Appeal No. EAT/1334/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 May 2001

Before
MRS RECORDER COX QC
MR B M WARMAN
MR R SANDERSON OBE

MR R G CRUSE	APPELLANT

OMEGA SELECTION SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

	No appearance or 
representation by or 
on behalf of the Appellant 	

MRS RECORDER COX QC

1	This appeal, which proceeds by way of a preliminary hearing, is an appeal from the Decision of a Bristol Employment Tribunal, the Chairman sitting alone, which was promulgated on 17 October 2000. 

2	The Chairman’s decision was that the Appellant’s claim for breach of contract should be dismissed.  Today, the Appellant does not attend and has indicated in correspondence to the EAT that he wishes the matter to be dealt with on the basis of his written representations.  We have therefore read carefully all the documentation in this case.  

3	The findings of fact made by the Chairman show that there was an issue in this case as to the Appellant’s status. This Appellant registered with the Respondent, the Respondent being an employment agency, but was offered no work until about twelve months later, in May 2000, at which point the Respondent’s Director, Mr Beresford, received a request for a mechanical fitter to work on a temporary contract to run for approximately eight weeks.  The request came from a Mr Davis, who was the Production Manager of a company called Whitton Technology Limited.  

4	The Appellant attended an interview, and paragraph 4 of the Chairman’s Reasons records the following facts, that:
“the applicant’s principal job was to be work upon a consignment of Rolls Royce oil pumps recently received for refurbishment, but ….”
Quoting directly from the Chairman, in his Reasons:
“I was satisfied on a balance of probabilities that there was general discussion as to other sorts of work which the applicant might be also be required to do.  It was clear that Mr Davis anticipated that the applicant would join in with the general housekeeping work which had to be done in an engineering works and that he made some very general comment about it, but I was also satisfied on a balance of probabilities that he did not make it clear to the applicant that such housekeeping work would specifically involve sweeping floors, emptying bins, and generally cleaning work areas.”
5	The Appellant started work on 22 May, and for two days, it appears that Mr Davis was not around, being unavailable due to meetings with his Managing Director, and others.  For those two days, the Appellant was performing either semi-skilled or menial tasks, which were not what he had been engaged to do.  This caused him some concern, and caused him to start speaking to other employees at the factory, particularly about their terms and conditions. 

6	On 24 May, Mr Davis was at the site, with members of the company’s management, and as he passed the Appellant considered that:
“ the applicant might have made some comment under his breath, which Mr Davis regarded as a derogatory comment, although he could not be sure as he had not heard it clearly.  He later asked the applicant to repeat what he had said, but the applicant declined.  That morning [24 May] the Applicant had been asked by Mr Davis to take one of the Rolls Royce pumps and make a start on preparatory work preliminary to stripping it down, and working upon it properly”
and the Chairman said that he was:
“ satisfied, on the evidence that had there not been an incident later that morning, as a result of which the applicant left the factory, the applicant and Mr Davis would have embarked upon that sort of work on the pumps which the applicant had understood he had been recruited to carry out.”

7	There was then an incident, which the Chairman records at paragraph 8.  It appears that:
“Mr Davis had had occasion to remonstrate with the Applicant”
over some matter and Mr Davis
“was also concerned to note that the Applicant had brought with him an electric kettle, which he proposed to use to make his own hot drinks.”

8	Mr Davis was also concerned at the news which had reached him by then, about the Applicant speaking to other members of staff:
“ making queries about wage rates and so on, and so he asked the applicant if he had a difficulty in working at the company.  The applicant said there was no difficulty, but then when Mr Davis referred to the kettle, the applicant became annoyed.”  

9	There was then an issue between the parties about the kettle and the Chairman decided, having seen both men give their evidence, that he was inclined to the view that the Applicant:
“ rather cut Mr Davis short, and did not give him an opportunity to explain what his concern was.  The applicant, I found, was disgruntled at the fact that he had spent the last 2 days on work which he regarded as beneath his skill level; suspicious about the amount that he was being paid, as opposed to the amount being paid to the respondent for his services; and having seen other people with electrical equipment of their own, which was apparently being used in the factory with impunity, I found that he concluded he was not prepared to accept the situation anymore, and he then left.  Mr Davis then telephoned Mr Beresford, and told him what had happened, as he saw it;  the applicant subsequently telephoned Mr Beresford, and in the course of the conversation, confirmed that the incidents reported to Mr Davis had taken place…”
 although at this stage, he:
 “tried to get across that he was generally unhappy about the way events had transpired at the company, and made a number of complaints about what had happened”.
It seems that that was not a productive conversation, because it ended fairly abruptly and subsequently, 
“Mr Beresford returned the applicant’s CV, making it plain by so doing that he was not intending to keep the Applicant on his books any longer.”  

10	The Respondent’s case was that there was no relationship of employer and employee between the parties, although it was conceded if there was, that the Respondent, that is the Respondent Agency, would be vicariously liable for any acts or omissions of Mr Davis. It was also denied that any breach of contract had occurred.  

11	The Appellant did not contend that he was an employee of the Respondent from the outset, but his argument was that once he had been offered and had accepted an assignment, he was for the duration of that assignment, an employee of the Respondent.  He maintained that Mr Davis was therefore his employer’s agent; that he had committed a repudiatory breach of contract, that the Appellant accepted that breach of contract and that that brought the contract of employment to an end.  He did not accept that the contract came to an end when Mr Beresford returned his CV, saying that that merely removed him from the Respondent’s books.  

12	In relation to the Applicant’s status, the Chairman, after considering all the evidence, and expressing himself to be somewhat hesitant about it, determined that issue in the Appellant’s favour, finding that he was an employee of the Respondents for the brief period of time for which this placement lasted.  The remaining issue was, therefore, whether Mr Davis had repudiated the contract by his actions over the two and a half days for which it lasted.  

13	The Chairman’s clear finding, recorded in paragraph 15 is that he had not.  He said that he had already made it clear that he had found that:
“although the applicant was employed primarily to work on the Rolls Royce pumps it was not intended or agreed that he would be engaged exclusively upon that work and I do not regard it as a repudiatory breach of contract for an employer (acting by his agent in this case) who is temporarily unable to give the instruction to a new employee that he wishes to give, to give that employee other less skilled work on a purely temporary basis, so long as he continues to pay him the contractual hourly rate.  Although I can envisage certain circumstances in which an employer may be in repudiatory breach of contract where it consistently denies a highly skilled man the opportunity to exercise his craft and insists on his performing menial duties, such a situation is very far from this case.  The applicant knew that this was a temporary difficulty caused by Mr Davis’s commitments elsewhere; and by the time that the applicant elected to leave, he had already begun the preparatory stages prior to doing the work on the pumps which he had expected to do.”

14	The Chairman concluded that:
“What triggered the Appellant’s decision to leave was his taking exception to Mr Davis’s attitude on other matters
16.  I am not therefore satisfied on a balance of probabilities that there was any breach of contract here for which the respondent is vicariously liable.”
The Appellant’s claim was therefore dismissed.

15	Following that decision, the Appellant then wrote two letters to the Employment Tribunal seeking a review of the Decision, on the grounds that the interests of justice required it.  In a subsequent Decision promulgated on 2 November, the Chairman dismissed that application, finding that it was simply an attempt to persuade the Tribunal to his point of view, and that that was not an appropriate use of the review procedure.  

16	The Applicant then appealed to this Appeal Tribunal, in a Notice of Appeal which contains four grounds.  These grounds were identified as being a failure to identify clear documentary evidence that the contract in dispute, between the parties, was not a contract of service, but a contract for services.  Secondly, as a consequence, returning an incorrect finding, denying that the contract had been repudiated and accepted.  Thirdly, failing to take into account the breach of an implied term in the contract, that is a duty not to break the relationship of trust and confidence between the parties, and fourthly, the fact that the Employment Tribunal dismissed the Applicant’s claim, contrary to law.

17	We have also read a lengthy Skeleton Argument prepared by the Appellant himself and we have considered the points he makes there, very carefully, together with his further letter to which a newspaper article was attached, which he invited us to read.  However, we find ourselves unpersuaded that there was any arguable error of law here, on the part of this Chairman.  

18	It is somewhat curious that part of the Appellant’s Skeleton Argument, and indeed the first ground of his Notice of Appeal seeks to criticise the Chairman for his finding that he was employed by the Respondent, for the period of the assignment, contending that there was always a contract for services, although in his Skeleton Argument, he seems to recognise that if no contract of employment had been found, the Employment Tribunal would not have had jurisdiction to determine his complaint.  

19	It is clear that this Appellant is very critical of the whole matter of agency workers, and agency employment, and of what he regards as exploitation of agency workers, and as 

the Chairman observed in paragraph 13 of his Decision:

“13  It has been remarked on a number of occasions that this is an area in which the law is by no means clear.  Workers such as the applicant are in an anomalous position in that they do not have clearly expressed contracts for services but equally do not feel themselves to be self-employed.”

However the Decision, on that part of the case, was clearly in the Appellant’s favour, so we shall concentrate on the arguments that there is an error of law in the finding that there was no breach of contract here.  It seems to us for the reasons given above, that the Chairman, as he was entitled and is indeed required to do, hearing all the evidence and weighing up the competing contentions, clearly preferred the Respondent’s case to the Appellant’s.  

20	He explained his reasons fully for so finding, and we can see nothing in the Tribunal’s Reasons which could be said to amount to an arguable error of law.  Our ability to interfere with the Employment Tribunal’s Decision is, of course, restricted to those cases where an error of law can be identified.  No such error being identified, in this case, this appeal must be dismissed.