Appeal No. EAT/1435/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 March 2002

Before
HIS HONOUR JUDGE McMULLEN QC
MS S R CORBY
MR A E R MANNERS

MR G ROTHWELL	APPELLANT

THE COMMITTEE FOR THE TIME BEING OF THE GORSE HILL	RESPONDENT
WORKING MENS CLUB

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	

JUDGE McMULLEN QC

1.	This case was due to be heard under the Preliminary Hearing Jurisdiction today but due to an administrative error on the part of the Appeal Tribunal it has not been possible to hear it in the presence of the Applicant.  Nevertheless we have pre read and discussed this case and we see no point in allowing an adjournment for the case to be argued in front of us because we consider that the Applicant does put forward a reasonably arguable case to be sent forward to a full hearing of the Appeal Tribunal.

2.	The Applicant’s wife was engaged by the Respondent, which is a working men’s club, following the death of the previous secretary.  Thus it was that she worked as the steward of the club from his death in 1999 to January 2001 being paid net £450 a week.  She was given use of accommodation of a rudimentary nature.  In January 2000 she and her husband, the Applicant, split up and the Applicant moved into the accommodation pro tem. The relationship came to an end between the Applicant and the Respondent it is said in March 2001.  

3.	The Applicant suffered from heart disease.  As a result of the termination of the relationship between the Applicant and the Respondent the Applicant claimed unlawful deduction of wages, unfair dismissal and disability discrimination.  The claim came before an Employment Tribunal sitting in Bristol under the chairmanship of Mr C. Tickle with Mr Patel and Ms Pendle and a decision was made dismissing the application with Extended Reasons sent to parties on 3 October 2001.  

4.	The Tribunal accurately defined that the issue before it was whether the Applicant was an employee for the purposes of unfair dismissal or a worker for the purposes of disability discrimination and unlawful deductions.  The Tribunal decided that there was no agreement upon which to found an employment relationship; that the Applicant was not an employee; and that in practice the Applicant had never been paid, the work that he did being done as a volunteer.

5.	Nevertheless in paragraphs 9 and 10 of the Tribunal reasons, findings are made which appear to be at variance with that finding.   The Applicant kept the pay and tax records, dealt with brewery representatives, did repairs and decorating on the Committee’s direction and as the Tribunal put it:

“Sometimes worked late, long into the night.  However, much of this was bar work for which he got paid - between £20 and £250 a week depending on the hours worked.”

6.	The Tribunal found that there was never an intention to create an employment relationship and that the Applicant would not be paid until the club moved into profit.  The Applicant was claiming very substantial weekly income requiring in effect the club to take substantial receipts each week and that that was inherently unlikely.

7.	The Applicant’s case was that he was employed as a club manager or caretaker.  It seems to us the Tribunal was correct in holding that he was not so employed but on the face of the decision itself in the passages that we have read there emerges at the very least some remunerated work of a regular nature over a period of time.  In those circumstances we consider it is reasonably arguable that the Applicant was a worker. Since this is bound up with the material in relation to which a decision as to employee status is concerned, it is reasonably arguable that he was employed, albeit not as he claimed as club manager and caretaker.

8.	In those circumstances we consider that the Applicant has made out a reasonably arguable case by references to the passages we have cited that the decision was perverse and that this matter should go before a full Appeal Tribunal.  Because this is an allegation of perversity arguably demonstrated by reference to the passages we have cited we invite the Chairman to produce his notes of the hearing.  

9.	The Applicant also seeks to introduce evidence in paragraphs 6(c) and (d) of his Notice of Appearance relating to statements in proceedings brought by his former wife against the Respondent.  This material has not been produced to us.  We would be reluctant to order this evidence to be produced unless it met the stringent test of Ladd v Marshall.  Because the Applicant is not here to argue this himself, we consider that this matter should be sent to the full hearing to be argued in front of it.  That means that the material and the arguments supporting it should be made available to the Appeal Tribunal when it will decide on the day whether to admit it.  This may be a rather inconvenient way of handling it but it is one which leaves open the opportunity of the Applicant to raise the matter in person which he does not have today.  Justice therefore requires that he should be able to make that argument before the full Appeal Tribunal and therefore we express no view upon it.  Category C.  Half a day.