Appeal No.	 EAT/176/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 February 1998

Before
HIS HONOUR JUDGE PETER CLARK
MRS R CHAPMAN
MR W MORRIS

MRS M MIDDLETON	APPELLANT

THE PHOTOGRAPHER LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS P HUGHES
(Solicitor)
Harehills and Chapeltown
Law Centre
263 Roundhay Road
Leeds LS8 4HS	

	JUDGE PETER CLARK:     In September 1993 the Appellant commemced work on a commission only basis for the Respondent selling its school photography services to schools in the North East of England.  She visited schools, using the Respondent’s sales portfolio, obtained orders and was paid commission on those orders.  She worked from home.  At the same time she worked part-time for a catering company.  Her hours of work were flexibile.  She paid tax and National Insurance on a self-employed basis.

	It was common ground between the parties that as from 11 September 1995 until her dismissal on 28 August 1997 she was employed by the Respondent.  That period is less than two years.  The question which came before a Chairman, Mr C.F. Sara, sitting alone at Bristol Industrial Tribunal on 5 November 1997, was whether the Appellant could count as continuous employment her service from and since September 1993.

	He held, for the extended reasons dated 26 November 1997, that she could not.  Accordingly, her complaint of unfair dismissal was dismissed for want of jurisdiction.  Against that decision the Appellant now appeals.  This is a preliminary hearing held to determine whether the appeal raises any arguable point or points of law to go to a full hearing.  

	Both before us and before the Industrial Tribunal Ms Hughes, who represents the Appellant, has placed much faith in the Court of Appeal decision in Lane v Shire Roofing Company (Oxford) Ltd [1995] IRLR 493, a case concerning the employment status of a builder for the purposes of the Construction Working Places Regulations 1966.  We are not entirely convinced that that case necessarily represents a sea-change in the ever-growing body of learning on the vexed question of contracts of service or for services.  It is one in a long line of cases on the subject.

	We have ourselves gone back to the seminal judgment of Cooke J in Market Investigations Ltd v Minister of Social Security [1968] 3 AELR 732, a case cited in the Lane case and itself expressly approved by the Privy Counsel in Lee Tin Sang v Chung Chi-Keung [1990] ICR 409, 412 C - F, per Lord Griffiths.  Cooke J, dealing with the case of a market researcher, posed the question “was she performing those services as a person in business on her own account?”.  He found that she was not on the facts of that case and hence was an employee.

	In the instant case the Chairman found that Mrs Middleton was a standard commission agent.  He went on to say that if the sole test is whether she was in business on her own account there must be some question about this, and then set out various indicia inconsistent with her being in business on her own account.  Further, he expressed concern that if he found that the Appellant was an employee then all commission agents in sales forces must be employed people and that would be a far-reaching decision.  

	Ms Hughes submits that the Chairman has demonstrated a wrong approach in law.  If, on the facts of this particular case, the Appellant was not in business on her own account, the Chairman should have said so and found that she was an employee; he ought not to have been deflected by a mistaken concern that such a decision would determine the outcome of every commission based sales persons case.  

	Whilst we recognise the limited circumstances in which this appeal tribunal can interfere with a finding of the Industrial Tribunal as to employment status, most recently reaffirmed by the Court of Appeal in Clark v Oxfordshire Health Authority (18 December 1997 Unreported) we think that the point is arguable and that the case should proceed to a full appeal hearing.

	For that purpose we give the following directions.  The time estimate is half a day; Category C, exchange of skeleton arguments between the parties, not less than 14 days before the date fixed for the full appeal hearing.  Copies of those skeleton arguments to be lodged at the same time with this Appeal Tribunal.