Appeal No.	 EAT/0831/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 November 2001
Judgment delivered on 18 January 2002

Before
HIS HONOUR JUDGE D PUGSLEY
MR D J JENKINS MBE
MISS C HOLROYD

ESSO PETROLEUM COMPANY	APPELLANT

(1) ANDREA JARVIS & OTHERS 
(2) BRENTVINE LIMITED	RESPONDENTS

Transcript of Proceedings

JUDGMENT

RESERVED DECISION

Revised

	APPEARANCES

For the Appellant	MR DAVID GRIFFITH-JONES QC
(of Counsel)
Messrs Lovells
Solicitors
65 Holborn Viaduct
London
EC1A 2DY	
For the 1st Respondent

For the 2nd Respondent

For the 6th Respondent	MS ANDREA JARVIS
(the Respondent in person)

MS DIANE BAILEY
(the Respondent in person)

MR T LINDEN
(of Counsel)
Messrs Bond Pearce
Solicitors
Town Quay House
7 Town Quay
Southampton
SO14 2PT

HIS HONOUR JUDGE D PUGSLEY

1	This is an appeal from the decision of the Southampton Employment Tribunal.  The sole issue we are asked to consider is whether the Employment Tribunal erred in law in determining that the two Applicants, Mrs Jarvis and Mrs Bailey were the employees of Esso Petroleum Company Limited, the second Respondents, in the case before the Employment Tribunal.

2	The Employment Tribunal only heard evidence from, and submissions on behalf of, one of the Applicants, Mrs Jarvis, but they were satisfied that they could deal with her case and that of Mrs Bailey, from whom they did not hear, on the same footing.  It was not suggested by any of the parties that there was any difference or distinction to be drawn in respect of the individual cases.  The Tribunal’s findings of fact applied in the cases of both Applicants save where they specifically mentioned a distinction between the two.  The Tribunal heard evidence about agency workers in general, rather than the two individuals, although there were some particular facts concerning the two Applicants which did emerge.  It was not suggested before the Employment Tribunal that either Applicant fell outside the common run or experience of agency workers and their decision specifically proceeded on that basis.

3	Mrs Jarvis worked continuously at the Fawley Refinery of Esso Petroleum from August 1990 until June 1999; Mrs Bailey from December 1988 until October 1999.  Both had been introduced to Esso by Brentvine, the first Respondent at the Employment Tribunal hearing.  Individuals such as the Applicant approached Brentvine either in response to a newspaper advertisement or on their own initiative in seeking work.  Brentvine took the details of each potential candidate and a copy of his or her curriculum vitae.  When one of Brentvine’s clients, such as Esso, required staff, details of the roles were passed to Brentvine who would then pass on the details including the curriculum vitae of potentially suitable workers to the client.  Esso then interviewed one or more of those individuals and chose the successful applicant.  Brentvine’s role, as the Tribunal found, in the selection and recruitment process was limited to selecting a panel or pool of potentially suitable staff based on its knowledge of these workers and their curriculum vitae and of their knowledge of the client.

4	No written contract of any sort between Brentvine and aspiring agency workers existed until an individual was accepted and then taken on by the client.  At that stage a contract confirmation note was issued to the worker.  An example appears at page 88 of the bundle.  Such contract notes were for a six month duration since they arose as a result of Esso’s six monthly purchase orders; in the case of Mrs Jarvis and Mrs Bailey they would be continuously renewed and/or repeated and amended where necessary to take into account any change in the rates of pay or overtime.

5	The terms of engagement to which confirmation notes refer, repeatedly and predictably state that the agreement between Brentvine and the worker is a contract for services and not a contract of employment.   They go on to state that the worker is free to decline any offer of work by Brentvine; and there is no obligation on either party either to provide or to undertake work.  In the event of ill health or other reason for absence the worker is directed to contact the client directly rather than Brentvine.  Miss Stainer’s unchallenged evidence was that rarely, if at all, did workers contact Brentvine by reason of their inability to work.

6	Once Esso selected the successful candidate, having conducted its own interviews, Esso sent Brentvine a purchase order.  Such a step could on occasion be up to four weeks after the individual concerned had started work.  There are examples of purchase orders in the papers.  That order contains a job description, the basic weekly hours required, overtime rates, the relevant supervisor and the six month period of the engagement.  In the case of Mrs Bailey and Mrs Jarvis such purchase orders were regularly repeated during their period of work at the Refinery.

7	Individual personnel, including the Applicants in these proceedings, were supplied by Brentvine to Esso by virtue of an annual agreement between Brentvine and Esso, an example of which appears in the papers.  It was accepted that this was a representative example of the repeated annual contracts throughout the relevant period.  The contract is stated to be for the provision of personnel services at Fawley Refinery.  It is summarised at paragraph 12 of the decision:

“a)	That Brentvine will maintain strict discipline and good order among its “employees, agents and sub-contractors” and not permit any of them to prejudice Esso’s interests (page 222);
b)	That Brentvine shall on Esso’s request, remove any of its “employees” from the Refinery forthwith and supply a replacement (page222/223);
c)	That Esso can terminate their requirement for particular personnel on 7 days written notice (page 221);
d)	That Brentvine will ensure that all of its “employees” are fully aware of Esso’s drugs and alcohol policies (which should be adopted by Brentvine) and that none of its “employees” breach such policies (page 223/224);
e)	That Esso will not be liable to pay compensation in relation to any claim (including unfair dismissal) arising out of the termination by Brentvine of any worker’s services.

8	Brentvine did not provide a disciplinary procedure in relation to its personnel.  The only relevant contractual document between Brentvine and the agency workers was the terms of engagement together with a periodic contract confirmation note.  The undisputed evidence was that there was little if any contact between Brentvine and agency workers.  When a representative from Brentvine went to the Fawley Refinery it was primarily for discussions with Esso personnel and such contact as there was with the agency workers was more of a social than professional matter in both tone and content.  The Tribunal found that it was very rarely that any agency worker visited the Brentvine premises and that when this did happen it was always to discuss the rates of pay or grading both of which were controlled by Esso.  

9	The Tribunal set out their findings at paragraphs 15, 16 and 17 of their Extended Reasons as follows:

“15	Once a worker has been chosen by Esso, he/she:-
	a)	Signed a confidentiality undertaking (tab 24 in R1), whereby the worker agreed, inter alia, to treat sensitive information etc in confidence, and in particular not to discuss with or disclose to Brentvine any confidential information or knowledge acquired whilst at Esso;
	b)	Agreed to abide by and indeed signed Esso’s Business Ethics Policy (part of which appears at page 20 of exhibit A1);
	c)	Agreed to abide by and signed Esso’s Conflict of Duty and Interests Policy (not seen by the Tribunal);
	d)	Undertook initial training supplied by Esso including Health & Safety Procedures and an explanation of Esso’s Drugs and Alcohol Policy for the Fawley Refinery;
	e)	Worked alongside Esso’s direct employees doing comparable or equivalent work and indeed there was no difference or distinction in the work allocated to employees or agency workers;
	f)	Was under the day to day control of Esso (as Mr Adams accepted) and was treated in the same manner as Esso’s direct employees;
	g)	Approached his/her Supervisor with any requests for time off work;
h)	Was supplied by Esso with whatever equipment was required to undertake his/her duties;
	i)	Received. along with direct employees, training where necessary (e.g. new secretarial computer software); but did not receive career development training

16	As already noted, there were no Esso disciplinary procedures in relation to agency personnel (as opposed to Esso direct employees); although in fact Mr Adams confirmed that they had never had any disciplinary problems with any of the staff provided by Brentvine.  Mr Adams did however make plain that, in the event of problems arising at the Refinery concerning either the conduct or the capability of any agency personnel, the practice was that the Agency concerned would be informed of the circumstances and invited to deal with the relevant individual and that on occasion Esso had supplied witnesses for disciplinary hearings undertaken by Agencies.  Esso would be informed by the Agency of the outcome of any disciplinary procedures/action and of the Agency’s decision.  Mr Adams confirmed that, if in Esso’s view an insufficiently robust view was taken by an Agency in respect of a disciplinary problem in particular, then Esso could and indeed would remove the entry pass to the Refinery from the individual concerned thereby effectively preventing that person from coming on to or working at the site.  In effect, Esso retain control of who it did, and who it did not want to work at the Refinery.

17	Turning to remuneration and hours of work, the relevant facts are as follows:-
	a)	The agency worker completed a weekly time sheet, showing the hours worked, which was approved and countersigned by the appropriate Supervisor (see tab 22 in R1);
	b)	The time sheet was then sent to Brentvine, who paid the agency worker direct;
	c)	The rates of pay for individual categories of agency workers were specified by Esso, according to grades, which were also specified by them; and no deviations from the specified rates were allowed.  Page 216 at tab 23 of R1 sets out an example of the Agency rates agreed by Esso.  In other words, the apparently common place situation, where an Agency is paid a lump sum by a “client” for provision of personnel, and can then choose and negotiate with individuals how much it retains and how much is passed to him/her, did not apply;
	d)	Periodically, either on renewal of Brentvine’s annual contract or at other times, Esso would increase the rates payable to the agency workers.
	e)	It appears that Brentvine’s commission as agent depended upon the rates allowed by Esso for agency workers.  Mrs Stainer’s unchallenged evidence was that there was little by way of negotiation between Brentvine and Esso.  The proposed new annual contract was sent to Brentvine by Esso on a “take it or leave it” basis;
	f)	Tax and National Insurance were deducted by Brentvine in the exercise of their duty under Section 134 Income and Corporation Taxes Act 1988, save where the agency worker’s services were supplied by a service Company;
	g)	Neither Brentvine nor Esso made any payments to agency workers for hours which were not worked, whether due to holidays, illness, or any other reason for absence;
	h)	No pension scheme was available to agency workers, in contract to Esso’s direct employees;
	i)	There was no substantial differential in the rates of pay between direct employees on the one hand and agency workers on the other.  Mr Adam’s unchallenged evidence was that direct employees started off at a lower level but, after time, overtook agency workers;
	j)	In the case of Ms Jarvis, it was not disputed that at the end of her first six month engagement, on the successful completion of a “turnaround” she received a “cash bonus” from Esso of £250.00 and indeed engaged in direct negotiations with Esso concerning an uplift in her rate of pay;
	k)	As already noted, the normal hours of work for the relevant grade of agency worker were specified by Esso and communicated direct by them to the individual concerned.  If an agency worker wanted some time off he or she would approach the relevant Esso supervisor (rather than Brentvine).  The only way in which Brentvine would discover that an agency worker had been absent, for whatever reason, was via completed time sheets following such absence.
	l)	The undisputed evidence was that there was never any disagreement between Esso and any of the Agency workers concerning holidays or other time off requested; and that both Ms Bailey and Ms Jarvis took variable amounts of holiday from year to year.  On occasions, both of them took substantially more holiday than the direct employees of either Brentvine or Esso were allowed.  In part, in Mrs Jarvis’ case, this was due to the fact that her primary role was as a “Turnaround Clerk” and that “Turnarounds” (where a section of the Refinery is shut down for cleaning) were infrequent and indeed declining at the Refinery.  Whilst she was allocated by Esso to other duties when not engaged on “Turnarounds”, their requirement for her was plainly reasonably flexible.  In the case of both Applicants it should be noted that whilst most of the agency workers supplied by Brentvine to Esso were long term, they also regularly supplied “holiday cover” staff;
	m)	Mr Adams confirmed that, in the event of long term or persistent absence through illness on the part of Agency personnel, Esso adopted an approach of “wait and see”.  Much would depend upon the individual’s prognosis or outlook, presumably ascertained after discussions with the individual concerned.  Certainly, there was no question of immediately withdrawing the pass to the Refinery and seeking a replacement.  This approach was consistent with what we find to have been the general attitude towards its agency workers, which can be described as reasonable, inclusive and considerate.  For example, it was specifically accepted by Mr Nicolle for Esso that Ms Jarvis was part of the Turnaround “team” for 9 years; indeed, she was not only the local safety representative but also organised team social events etc;
	n)	As noted, Esso had the power to terminate the engagement of any Brentvine personnel by giving 7 days written notice.  It was clear from Mr Adams evidence that the reasons for termination of both Ms Bailey and Ms Jarvis’ engagements were akin in employment law terms to redundancy.  1999 was plainly a difficult year for Esso, with an over supply of both crude and refined oil coupled with very low margins.  As a result, Esso reviewed its staffing levels at the Fawley Refinery as part of a cost cutting exercise.  In the case of Ms Jarvis, she was the only Turnaround Clerk at the Refinery.  Normally, there was one Turnaround per annum at at least some part of the site, although frequency had been declining.  However, by the summer of 1999, it was clear that the next Turnaround at the Refinery would not be until the Autumn of 2001.  They therefore instructed Brentvine to terminate Ms Jarvis’ engagement.  The letter at tab 25 of R1 to Ms Stainer explains the circumstances, instructs Brentvine to tell Ms Jarvis that her services were no longer required, when she should be told and required them to give her one week’s notice.  A similar communication would it appears, have been sent and received in relation to Ms Bailey in October 1999, although we did not see it.  It was however clear from Mr Adams evidence that, as a result of the staffing levels review, secretarial staff at the Refinery were cut at that time.  In a clear and acknowledged attempt to minimise redundancies among direct employees, agency workers such as Ms Bailey were not retained.”

10	The Tribunal then referred to the various authorities to which they had been referred.  In paragraph 21 they set out their directions of law as follows:

“21	From our reading and understanding of the combined authorities, we deduce and adopt the following principles as relevant to the issue before us:-
	a)	It is for each Applicant to prove that she was an employee of either Esso or Brentvine.  It we are not satisfied, on the balance of probabilities, in respect of either Respondent, then it follows that the Applicant(s) are self employed;
	b)	There is no rule of law that an agency worker cannot be an employee of either the Agency of the “client”.  Whether or not an agency worker is an employee will depend upon the facts as found by the Tribunal in each particular case.  Where the relevant contract is wholly contained in a document or documents, the questions whether the contract is one of employment is a questions of law to be determined upon the true construction of the documents in its factual matrix;
	c)	Since all the evidence we heard concentrated on the Applicants engagement with Esso (and indeed there was no mention of either Applicant working at any stage for any other “client”), then, insofar as is necessary, we concentrate on and construe the relevant terms which governed both Applicants whilst they were undertaking specific, although lengthy, engagements with Esso.  There was no “general engagement” governing the relationship between Brentvine and the Applicants for periods when they were not undertaking work for Esso as a client;
	d)	That since we are dealing with a specific rather than a general engagement, the absence of mutuality of obligations on the part of the parties is irrelevant;
	e)	That, notwithstanding Mr Nicolles’s submission, the length of the Applicants continuous engagement with Esso are factors to be taken into account when considering their applications; and that it is incorrect merely to focus on the parties intentions and the position at the time of commencement of their respective engagements.
f)	That the Tribunal must, without adopting a merely mechanical/mathematical approach, balance all the competing and relevant factors, none of which are individually pre-eminent in considering whether or not the Applicant or either of them were employees.  Relevant questions include whether the Applicant provided her skill and work in return for remuneration; whether there was a sufficient degree of control on the part of either party to enable the individual fairly to be called a servant; and whether there are any other factors inconsistent with the existence of a contract of service.  Put another way, were the Applicants, or either of them, in business on their own account with a view to profit?”

11	The Tribunal first considered the Applicants’ claim that they were the employees of Brentvine.  For the reasons they gave in the decision they decided that neither Applicant was an employee of Brentvine.  They did not attach any significance to the fact that one or both the Applicants had brought claims against Brentvine alone under the Working Time Regulations given the ambit and scope of those Regulations which deal with workers rather than employees.  There is no appeal by the Applicants against that decision.

12	The Tribunal then considered the claim against Esso.  They did so in paragraphs 26, 27 and 28 as follows:

“26	Turning to the Applicants claims against Esso, the first point to be noted is that there were no contracts, written or oral, between the parties.  There were however a large number of factors which are consistent with contracts of employment subsisting.  The Applicants were interviewed and chosen by Esso, not Brentvine.  When they worked, they were paid.  They received fixed hourly rates of pay with uplifts for “overtime” when available.  Rates of pay were increased from time to time, in line presumably with salary increases for direct employees, since Mr Adams confirmed there were no substantial pay differentials between agency workers and employees.  They undertook similar work to comparable direct employees and there was no difference in Esso’s treatment of them as opposed to their employees.  It was accepted that Ms Jarvis was “part of the team”.  They received initial training concerning Esso’s site procedures and, where necessary, to cope with changing working practices at the Refinery.  They were under day to day control of Esso by means of its nominated supervisors.  Permission was sought and granted by supervisors for periodic holidays and other time off.  The Applicants signed confidentiality undertakings, and also copies of Esso’s business ethics and conflict of duty and interests policies.  In the case of Ms Jarvis, Esso paid her a bonus, together with others in her “team”; at the end of one particular Turnaround: discussed/negotiated rates of pay with her; and allocated other work to her when no Turnarounds were in progress.  Both Applicants worked continuously at Esso for very substantial periods; Ms Jarvis for nearly 9 years; Ms Bailey for nearly 11.
27	There are other factors which point in the opposite direction.  There was no grievance procedure; and no formal disciplinary procedure.  Additionally, neither Applicant received paid holidays or sick pay or participated in the Company Pension Scheme.  Both of them on occasion took annual holidays substantially greater than that which direct employees were allowed (although this was always by agreement with Esso and no objection was ever raised).  Both Applicants engagements were terminated in situations where redundancy payments would have been payable, had they been employees; neither received any payment nor indeed anything other than nominal notice.
28	Weighing all these matters together, we have come to the clear and unanimous conclusion that the Applicants have proved that they were in fact employees of Esso.  we think that, over their years at the Fawley Refinery both Applicants became very much part of their respective teams, working similar weeks on similar work with direct employees under the control of an Esso Supervisor, who could allocate alternative duties to them (e.g. Ms Jarvis when not engaged on “Turnaround” work).  There was no suggestion that the Applicants could provide substitutes; indeed that would not be possible since each individual at the Refinery is issued with an Esso pass.  There was no opportunity for either Applicant to profit from sound management in what were essentially clerical/secretarial roles.  They were paid the going rate for the work they did.  There was no evidence of either Applicant undertaking or wishing to undertake substantial overtime to boost individual earnings.  It appeared from Ms Jarvis unchallenged evidence that, when times were busy, for example during a Turnaround, all in the department or team concerned would help.  The only financial risk run by the Applicants was that if they did not work, they received no pay.  That, however, in our view does not of itself preclude the existence of contracts of employment, particularly where both applicants were continuously engaged for such substantial periods.  Whilst Esso had no formal disciplinary procedure governing Agency workers, it could and did police such personnel.  If Esso considered a disciplinary sanction insufficiently robust, it could and did speak to the Agency concerned; and, significantly in our view, it could and did prevent individuals coming onto or working on the site by withdrawal of the site pass.  In effect, Esso retained the power of immediately terminating the engagement of any agency worker for any reason Esso considered sufficient.  Finally, whilst both Applicants did on occasion take longer holidays than others, that on its own is insufficient evidence to suggest that they were in reality undertaking work at the site in business on their own account and with a view to profit.  Accordingly, we decide the preliminary point in their favour and against Esso.”

13	The central thrust of the argument of Mr Griffith-Jones QC, who appears for Esso Petroleum, is one of such beguiling simplicity that it could at first blush be thought to be simplistic.  Mr Griffith-Jones QC submits that at the very heart of this decision there are two mutually inconsistent and totally irreconcilable propositions – that the Applicants were the employees of Esso but that there was no contract of any sort between the Applicants and Esso.  

14	Unrepresented Applicants, and sometimes unrepresented employers, say at Employment Tribunals that they do not have a contract.  By that they simply mean that they do not have a written contract nor have they ever received any particulars of employment as required by the statute.  It would be grossly insulting to this carefully drafted decision to interpret any of the findings in this decision in that way.  In paragraph 26 the Tribunal note that the first point is that there were no contracts written or oral between the parties.  At paragraph 36 b) the Tribunal reiterate the point as:

“Indeed as already noted, there was no contract of any sort between the Applicants and Esso.”

Mr Griffith-Jones QC submits that if there is no contract there can be no question of there being a contract of service.  The point, he says, is self evident, but as a precaution cites Hewlett Packard v O’Murphy EAT/612/01 and Serco v Blair & others EAT/345/98, a decision which was before the Employment Tribunal but with which they failed to deal in the Reasons.  If there was no relevant contract between the Applicants and Esso, there was no issue between the parties that there could not have been a contract of service as defined by Section 230(1) and 230(2) of the Employment Rights Act.

15	Mr Griffith-Jones QC argues that the Employment Tribunal’s error is reflected in its holding at paragraph 21 d) that the “absence of mutuality of obligations on the part of the parties [was] irrelevant.”  It is well established, he submits, that mutuality of obligations is part of the irreducible minimum for a contract of service.  He cites the House of Lords case in Carmichael v National Power [2000] IRLR 43 at paragraph 18, and the Court of Appeal decision in Montgomery v Johnson Underwood [2001] IRLR269 at paragraph 23.  Mr Griffith-Jones QC’s submission is that the Tribunal failed to recognise the significance of the issue which was before it and that the Employment Tribunal allowed itself to be seduced by what is described at paragraph 26 as:

“… factors which are consistent with contracts of employment…”

Quite simply what is submitted on behalf of he Appellant is that if there is no contract the fact that circumstances exist which are consistent of a contract of employment is irrelevant since those circumstances are merely the product of the contracts between Esso and Brentvine, and Brentvine and its agency workers.  The case of Stevedoring & Haulage Services v Fuller [2001] IRLR 627 Court of Appeal, is cited as authority for the proposition that it is not possible to transform a relationship which was not contractual into a contract of service by implying terms into the relationship.  

16	Mr Griffith-Jones QC directs our attention to the Employment Agency Act 1973 and in particular to its definition section.  Section 13(2) and 13(3) provides that:

“(2)	 “employment agency” means the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding workers employment with employers or of supplying employers with workers for employment by them.
(3)	For the purposes of this Act “employment business” means the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of supplying persons in the employment of the person carrying on the business, to act for, and under the `control of, other persons in any capacity”

17	Mr Griffith-Jones QC points out that this is a regulated activity and a distinction is drawn between those circumstances where an employment agent acts as a broker, introducing candidates for employment with employers wishing to secure employees, and those circumstances in which an employment business, as defined by the act, supplies workers to another business.  

18	At common law the relationship between employer and employee was one of contract;  the statutory changes have placed numerous restrictions on the freedom of parties to negotiate terms of employment and have granted to the employee and the job applicant rights of a non contractual nature.  The more that Parliament has legislated to protect the position of employees, the more ingenuity has been employed by employers or their advisors to try to defeat the operation of employment legislation by ensuring that work is carried out by those who are not employees.

19	We do not consider that we can overlook the fact that the contractual relationship was between the Applicants and Brentvine and regard it as a legal fiction which can be ignored.

20	Although not mentioned in Mr Griffith-Jones QC’s skeleton argument, the Tribunal referred him to the case of Motorola Ltd v (1) Davidson & (2) Melville Craig Group Ltd a decision of the Employment Appeal Tribunal sitting in Edinburgh in which the presiding Judge was the President of the Employment Appeal Tribunal, Mr Justice Lindsay.  That case is reported in [2001] IRLR 1 at page 4.  It suffices to quote the headnote of that case in which it was held that:

“The employment tribunal had not erred in holding that the appellants had a sufficient degree of control over the first respondent that he could properly be regarded as their employee, in circumstances in which, although the appellants had no direct legal right of control over the respondent under a contract they had made with him, he was bound by the terms of his contract with the employment agency who then assigned his services to the appellants to comply with all reasonable instructions and requests made by the appellants and control of what he did on a day-to-day basis lay with them.
In determining whether there is a sufficient degree of control to establish a relationship of employer and employee, there is no good reason to ignore practical aspects of control that fall short of legal rights.  Nor is it a necessary component of the type of control exercised by an employer over an employee that it should be exercised only directly between them and not by way of a third party acting upon the directions, or at the request of, the employer.  The law has long regarded it as possible in appropriate contexts that an act which A procures B to do should be regarded as done by A.  The existence of a degree of control over a worker consistent with his being an employee of A is not necessarily disproved by showing that B had equal or even greater powers over him.
In the present case, once he was at the appellants’ site, the respondent became largely subject to control much as would have been the case had he been an ordinary full-time employee.  It was the appellants who, in the words of MacKenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 1 All ER 433, determined “The thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done”.  It was the appellants’ manager who suspended him following a disciplinary hearing and decided to terminate his assignment.”

21	That case is an example of a judicial decision which looks at substance rather than form and reality rather than merely academic theory.  However, that decision has to be placed in context.  The Employment Appeal Tribunal were only being asked about the “control component” and they limited their observations to that subject.  We do not consider that Motorola can be construed in any form as authority for the wider proposition that in the circumstances of this case the Tribunal could find there was a contract of employment when in fact its express findings were that there was no contractual relationship between Esso and the Applicants.

22	We accept the Appellants’ argument that they regarded themselves as being an integral part of the Esso team.  We are sure that, if they had been asked at any social occasion about what they did and where they worked, they would have said that they worked for Esso and that would have been, for practical purposes, an accurate answer.  They were controlled by Esso, they always worked there, and, no doubt, regarded themselves as colleagues of the direct employees.  Yet there were differences in that they had the facility for extra days holiday.  They could, if they had wished, have sought to change their status and have the benefit of joining the pension scheme and entitlement to sick benefit and paid holidays.  There was provision for this.  The agency agreement between Esso and Brentvine, at page 88 of the documents, stipulated that should any person supplied via the agent be taken on by Esso there would be certain placing fees which would be payable according to the employment duration prior to completion.  That started at a figure of £250 for an employee who had been there up to six months and at twelve months and over the sum was £1,000.  

23	We do not consider that it is open to us to impose a contractual relationship between the Applicants and Esso.  Running through the decision is an implicit assumption that the passage of time imposes a contractual relationship between the Applicants and Esso although the explicit finding of the Tribunal was that there was no contractual relationship between them.  In many working situations an employee of an outside agency or an outside firm will regard themselves as an integral part of the workforce of the place where they work.  A very obvious example would be the security staff at a Court who, whatever the formal documentation may say, in reality often take on a wide variety of tasks and would regard themselves as colleagues of the Court staff; would attend retirement parties and would be regarded as an integral part of the team, nevertheless one could not ignore the fact that they are employed by an outside security firm and are not employees of the Court service.

24	In this case, although we have considerable sympathy for the Respondents who had worked at the Fawley Refinery for many years, we cannot regard them as employees of Esso.  The Employment Appeal Tribunal is well aware of the inhibitions on its powers.  It is not a fact finding Tribunal and if there were a question of any finding of further facts then we would remit this case rather than allow the appeal and substitute our own finding.  In this case we consider we should allow the appeal in that it finds that the Applicants were the employees of Esso because we cannot see as a proposition of law that that can stand on the very findings of fact made by the Tribunal.  The simple thrust of Mr Griffith-Jones QC’s submission is, we consider, right.  The Tribunal made a finding of fact that there was no contract between Esso and the Applicants.  That was the only finding open to them on the facts and they simply erred in going on then to consider whether or not these Applicants were employees.  As they had not fulfilled the fundamental requirement of Section 230 namely, that there were contractual relationships between Esso and the Applicants, it simply was not possible for them to reach the conclusion that they were employees.  We therefore allow the appeal and reverse the finding of the Employment Tribunal, that the Applicants were the employees of Esso.  The appeal is allowed.