Appeal No. EAT/0235/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 June 2001

Before
THE HONOURABLE MR JUSTICE NELSON
DR D GRIEVES CBE
MR P M SMITH

(1) MR A J HUTCHINSON (2) MR J R MASKELL	APPELLANT

SDS CONSTRUCTION SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR T PULLEN
(Of Counsel)
Instructed by
Messrs Thompsons 
Solicitors
Congress House
Great Russell Street
London
EC4Y ODS	

MR JUSTICE NELSON

1.	This is an Appeal against the decision of the Employment Tribunal at London Central on 4 January 2001 in which by unanimous decision they decided that the Applicants were not employees nor workers and accordingly the Tribunal had no jurisdiction to deal with their claim for unfair dismissal, unlawful deduction of wages and detriment.

2.	The evidence before the Tribunal consisted of the Applicants themselves, that is Mr Hutchinson and Mr Maskell, and a Mr Dukelow and Mr Dyerson on behalf of the Respondents.  The Tribunal decision is set out over some 9 pages in which the facts and the law are analysed together with the submissions and then findings made and conclusions reached.

3.	The essence of the appeal is that firstly the decision of the Employment Tribunal was perverse in various respects and generally, and secondly, that they failed to examine the matter properly and in particular to question firstly, whether the Appellants were in business on their own account and whether there was true mutuality relating to the question of whether they were employees or not.

4.	In relation to the question as to whether they were workers it is submitted that that there is no proper examination or consideration of the features necessary in order to determine that question so that one is left with the feeling that the wrong test was applied in that they may have applied the test for ‘employee’ and concluded if not ‘employee’ therefore not ‘worker’ whereas the test is different and should have been separately considered.  It was a wrong conclusion to say on the facts that the Respondents were clients or customers.

5.	We are quite satisfied that the question of perversity cannot be sustained.  The Tribunal set itself the task of considering the facts which it did in detail.  It recited the submissions and it came to its conclusions.  In doing so it balanced out the various different features.  What has been particularly prayed in aid today was the failure by the Tribunal for example to take into account the fact that the men were paid weekly, that they turned up for work at specific times, that they were, particularly in the case of the younger employee, Mr Maskell, provided with tools and clothing; that they both were, to some extent, supervised, that they put in invoices and that none of these matters were not properly weighed.

6	But when one looks at the conclusions and considers for example paragraphs 12, 13 and 14 of the decision one can see that those points were specifically addressed and considered by the Employment Tribunal and in effect the real criticism is not that they did not examine, or cannot be that they did not examine properly, but that they came to a conclusion which was perverse.

7.	It is true as Mr Pullen has submitted to us that the Tribunal did not set out for itself the test to be applied within its decision, for example, the traditional test in the Ready Mixed Concrete case and follow that through item by item.  Whilst it did not do that we are satisfied that it did properly consider the relevant material and the relevant pointers as it ought to have done in paragraphs 12, 13 and 14 of its decision.

8.	It is said in relation to the particular points upon which reliance was made, though reliance was placed upon the whole of the skeleton argument and grounds, but the particular points which exemplified it is submitted the error into which the Tribunal fell was the finding that they were in business on their own account at paragraph 14 and that there was no mutuality of obligation.  There was no evidence as to this it was submitted and therefore the finding could not have been reached. 

9.	In the course of the argument before us however, it was accepted that one of the witnesses Mr Dyerson, called on behalf of the Respondents did in fact say that an employee could work elsewhere and there was no obligation on the employer to provide work.  It was a bare simple assertion of that kind and contrasted with the evidence of the Appellants, Mr Pullen submits of no value, but again it is demonstrated that there was evidence before the Tribunal upon which it could make its finding.

10.	The Tribunal had to assess that evidence and weigh it against the evidence of the Appellants and it plainly did so.  The Tribunal were on the face of their decision influenced by the fact that the advert referred to the registration card and that the Appellants obtained such a registration card.  Indeed, they started work on 1 November, when they were taken on and on 5 November they received a letter from the Inland Revenue referring to the registration card and to them as sub contractors.  That is the letter from the Revenue of 5 November 1999 by which they obtained temporary cards with such Inland Revenue status and presented them to the employers in order to be paid.

11.	Now the Tribunal took this too much account, Mr Pullen submits, but it plainly was a relevant matter for them to consider and weigh in the balance together with other evidence which they did.  We are satisfied furthermore that they gave, separate consideration to firstly, the question of whether the Appellants were employees and secondly the question as to whether they were workers.  And again although the test is not recited in the decision itself we are satisfied that the Tribunal approached it properly.   

12.	At the end of the day the questions were ones of fact and law.  There is no basis for saying that the Tribunal improperly applied the appropriate law.  So, in the end the matter comes down to a point of perversity and I repeat what we have said earlier that we are satisfied that this decision cannot in any material particular nor in its conclusion properly be described as perverse.

13.	The Tribunal, although it had made its findings on employee and worker went on to deal with the question of detriment and that is also challenged by Mr Pullen.  We are however again satisfied that the Tribunal dealt adequately with the question of detriment in the final paragraph of their decision at paragraph 17.  For these reasons we dismiss this Appeal.