Appeal No. UKEAT/0380/12/SM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

	At the Tribunal
	On 26 April 2013

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)

MR P DAKIN	APPELLANT

(1) BRIGHTON MARINA RESIDENTIAL MANAGEMENT 
      COMPANY LTD
(2) BRIGHTON MARINA ESTATE COMPANY PARTNERSHIP LLP	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MRS S HAMBLEN
(Representative)	
For the Respondents	MR L GODFREY
(of Counsel)
Instructed by:
Edward Harte Solicitors LLP
6 Pavilion Parade
Brighton
BN2 1RA	

SUMMARY
JURISDICTIONAL POINTS – Worker, employee or neither
DISABILITY DISCRIMINATION – Disability

An Employment Tribunal dismissed claims for holiday pay and unfair dismissal apparently on the basis that the Claimant was not a worker within the Working Time Regulations nor an employee within s.230 Employment Rights Act 1996.  The principal reason for doing so was a lack of proof of mutuality of obligation; though the Employment Judge also considered whether there was a right to substitution he did not clearly resolve the point, and observed (inconsistently, if he had found an unfettered right of substitution) that the Claimant “might well” have been a worker, without resolving that either.  He was also unclear whether he considered the Claimant was actually integrated into his putative employer’s business.  

He was held to have taken the wrong approach to mutuality by looking for evidence of precision in the hours and days to be worked rather than asking whether the history of the relationship showed it had been agreed there was an obligation to do at least some work and a correlative obligation on the Respondent to pay for it; to have illogically appeared to consider that the rate of pay (£15 ph) assisted in deciding whether the Claimant was an employee or was rather a worker (or neither); and had failed to make necessary findings such as whether the Claimant was a worker, or was entitled (as a matter of inferred agreements) to substitute another’s labour for his in performing the work.

The question of status (employee, worker or neither) was remitted for fresh determination by a different Judge.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

1.	The Claimant asserted before the Southampton Employment Tribunal that he was an employee or alternatively a worker within the meaning of section 230(3) of the Employment Rights Act 1996 of the Respondent companies.  He brought claims that he had been unfairly dismissed, that he had been discriminated against on the grounds of his disability, that he was owed notice pay and arrears of pay and significantly, for present purposes, holiday pay.  Employment Judge Guyer on 28 February 2012 held a Pre-Hearing Review.  It is plain from the Reasons for his decisions to dismiss all of the claims delivered on 8 May 2012 that the bulk of the hearing was concerned with the question whether the Claimant was disabled.

2.	The Claimant brought appeals to this Tribunal in respect of all the findings which the Judge had made.  At an earlier preliminary hearing I ruled that the appeal insofar as it related to the dismissal of the claim that the Claimant had been discriminated against on the grounds of disability had no reasonable prospect of success.  It remains, however, important in what will follow to bear in mind why it was that the Employment Judge dismissed that claim.

3.	The Claimant asserted that he was seriously disabled as a result of an earlier injury which had caused there to be surgery to his neck.  He could not turn his neck more than a few degrees without putting his spinal cord in danger, could not lift heavy weights and if he were to over exert himself this might well cause his death.  The Judge simply did not believe the Claimant when he said that.  That was a view as to the Claimant’s credibility which was well reasoned.  The Judge was entitled to come to that conclusion.  It meant when he approached the question of employment or worker status that he had already formed the view that the Claimant was not a reliable witness.  

4.	The appeal before me focuses upon that second and lesser part of the Judge’s decision.  I suspect that his conclusions may have suffered because less time had been devoted during the hearing to setting out the evidence and to arguing the consequences of that evidence, but the issue for me is whether, as asserted by Mrs Hamblen, who has spoken to the skeleton argument of Mr Greenstein who was the advocate below and who would have been here to pursue the appeal himself had not been for his own serious illness, the Judge did not adopt the proper test, the Judge’s reasoning was inconsistent and the Judge’s analysis of the facts was wrong.  If any of those is borne out then there has been an error of law and this appeal would be allowed.

The underlying facts
5.	The Claimant began to work for the Respondent in about 2005.  He agreed that he had been employed on what was described as a self-employed basis.  He was therefore paid gross without deduction of tax.  The work he did consisted of walking around an estate of many dwellings, essentially in the common parts, I am told to make sure that they were maintained to a high standard of repair.  If there were any problems he would complete orders to contractors to carry out the repairs.  For that purpose he used the estate office to compile and send to the Respondents sheets detailing the work which needed to be done.  There is no doubt, from what I have been told, that that was important work for the Respondents who managed property both in Brighton Marina and around it.

6.	The Judge was invited, despite the agreement that there had been between the parties that the Claimant was to work on a self-employed basis, to conclude that he was in fact an employee or if not at least a worker.  He could only claim to be unfairly dismissed if he were an employee.  He could however claim holiday pay if he were a worker.  The definition of “employee” and the Employment Rights Act definition of “worker” is set out in section 230 of that Act.  That provides so far as material as follows:

“(1)	 In this Act employee means an individual who has entered into or works under … a contract of employment.
(2) In this Act contact of employment means a contract of service or apprenticeship whether express or implied and if it is express whether oral or in writing.
(3) In this Act worker … means an individual who has entered into or works under … 
(a) a contract of employment or; 
(b) any other contract whether express or implied and, if it expressed whether oral in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual 
and any reference to a workers contract shall be construed accordingly.
(4) In this Act, employer in relation to an employee or a worker means the person by whom the employee or worker is … employed.  Employment is given a commensurate meaning in subsection (5).” 

7.	The right to claim holiday pay arises not under the Employment Rights Act 1996 but under the Working Time Regulations 1998, regulation 21 of which provides for a definition of worker in terms which are so closely identical to those in section 230 for present purposes that I may simply rely upon what is said in section 230(3).

8.	The necessary constituents of a contract of employment in the section 230(1) sense are well established by case law and are not in doubt.  First there must be a contract between the employee and the employer.  Secondly, that contract must contain mutual obligations which are related to work; I shall return to this later in the judgment.  Thirdly, the employee must be subject to the control of the employer at least insofar as there is room for such control.  It may need to be emphasised that it is the power to control which is essential; the demonstrated exercise of control is not, though it may be evidence that there is the power of control and without it there may be some suggestion that there is no such power.

9.	Fourthly, the employee must be obliged to perform his work personally for the employer.  As it was put in Autoclenz v Belcher [2011] UKSC 41 in the speech of Lord Clarke at paragraph 19, if there is a genuine right of substitution:

“this negates an obligation to perform work personally and is inconsistent with employee status Express & Echo Publications Ltd v Tanton [1999] ICR 693 at 699 to 700 per Peter Gibson LJ.
3. If a contractual right as for example a right to substitute exists it does not matter that it is not used.  It does not follow from the fact that a term is not enforced that such a term is not part of the agreement; see e.g. Tanton [1999] ICR 693 at 697.” 

10.	Finally and fifthly, the contract must not contain terms which are inconsistent with it being a contract of employment.  

11.	These principles emerge from the case law over many years, from Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 per MacKenna J at 515 through Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 at 623 per Stephenson LJ and Tanton to Autoclenz v Belcher, and more recently in connection with worker status the case of Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005, [2013] ICR 415 CA.

12.	For there to be worker status within section 233 there has to be a contract, the contract plainly has to relate to work and the contract has to provide for the services of the worker to be performed personally so that the same principles as to substitution apply as they do in respect of employment.  I would also accept that the circumstances have to be such that they are not inconsistent with a contract being of worker status.  But what is not necessary for such a contract is to show that there is control by the putative employer of the putative employee.  That is a feature of an employment relationship alone. 

13.	It is plain from section 230(3) that there are contracts under which work or services are performed by one party to the contract for the benefit of the other which do not create the relationship either of employee or of worker.  It is clear that a contract in which there is a right to substitute in the Tanton sense would be neither, though it may be a contact under which work is done.  Similarly if the work and services are to be performed personally but the putative employer is a client or customer of any profession or business undertaking carried on by the individual said to be a “worker” that situation too would fall outside the scope of worker status.

14.	In simple terms therefore section 230 and the provisions which are closely related to it such as that in the Working Time Regulations 1998 permit of three possibilities.  A person doing work may be an employee.  There would need to be control.  He may be a worker.  There would not need to be control but there would still need to be personal service.  Thirdly, he may be a worker outside the scope of section 230(3)(b), where there may be no personal service or there may be a feature of the contract with the putative employer or employee which means that the person doing work is outside that definition.

15.	Mutuality of obligation has been considered in a number of cases since it had its origin perhaps in words which Stephenson LJ spoke in Nethermere (St Neots) Ltd v Gardiner.  In O’Kelly v Trust House Forte Plc [1983] IRLR 413 CA and later in Carmichael v National Power Plc [2000] IRLR 43 HL the issue to which the question of mutuality of obligation was directed was whether there was an overarching obligation amounting to a contract of employment governing the parties in a situation in which work was done from time to time by one for the other.  Plainly on each occasion that work or services were performed there would be an obligation in the circumstances of those cases for the putative employer to pay and there would thus be the mutual obligation of work and pay: but in those two cases there was no overall requirement which obliged one party to provide an occasion for such work to be done, or for the other party to do it.  Thus, it was recognised in Stephenson v Delphi Diesel Systems Ltd [2003] ICR 471 by an Appeal Tribunal presided over by Elias J that it was in the context of the overarching or umbrella contract in particular that courts had emphasised the need to demonstrate some mutuality of obligations.  He said at paragraph 12:

“12. All that is being done is to say that there must be something from which a contract can properly be inferred.  Without some mutuality amounting to what is sometimes the irreducible minimum of obligation no contract exists.
13.	The question of mutuality of obligation however poses no difficulties during the period when the individual is actually working.  For the period of such employment a contract must, in our view, clearly exist.  For that duration the individual clearly undertakes to work and the employer in turn undertakes to pay for the work done.  This is so even if the contract is terminable on either side at will unless and until the power to terminate is exercised these mutual obligations, to work on the one hand and to be paid on the other, will continue to exist and will provide the fundamental mutual obligations. As was said by this Tribunal, presided over by Langstaff J in Cotswold Developments Construction Ltd v Williams [2006] IRLR 181 at paragraph 47 mutual obligations are necessary for there to be a contract at all.  If there is a contract it is necessary then to determine what type of contract it is.”

16.	The essential obligations which have to be set out and agreed are thus obligations under contract.  For the contract to be one of employment they have to be obligations which relate sufficiently to employment.  Thus in Cotswold v Williams this Tribunal held that the obligations had been recognised in the case law as contemplating an employer’s obligation to provide some work or some pay; see paragraph 19.  But at paragraph 20 this followed:

“It is unnecessary … to approach the definition of the obligation which is required on the employers’ side upon too narrow a basis.”  

17.	As Sir Christopher Slade observed in Clarke v Oxfordshire Health Authority [1998] IRLR 125 at paragraph 41: 

“The mutual obligations required to found a global contract of employment need not necessarily and in every case consist of obligations to provide or perform the work.  To take one obvious example, an obligation by the one party to accept and to do work if offered and an obligation on the other party to pay a retainer during such periods as work was not offered would in my opinion be likely to suffice.  In my judgement however the authorities require us to hold that some mutuality of obligation is required to found a global contract of employment.”

18.	In Nethermere (St Neots) Ltd v Gardiner the Court of Appeal was considering a case of a company which manufactured boys’ trousers and to do so employed a number of home workers.  The applicants to the Tribunal in that case were part-time home workers who sewed trouser flaps and pockets using machines which had been provided by the company.  There were no fixed hours for working.  They were paid according to the amount they did.  They were not obliged to accept any particular quantity of work.  When the arrangement came to an end the question arose whether they were employees or whether they were self-employed.  Under the law as it then stood no question of worker status arose.  The Tribunal concluded that they were employees.  The employer appealed.  The Appeal Tribunal having dismissed that appeal by a majority, the employer further appealed to the Court of Appeal.  The Court of Appeal itself by a majority determined that there was sufficient evidence from which it could be said that there was a contract of employment.  As Stephenson LJ said at page 623 F to G:

“There must in my judgment be an irreducible minimum of obligation on each side to create a contract of service.”

He held that there must at least be an obligation to provide some work and a correlative obligation to do it.  It was not required that there should be any specific hours of work, nor any specific amount of work, although there had to be an obligation to do at least some.  

19.	Thus, the essential requirement of mutuality of obligation is directed, a) to whether there is a contract or not and; b) if there is a contract, whether it has a sufficient relationship to work to be a contract of employment or for that matter, in this context, of worker status.  The obligation does not have to be so precise as to provide for specific hours of work or to impose upon the worker an obligation to perform specific hours.

The Tribunal decision
20.	The Judge recogised that he had quite limited evidence “in chief”.  He noted what the Claimant said he did, that he invoiced the Respondent for the work he did, that on occasions he was instructed by one or more of the Respondents to do specific work but otherwise planned it himself.  At paragraph 34 he observed:

“In as much as he sat in the office and operated a computer he could be said to be integrated into the respondent’s operations.”

21.	He appeared to accept what Mr Knight had said, at paragraph 36, that it had been agreed between the parties that the Claimant would be self-employed, would be paid £15 per hour gross and would be responsible for his own tax and was to submit invoices on a regular basis.  There was an agreement as to which Respondent would be responsible for payment in respect of what work.  At paragraph 37 the Judge concluded:

“There appear to be no other expressed terms save that the time per week to be spent was approximately 18 hours.”

22.	There was no documentary evidence.  The contract was never put in writing.  Section 230 does not require that a contract of employment is in writing for it to be a valid contract.  Where it is not in writing however the terms of a contract have to be found by any Employment Judge from two principal sources.  The first is what the parties have done in performance of the contract.  That is always a useful starting point since it is readily to be assumed that what the parties do under a contract where there is nothing in writing has been that which they have orally agreed each should do.  If it were otherwise one would expect one party to have complained contemporaneously to the other that the performance offered or given was not in accordance with what had been agreed.

23.	The second source of evidence is what is said to the Judge as to what was actually orally agreed.  There may be considerable scope in both the oral evidence, and such terms as are inferred to have been agreed by reference to what is done under the contract, for further terms to be implied by necessary implication.  The Judge’s formulation at paragraph 37 was a finding of fact presumably derived from those sources.  He expressed it as time “to be spent”; that is the language of obligation, though it may also be language setting out the expectation of the parties.  What appears to have happened, given what the Judge went on to find, was that for some six years the Claimant worked approximately 18 hours per week though those hours differed a little from week to week and month to month.  There was some vagueness perhaps about the precise hours.

24.	At paragraph 38 the Judge set out the points which had been made by the Claimant as to features of the way in which he had performed work under the arrangement.  As part of paragraph 38 he noted the Claimant asserted that he had regular hours (a), that he had to work a fixed number of hours at set times and was supplied with all the equipment necessary to do the job (e).  As to (g) he asserted that on one occasion when he did seek a substitute this was not allowed.  At paragraph 39 the Judge commented in respect of all those points:

“The last point was disputed by Mr Knight [he gave evidence for the Respondent] and having regard to my general view of the claimant’s credibility I am not prepared to accept the claimant’s evidence on this respect.”

25.	It might be thought that in saying that and singling out 38(g) specifically for non-acceptance the Judge was accepting the first six points.  However, if that is what he did it appears inconsistent with the finding as to the term of the contract at paragraph 37, “approximately 18 hours”, and a later finding at paragraph 43 to which I shall come.

26.	In summing up his approach and conclusions the Judge at paragraph 40 accepted that he had to assess the objective reality of the relationship in order to determine the agreement which had been made, per Autoclenz v Belcher.  At paragraph 41 he commented that there was an expressed oral term that the Claimant would be self-employed and then added this:

“41. The respondents could well have employed someone to carry out the task the claimant carried out on terms that such a person would be employed.
42. I do not believe the arrangement the claimant made with the respondent whereby both parties agreed to subscribe to the status of self-employed was fictitious.  The respondents say they would not have paid the rate of £15 per hour.  Sitting as an industrial jury I do not find that contention unreasonable and that the rate of £15 per hour in September 2005 for a person with no specialist property qualifications to look at properties to see whether or not, for example, light bulbs needed replacing or there were obvious defects, was a figure that would have been paid to a regular employee.
43.	Of all the tests for employment an irreducible minimum is the mutuality of obligation and I do not find that there was such a mutuality of obligation to provide specific hours and to perform specific hours.
44.	Put quite simply, whether or not it was the respondent who dictated the terms of saying the relationship was to be self-employed, which quite clearly it was quite capable of being, the claimant has not established any facts whereby I should determine that in fact in reality the status was one of employment.
45.	He might well qualify as a worker within the definition of section 230(3) of the Employment Rights Act 1996.
46.	Accordingly, having regard to my determinations the claims must be dismissed.”

27.	Mrs Hamblen argues that the conclusion is reached therefore for a number of reasons, all of which contribute to it.  The test set out at paragraph 43 she submits is misplaced.  The Judge could not find there was no mutuality of obligation in a circumstance in which there was accepted to be, she submitted, an ongoing contractual relationship between the parties under which some work was performed.  But in any event, “mutuality of obligation” here is described specifically in terms of the precise content of the obligation.  The Judge saw it as necessary to provide specific hours and to perform specific hours.  That is an error of law for the reasons which I have already set out earlier in this judgment.  

28.	As she observed, rightly, on that approach any contact providing for piece work to be performed could not be a contract of employment.  Yet it is well recognised that although perhaps little piece work is performed these days compared to the amount which was done some time ago, workers paid by the piece or by the hour or both are equally capable of being under contracts of employment.

29.	Secondly, she argues that the fact that the Judge concludes at 45 that the Claimant might well qualify as a worker demonstrates that he did not conclude that there was an unfettered right to substitute.  If he had found that there was a power of substitution he would have been bound to conclude that the Claimant was neither an employee nor a worker.  In any event, she submitted, the Judge had not at paragraph 39 concluded that there was a power of substitution.  He had merely declined to accept the Claimant’s evidence as to one particular occasion when he had sought a substitute and it was not allowed; the salient features of it are not spelt out.  She argued that the Judge had found at paragraph 34 that the Claimant was integrated into the Respondents’ operations and that it was not necessary to demonstrate that the employer controlled how the work was done precisely if he had power to do so.  She might have pointed out in support of this submission that the Judge had found that the Claimant was instructed to carry out specific duties, and the inference is that he did those, but it is, she submitted, the power to control which is critical.

30.	For his part, Mr Godfrey, in an impressive argument, wished me to read the Judgment in the context in which it had been made.  The Judge had not formed a favourable view of the Claimant’s credibility.  He submitted that as to paragraph 43 although on the face of it, it appeared to be a finding that there was no contract and that the nature of the relationship was that of a casual engagement this would be surprising since it was common ground that there was a contract binding on the parties; that is what was said at paragraph 75 of his skeleton argument.  In submissions to me, however, he thought he had been over hasty in describing that as common ground.  It may be well, he submitted, that the Judge here was looking at work in the building trade or allied to it.  Such work can often be casual.  If performed on a “casual but as required basis” with no specific hours and no specific duties then there may well be no obligation to provide work or to do it.

31.	Underpinning much of Mr Godfrey’s submissions to me were his appeals to facts which had been canvassed before the Tribunal.  Mrs Hamblen, though she lacked the personal knowledge of what had happened before the Tribunal, for her part also sought to address me on matters which she asserted were or had been in evidence.  I approach those submissions with very great reserve.  The notes of evidence are not before me.  What the Judge said by reference to evidence in chief being quite limited may well leave open there having been significant evidence given in cross-examination.  I do not think I can decide whether there was an error of law or not by reference to findings of fact which the Judge might have made and I am invited to infer did make which he has not in fact made and set out in his Judgment.

32.	I approach the Judgment as being self contained viewing it as best I can as a whole.  Nonetheless, Mr Godfrey submits that the use of the words “mutuality of obligation” in paragraph 43 derived from the submissions of the parties where that expression was used and, taken in the context of the decision as a whole, meant in summary that the Judge was concluding there was no obligation to perform work personally nor, he submitted, was there a right in the employer to exercise control.  He did not dispute the proposition put forward in the skeleton argument of Mr Greenstein that control meant “not whether in practice the work was in fact done subject to a direction and control exercise by an actual supervision or whether an actual supervision was possible, but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.” per Dixon J in Humberstone v Northern Timber Mills 79 CLR 389 cited by MacKenna J in Ready Mixed Concrete.

33.	As has been recognised in Zuijs v Wirth [1955] 93 CLR 561 there must always be some room for the exercise of the power of control but what matters is the authority and not the demonstrated exercise of it.  He submits that the Judge did not make any finding as to control.  The flavour of the Judgment, he submits, is to show that he did not accept that there had been any sufficient control even within the terms I have set out.  In paragraph 34 he did not, submitted Mr Godfrey, find that there been integration because the sentence must be read in the light of the first four words, “In as much as”.  This was a nod to a point which might have suggested integration but it never went that far.  He had found, if one put paragraph 38(g) and 39 together, in the light of the views which the Judge had expressed about the Claimant’s credibility, that there was a power to substitute.  That too, therefore, was recognised in summing up the issues in paragraph 43.

34.	The Judge had not dealt with the question of holiday pay separately as he might have done because of the focus of the parties was elsewhere but in any event, the Judge’s finding at 45 would not be a basis for holding that he was entitled to holiday pay since the Judge had effectively found that there was no obligation to provide work personally.

Discussion
35.	The Judgment must be read as a whole.  The Judge appears as part of his decision making process to set out at paragraph 43 a test which looks for mutuality of obligation and does so by looking for specific hours both for work to be provided and for it to be performed; that is the wrong approach.  That that was the approach he was adopting was demonstrated by the opening words of the next paragraph, “Put quite simply”.  He said in that paragraph that the question was really one of a lack of proof.  He had, however, set out considerable material, and had heard evidence, albeit relating largely to disability, over some 4 ½ hours from which it was clear that work had been done over an extended period, regularly, to the extent the Judge felt able to conclude that the time to be spent was approximately 18 hours per week, of all which was remunerated at £15 per hour.  The absence of evidence is not so clear that the Judge was entitled simply to resolve this case on the burden of proof.  

36.	In addition to the error of approach which I have identified I cannot accept that on a proper reading of the decision the Judge actually made any clear finding about whether there was or was not a power to substitute of the unfettered sort that would, in line with Express & Echo v Tanton prevent any contract being one within section 230, whether subsection (1) or subsection (3).  A “fact” I am told was that only the Claimant had done this work during the six year period, and I am told that there had been no actual substitution during that time, but I do approach what I have been told with the caution I have already indicated to be proper.  The Judge did not, in my view, clearly say what he found about integration.  It looks as though he was making a finding that there was some integration but no conclusion is drawn from it.  As to Mrs Hamblen’s argument that the Judge analysed the facts wrongly there seems to be some force here too.  In paragraph 42 it is difficult to understand from the words used precisely what the point is to which the Judge’s observations were directed.  The fact that the Respondent said it would not have paid the rate of £15 per hour does not seem, on the face of it, capable of distinguishing between an employee or a worker, particularly in a context in which it had actually paid £15 per hour for the work which was actually done.  It may indicate, as Mr Godfrey submitted, that the Respondent gave evidence to the effect that for the nature of the work being done a person, if a direct employee, might be employed on the minimum wage, and therefore this would underpin its belief that the Claimant was self-employed but I see no reason why the Respondent’s belief as to self-employed status or the evidence of the Claimant that that is what he had agreed to would be conclusive.  It seems to me that is a matter which the Judge is entitled to take into account although the Judge here rightly said that he had to assess the overall factual situation objectively.

37.	I conclude that in paragraph 45 the Judge was required to decide whether the Claimant was or was not a worker; if he was not an employee that was an essential stepping stone if he was to obtain the rights under the Working Time Regulations to which he claimed to be entitled.  The Judge’s finding he “might well” be a worker was one which sat on the fence instead of coming off it on one side or the other for a good reason.  

38.	Accordingly, in my view the grounds of appeal are well made out.  There was an error of approach.  The reasoning appears inconsistent.  If there is an explanation such as Mr Godfrey attempted, which lies in the way in which the hearing was conducted and further evidence, it is not set out by the Judge and he appears to me to have adopted the wrong factual analysis.  It may be that he relied heavily, and arguably too much, upon the label which the parties attached to their relationship when it was the reality of the relationship which he had to assess using the evidential sources which were available to him.  

39.	Accordingly the appeal is allowed.

Consequential directions
40.	Mrs Hamblen’s starting point is that I should decide for myself whether the Claimant was or was not an employee.  I decline to do so.  This is a question of approach but also of fact and degree.  The facts are not clearly and comprehensively set out in the Judgment.  Some were in dispute below.  I am in no position to make the necessary findings of fact from which a proper conclusion would flow.  

41.	An Employment Judge dealing with this case will have to ask first whether there was a contract governing the relations between the parties, second whether there was a power in the employer to control the Claimant in the performance of that contract even if it was only sporadically exercised.  He will have to look to see whether there was within the contract an agreement that the Claimant could substitute another.  The distinction here is effectively between a contract which requires work to be done, on the one hand, and a contract which requires work to be done by a specific person (the other party to the contract) on the other.  A limited power of substitution, as for instance might exist where there is cover for short periods, may not inevitably defeat a claim to either employee or worker status but this will have to be assessed again as a matter of fact and degree.  The Judge will have to consider the label which the parties put on the relationship, which is a relevant matter, as well as whatever findings he/she makes as to the agreement which was reached as to which, as I have indicated, the Judge may take account, as a starting point for finding any agreement to be inferred, of that which the parties actually did in the performance of their relative obligations under it.

42.	Only when those matters have been established plus such other matters of fact as the parties may seek to rely upon will a Tribunal be in a position conclusively to determine whether there is here truly a contract under which the Claimant has, a) employee status under section 230(1); b) worker status under the Working Time Regulations 1998 regulation 2(1) equivalent section 230(3) or; c) neither.

43.	The Claimant will start off with the disadvantage that his assertions made earlier in this case that he was disabled, and as to that extent of that disability, have been found not to be the case and the parties will be entitled to place such weight upon that in their submissions as they consider appropriate.

44.	Mr Godfrey for his part asks me to remit the case to a Tribunal; I do.  He invites me to remit it the same Tribunal; I do not accept that invitation.  The principles which govern my decision are out in Sinclair Roche & Temperley v Heard [2004] IRLR 763, in particular at paragraph 46.  It seems to me here that the case is a short one.  It should be capable of resolution well within the day.  There is no advantage in terms of cost or time for the matter to be remitted to the same Judge.  Second, there is some danger with the passage of time and the inevitable inadequacies of recollection to which that can give rise that if the same Judge re-hears the case he may have regard to matters which he may attribute to the recent evidence but which may simply be a reflection of inadequate recollection.

45.	I am concerned about the flaws in this particular decision which, as I have set out, has been inadequately reasoned, expressed and which adopted the wrong approach and finally, there is I think here some sense of the matter set out 46.5 in the Sinclair Roche even set against that which is set out at paragraph 46.6.

46.	Accordingly, the case will be remitted.  It will be remitted for determination only in respect of status: “worker”, “employee” or neither.  It will be open to the parties to call whatever evidence they think appropriate as to that; in doing so they may perhaps fill some of the evidential gaps in the first hearing.  They are not constrained by any argument previously made, but as I have indicated are entitled to take account of the fact that Judge Guyer found that the Claimant had said that he was disabled when he was not.  That part of Judge Guyer’s decision stands.

47.	As matters now stand the amount at stake in this case may not be sufficient to justify the expense, time and trouble of a further hearing rather than a concerted attempt by the parties to resolve it if they can.  It is for the parties and not for me to decide on that, but I encourage them to explore any sensible prospect of settlement.