Appeal No. EAT/782/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 November 2000

Before
HIS HONOUR JUDGE J ALTMAN
MS J DRAKE
DR D GRIEVES CBE

MR RAYMOND FRANKS	APPELLANT

(1) REUTERS LTD (2) FIRST RESORT EMPLOYMENT LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR J WARD
(of Counsel)
Instructed by:
Messrs Sternberg Reed Taylor&Gill
Solicitors
12-18 Station Parade
Barking
Essex IG11 8DN	

JUDGE J ALTMAN

1	This is an appeal from the decision of the Employment Tribunal sitting at London North on 26 April 2000.  It comes before us by way of preliminary hearing to determine if there is a point of law capable of full argument before the Employment Appeal Tribunal.  

2	The issue before the Employment Tribunal was to determine by way of preliminary hearing whether the relationship between either or both of the Respondents and the Appellant was that of employer and employee; whether the Appellant was an employee for the purposes of the application that was before the Tribunal. 

3	This is another of those many cases which raises the difficult and involved question of fact and law as to whether or not where an agency, which, in one form or another, provides someone to work for what I will loosely describe as a “client”, there is created either as between that employment agency and the Appellant, or between the client of the employment agency and the Appellant, a relationship of employer and employee, or some other form of relationship.  

4	Many tests were propounded by the Courts over the last century, which varied from time to time, and in relation to different social conditions.  In this particular case the Employment Tribunal arguably seem to have focused on the words “mutuality of obligation” and, it seems to us, that the following questions arise.

5	First, as a matter probably of mixed law and fact, whether on the facts found by the Employment Tribunal, they erred in concluding that they could not construe a contract of employment between the Appellant and either Respondents.  

6	Secondly, there is an issue as to who was responsible for paying the Appellant.  Whilst the Employment Tribunal found that it was the Second Respondents, it seems to us there is an argument as to what was the reality, bearing in mind the fact that it was the First Respondents who was the source of that money.  

7	Thirdly, there is an issue as to whether or not the Second Respondents were the agents of the First Respondents for all, or some, of the purposes of the various ingredients of the working environment and terms of the Appellant. 

8	Fourthly, there is the issue as to what consequences, as a matter of law or fact, follow from the fact that the contractual documents between the Respondents are argued to have described the Appellant as an employee, and whether the Employment Tribunal addressed that issue.  It seems to us that those are all issues which are capable of argument and there are others, set out in the Notice of Appeal and the Skeleton Argument we have seen, which are also capable of argument in full.

9	There is one area which we do not consider gives rise to an arguable point of law.  It is contended, on behalf of the Appellant, that the Chairman evinced bias, or at least an appearance of bias, because, having permitted the Respondents to produce a box containing terms and conditions of employment for those employed by the First Respondents, and they having, we are told, cross-examined upon it, the Appellant’s representatives were refused access to it.  

10	Without seeing the response of the Chairman, we would have concluded what he himself did in fact put in his response, which was that he, and no doubt the members also, formed a judgment that these documents were not relevant, and that was the reason for their being excluded.  It may be part of the argument, in the full hearing, that the Employment Tribunal did not consider all the relevant evidence, and that argument is available, but there is no available argument that the Chairman was biased, and we do not permit that to proceed forward. 

This matter will be listed for half a day, Category C, Skeleton Arguments to be furnished by all parties, not less than 14 days before the hearing.