Appeal No.	EAT/1453/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 March 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR E HAMMOND OBE
MISS D WHITTINGHAM

MR R E BOSTWICK	APPELLANT

HODGE JONES & ALLEN	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	MR JUSTICE HOLLAND:     By an IT1 of 12 May 1998 the Applicant, Mr Ronald Bostwick, makes a complaint against Hodge Jones & Allen of unfair dismissal.  That complaint came before an Employment Tribunal held at London (North) on 4 September 1998.  In the result it decided:

“The unanimous decision of the Tribunal is that the Applicant is not an employee of the Respondent within the definition contained in section 230 (1) of the Employment Rights Act 1996.”

	Against that finding Mr Bostwick appeals.  As we have explained to him, in the course of the hearing, our present concern is as to whether there is an identifiable point of law to found that appeal.  If there is such, then the matter must go forward, to have the Respondents represented.  If there is none such, it is our duty to say so and thereafter this appeal must be dismissed.

	Turning then to the essential issue it is introduced by the Extended Reasons which start:

“1.  Following an exchange of correspondence in February 1995 it was agreed that the Applicant, a barrister at law, would be placed on the Respondent’s list of freelance Police Station representatives.  In this capacity he was to attend clients of the Respondent, a firm of solicitors, who were suspects in Police Stations.  The Applicant confirmed that he was self-employed and that he would pay his own tax and National Insurance.  At all times the Applicant would invoice for 50% of the fee allowed by the Legal Aid Board for the attendance.  When he submitted his annual Tax Return, he claimed for all the expenses of his business, including his car.
2.  On or about Thursday of each week, the Respondent would offer work to the Applicant for the following week.  The Applicant would identify what work he was prepared to do.  In addition, there would be work offered on an emergency basis and when it arose, the Applicant was free to accept or reject.  More often than not the Applicant tended to accept such work so that he might maintain good relations with the Respondent.  Although he also offered similar services to other firms of solicitors, his connection with the Respondent was the most remunerative and represented some 40% of his gross income.”

	The Extended Reasons go on to indicate various other features of the relationship and they serve to point out that, by a letter dated 13 February 1998, the Respondent firm of solicitors advised the Applicant that it would not be instructing him further.  It is in those circumstances that he came to present his case to the Employment Tribunal, his case being that there was a contract between him and the Respondents and that contract was “a contract of service”, so that he was an employee within the definition provided for by the Employment Rights Act 1996.  Not so, said the Respondents, the relationship between them was certainly contractual, but it reflected “a contract for services” and on that basis he would not be an employee and therefore, not able to maintain a complaint for unfair dismissal.

	The issue “contract of service”, or “contract for services”, is one that frequently arises before courts and tribunals in many different contexts, and it classically involves a mixed question of law and fact.  It is worth noting that it is rare that an appeal can be mounted against a finding by an Employment Tribunal as to such an issue, assuming that the Tribunal has sought to consider and balance all the factors.  In a recent decision of this Tribunal:  The Secretary of State for Education & Employment v Bearman [1998] IRLR 431, this Tribunal said at page 434:

“It follows we think that where the question at issue is whether an applicant was an employee or working under a contract for services, there is really an issue as to whether the Industrial Tribunal have identified the correct legal principles.  The principles are clear.  There is a wealth of authority from which may be derived a number of pertinent factors which every tribunal will wish to consider, such as control, method of payment and tax and so on.  The tribunal then has to apply those factors to the facts as they determine them to be.  Their conclusion is one which, even if it technically could be said to be, or involve a question of law, is not only best left to the industrial jury but is one which by its very nature is not likely to be subject to a convincing argument that there has been a misdirection.”

	We cite that passage because it is particularly pertinent to this appeal.  It is manifest that this Tribunal balanced and considered all the facts that were peculiar to the relationship between the Applicant and the Respondents, and in the result they concluded that the relationship was one of services.

	The Applicant has sought to persuade us that in some way that conclusion involved an error of law.  He has wholly failed to do so.  He says, for example, that the Tribunal did not put proper weight upon the correspondence; that is plainly a matter that goes only to part of the issue and is essentially a matter of fact.

	We have pointed out in the course of argument that since he, a barrister, represented to solicitors that he was self-employed, it would perhaps have been surprising if this Tribunal had reached any alternative conclusion in the circumstances.

	For all these reasons, we are entirely satisfied there is no point of law here and in those circumstances this appeal must be dismissed.