Appeal No.	 EAT/109/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 February 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MISS C HOLROYD
MR P R A JACQUES CBE

MR P WILLIAMS	APPELLANT

COLLYWESTON CONSTRUCTION LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR C SEKAR
(of Counsel)
Messrs Leigh Day & Co
Solicitors
Priory House
25 St John's House
London
EC1M 4LB	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mr Williams wishes to make against the unanimous decision of an Industrial Tribunal held at Leicester on 7th October 1997. By that decision the Industrial Tribunal unanimously dismissed Mr Williams’ application for a redundancy payment and payment in lieu of notice. The grounds on which they dismissed his application was on the basis that he was not an employee but rather an independent contractor.

	The decision of the tribunal is set out in rather shorter order than might have been proper, bearing in mind that the decision followed a hearing which had lasted over a two day period, during at least a day and a half of which there had been evidence. But despite its brevity, it is quite apparent how the Industrial Tribunal have approached this question. They have directed themselves, by reference to authorities, that they must take into account all the relevant factors emerging from the evidence, and they further direct themselves that it is for the applicant, Mr Williams, to satisfy the tribunal on a balance of probabilities, that he was an employee. They say they have considered the facts from the point of view of both parties, that is to say in favour of the proposition that he was a self-employed contractor on the one hand, and in favour of the proposition that he was an employee on the other. 

	In paragraph 3 they set out those findings of fact in favour of the proposition for self-employment. In paragraph 4 they set out those findings in favour of employment. They refer to a decision which was drawn to their attention during the course of the hearing, Young & Woods v Woods [1980] IRLR 201, and directed themselves further that the label which the parties choose to use to describe their relationship cannot alter or decide their true relationship. In deciding what that true relationship is, the expression by them of their true intention is relevant, but not conclusive. They further directed themselves that the Courts are reluctant to deny employment rights to people, which depend upon the applicant being able to satisfy the tribunal that he is a genuine employee, within the meaning of the Act. In relation to all those directions, there is no criticism made of the Industrial Tribunal.

	They go on in paragraph 6 to say that they have balanced the various pieces of evidence as carefully as they can, and have come to the conclusion that the applicant has failed to discharge the burden of proof which is on him. Accordingly, as they were not, on a balance of probabilities, satisfied that he was an employee, his complaints had to be dismissed.

	In the appeal in this case, as Mr Sekar of Counsel has pointed out, there are a number of grounds put forward in the form of skeleton argument. It seems to us that the first ground of appeal which is raised, is that because the interpretation of the facts is a question of law, if there was a challenge to the tribunal’s interpretation of those facts, therefore, this was a point of law with which we should be concerned. But it seems to us that that proposition in its starkest form, is indeed not the true state of the law as we understand it to be, having regard to various decision of the Court of Appeal and of the Privy Council. It seems to us, effectively, that it is an arid dispute to ask the question whether the interpretation of the facts in relation to whether a contract of employment is a contract of employment or a contract for self-employment is a question of law, because the tribunal’s findings of fact and their approach to the assessment of the evidence, and their judgment as to the application of the factors, is, in reality, one which is not susceptible of sensible challenge in an appellate court. This point is made plain in the judgment in Nethermere in the judgments of Stephenson and Dillon LJJ. What the tribunal have done is not only to determine what the facts are in the sense of determining what the terms of the contract were, but also as a question of fact within the umbrella of the decision that they had to arrive at, concluded, as a matter of fact, that on balance this was not an employment relationship. It will be appreciated by everybody, that Industrial Tribunals are often faced with very difficult questions as to whether a person is an employee or is self-employed. This case is a good example of the fact that the decision might have gone either way.

	Accordingly, the first ground, namely that the tribunal have erred in law, is one that we reject.

	Secondly, it is said that the tribunal have essentially failed to find sufficient of the facts. Again, that submission should be rejected. It seems to us that it is for the Industrial Tribunal to determine what are the more important facts. They are not obliged to find every fact, as Counsel has submitted that they should. They are not required to do that. They are required to set out those things which seem to them, on the basis of the arguments and evidence that they have heard, to be the more important facts. 

	The third ground which we think in the end is really the only ground of appeal, is that the decision of the Industrial Tribunal was perverse. It is said that the only conclusion that a tribunal could come to, having regard to what is said in paragraphs 3 and 4, was that this was an employee relationship. We can see much force in the submission that there was no genuine self-employed relationship and that in fact the parties were working on the basis he was effectively in all but name, an employee. On the other hand, the Industrial Tribunal have not been prepared to arrive at the conclusion. It seems to us having regard to the points found in paragraph 3, that they were entitled to go on and conclude that he was not, on the balance of probabilities, an employee. We do not consider that it can be properly said that on the face of the decision, that this decision was perverse.

	In relation to the suggestion that the Industrial Tribunal have in paragraph 6 not set out proper reasons for their decision so that Mr Williams cannot know on what basis he has lost his case, that seems to us not to be a tenable argument. The tribunal’s decision could have been expressed somewhat differently, and if it had been, but using exactly the same language as is contained within the present decision, then it could not have been criticised. The fact that they have chosen to set it out in the way that they did seems to us not to render it inappropriate in law. 

	Accordingly, having given the matter some anxious consideration, because this may be a case where we ourselves would have arrived at a different conclusion on the material before us, we have nonetheless come to the conclusion that this appeal is a pure question of fact and that the tribunal’s decision was not perverse, and, therefore, it should be dismissed.