HIS HONOUR JUDGE D M LEVY QC
MRS R CHAPMAN
MRS T A MARSLAND

MR E FREWIN	APPELLANT

SECRETARY OF STATE FOR TRADE & INDUSTRY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON

	JUDGE LEVY:	On 5 December 1998, Mr E Frewin made an application to an Industrial Tribunal against the refusal by the Department of Trade and Industry to accept him as an employee of a company, Artlines Ltd, which went into liquidation on 21 August 1998.  The Secretary of State submitted an IT3 in the shape of a letter stating grounds of resistance on 11 January 1999, which we find at page 11,12, 13, 14 and 15 of the bundle, setting out why in some length he did not consider Mr Frewin to be an employee.  

1	There was a hearing on this point before the Chairman of a Tribunal sitting at Reading on 19 March 1999 and on 30 March 1999 the decision and the extended reasons were sent to Mr Frewin by the Chairman.  The Chairman held that the Applicant was not an employee of the company and therefore the application failed. 

2	From that decision, Mr Frewin appealed by a Notice of Appeal dated 4 May 1999.  He is representing himself at this PHD hearing this morning.  He has argued manfully that the decision was wrong.  He has suggested to us that if those who have paid monies towards national insurance are not to be treated as employees when companies go into insolvency as happened in his case, the law is unfair.  He has submitted that there are errors of law in the decision of the Tribunal.

3	While we have sympathy with him in disliking the present state of the law, and we agree with him that there are some trivial errors on subsidiary facts to be found in the decision, but it is clear to us that the learned Chairman properly explored the appropriate perimeters before deciding that Mr Frewin was not an employee.  The errors to which we avert appear in paragraph 5 of the extended reasons.  It is apparent that, prior to the incorporation of the company, Mr Frewin’s wife successfully conducted a business and that the company was incorporated in 1977, and not in 1997, as it is stated in the extended reasons.

4	It is apparent from paragraph 11 of the Extended Reasons that the Employment Tribunal looked carefully at the matters which pointed to the Applicant being an employee and at matters which pointed the other way before coming to the conclusion that when the axe came down, when it determined that he was not an employee.  

5	Mr Frewin persisted in argument that the decision of the Chairman did not properly understand the decision in Secretary of State for Trade and Industry v Bottrill.  That decision was then reported only in The Times, but it is now reported in 1999 IRLR p326.  We have carefully looked through the whole of that judgment in the light of Mr Frewin’s decision and we have come to the conclusion that the construction put on that decision by the Chairman was not erroneous but was entirely right.  In the final paragraphs of that decision, with some regret, the Master of Rolls came to the conclusion that the appeal failed.  He stressed that it was essential for the Tribunal to look at the whole history of “employment” of a complainant and that it was for the Tribunal, as an industrial jury, to take all relevant factors into account in reaching its conclusions, giving such weight to them as it considers appropriate.  One of our number sat in the decision against which the appeal to the Court of Appeal was made.  

6	It is our judgment that the Tribunal below did take into account all relevant factors in coming to its decision which was clearly right.  In these circumstances, sympathise though we do with Mr Frewin, this appeal has no hope of success.  Accordingly, we dismiss it at this stage.