Appeal No. EAT/0051/03/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 July 2003

Before
HIS HONOUR JUDGE D M LEVY QC
(SITTING ALONE)

MS S J PRESCOTT	APPELLANT

THE SECRETARY OF STATE FOR TRADE & INDUSTRY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS SUE PRESCOTT
In Person	
For the Respondent	MRS W OUTHWAITE
(Of Counsel)
The Treasury Solicitor (Employment Team)
Queen Anne’s Chambers
28 Broadway
London
SW1H 9JS	

JUDGE LEVY QC

1.	On 9 May 2002 Miss Susie Prescott (“the Appellant”) presented an Originating Application to an Employment Tribunal seeking redundancy pay.  She claimed that she had been employed by a company which was then in insolvent administration from 10 March 1999 to 27 September 2001.  Among the documents she produced was a contract, at page 37 of the bundle prepared for this hearing, on which she relied.

2.	There was a hearing before an Employment Tribunal Chairman sitting alone in Southampton, Mr Guyer, on 4 October 2002 to determine whether she was entitled to redundancy and payment in arrears of pay as she claimed.  Having examined the position, he identified that the sole point in issue was whether or not the Appellant was an employee of Advanced Training Ltd, the company, which went into liquidation in his judgment.  Extended reasons was promulgated on 31 October 2002.  He dismissed the claim.  The Extended Reasons explains why he considered the Appellant not to be an employee of the company.  From that decision, she appealed.  Her appeal raised a point as to whether there had been some procedural impropriety below.  

3.	The matter came before Judge McMullen on the new sift system on 13 January 2003.  He directed that prior to the appeal bring being heard the Appellant should set out the facts which she relied on which the Chairman’s comments would be sought.  This appeal comes before me with that information today.  The Appellant appeared in person below and in the course of his Extended Reasons the Chairman praised her performance.  She has come to this appeal conspicuously well prepared and I pay tribute to the work that she has done on this case on her own behalf.  Today Miss Outhwaite appears for the Respondent.  Below, the Respondent was representated by a Redundancy Payments Officer.

4.	The Appellant raised several issues.  She stated she worked for some organisation on a self employed basis and for others, like the Respondent, she was employed.  The Chairman examined the contractual documents she presented as part of the exercise it carried out.  He was not persuaded so far as the Respondent was concerned that she was an employee.  In paragraph 6, he said:

“The Applicant says she was an employee.  Her relationship with the Company started in about March 1999 when the Applicant was carrying on business as a self-employed trainer and adviser.  Within a few months the Applicant claims that the relationship changed to one of employment.”

He recognised the claim put forward.  He went on to say that it was common ground that it had to be that her claim depended on whether or not she was an employee within the meaning of section 230 of the Employment Rights Act 1996 (“ERA”) where “employee” means an individual who has entered into or worked under a contract of employment.  Under Section 230(2) of that Act a “contract of employment” means a contract of service or services.  He noted her educational degrees and that she was involved in verifying every vocational assessor portfolio and every assessor of the Advanced Training Ltd which was referred to as the Respondent Company.

5.	He pointed out that the fact that her relationship was governed by a series of contract which, at her request, were not specifically PAYE based.  He drew attention to a sample contract which referred to her as a “self-employed tutor in the field of …” and for payment at various hourly rates.  He pointed to the fact that that contract incorporated a Code of Professional Conduct for Associates found within the Respondent’s documents.

6.	Further he pointed out that the Applicant carried out much of her work from her own house, but was subject to the directions of the company, at which offices of the company she attended and in specific instances where she carried out assessments on assessors.  He said this in paragraph 12 of the Extended Reasons:

“12	There was an understanding, which for the purposes of this Decision I am prepared to accept was a contractual arrangement, that the Applicant would carry out all work that the company had of a particular nature and that the company would provide her with such of it was available (I think that this should read ‘as was available’) and she would carry it out.”

That passages derives from page 31 of the bundle for these proceedings.  This is from a statement of Cherry Booth, formerly training and development manager for Advanced Training Ltd who advanced the opinion, of which no doubt the Tribunal took account, that she believed that the Applicant’s contract protected her employment rights.  What Miss Smith, of course, believed is not a factor on which the Chairman could give much if any weight, in the light he had the contracts and the other documents were before him.  

7.	The legal analysis of the issue commences in paragraph 13 of the Extended Reasons:
 
“I consider one of the principal questions that I have to answer is whether, in the words of the judgment in Market Investigations Ltd v Minister of Social Security [1969] QB 173, “The applicant is a person who is engaged himself to perform these services.  Is he performing them as a person in business on his own account?”.  He found that the Applicant was carrying on business on her own account and was performing services for the Company as part of her business.  There was a business and the Respondents were among an admittedly small number of people were invoiced by the Applicant for services provided as part of her business.”

8.	That was amply borne out by the invoices, some of which I have seen which showed that the Appellant thus rendered invoices.  In paragraph 14, the learned Chairman said the fact that the Applicant was not paid under PAYE is not of itself determinative.  Indeed no single test was determinative.  He then said this.  These words are very important:

“Having considered the (a) control test, (b) the integration or organisational test, (c) the economic reality and (d) the multiple test, I consider the Applicant was not an employee.”

He clearly considered each of these different tests carefully.  He went on say why, the Appellant received neither holiday pay nor sickness pay.  He said he was not satisfied that she was subject to the grievance and disciplinary procedures of the Respondent, although she attended a staff induction course and was handed the staff handbook.  He considered it was clearly in the interests of the Respondent that she knew what the arrangements were.  Thus the fact that certain company materials did not turn her into an employee if she was not otherwise one.  He referred to letters at 2.2. and 2.3 of the bundle before him (pages 33 and 34 of our bundle) and pointed out that she was contacted by the Company with the same letter that all employees were issued when the Company went into administration.  The author of one of these was Cherry Smith, line manager within the first few months of the Applicant commencing to work with the Company.
 
9.	He notes in paragraph 17, that, in the words of Cherry Smith, that she “took up an essential and fundamental role”, was again not determinative or whether there was not an employment relationship.  

10.	Having said he considered all the tests, the Chairman said he did not consider the work that the Applicant did should in any way be underestimated, but it did not answer the question as to whether or not she was an employee, as opposed to carrying on business on her own account.

11.	The Appellant has cited to me dicta from various cases on the various tests which an Employment Tribunal considers in considering a claim of a litigant that he is an employee.  The Tribunal has to look at the tests individually and as a whole and come to the conclusion from all the factors before it.  In my judgment that was something which the learned Chairman did.

12.	In essence the Appellant’s appeal is from the facts found by the Chairman.  An appeal against the findings of fact which he made has to be one of perversity.  As Miss Outhwaite submitted by reference to Yeboah v Crofton [2002] EWCA 674, this is a heavy burden.  She particularly referred me to paragraph 92 of that judgment, as well as to the decision in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440.  At paragraph 33, the then President of the Tribunal, Mummery J expressed himself to the same effect, as he later did in Yeboah as the burden on those who claim a judgment is perverse .  Respecting, as I do, the submissions made by Miss Prescott I cannot conclude that the decision of the Tribunal, on the facts as found, was not one which he was entitled to reach.  Accordingly I do not accept it was perverse.
 
13.	The point of impropriety arises from paragraph 4 of the Notice of Appeal which reads thus:

“During the proceedings I was not questioned on my statement or given the opportunity to expand on it.  I was also not given the opportunity to question the respondent representative.  This is particularly pertinent as there is an inaccuracy in the bundle of documents he presented.  It says, in a document, that I could ‘engage others’ to do the work.  This is not true, because of my experience and qualifications I was expected to conduct the work myself.  As I had signed a contract of employment I fully accepted this.”

14.	In answer to that the learned Chairman in his comments said this:

“1.	These comments are restricted to the matters raised in paragraph 4 of the affidavit.
2.	The applicant gave evidence on affirmation and commenced doing so at 11.30 am.  As she was unrepresented and as her summary statement to which she refers seemed to me to be somewhat short on factual matters I went through her documents with her and asked her questions.  She accordingly gave oral evidence not recorded in her statement.  This process lasted to 12.07 pm.  Since the applicant’s evidence had thus far been given by way of answer to my questions I then asked her if she had anything else to add of a factual nature to which question she replied affirmatively although what she did say was perhaps more of a submission than a factual statement.

3.	The Applicant was briefly examined.
4.	Mr Went who appeared for the respondent (but who did not give evidence) made submissions. (in other words no evidence was called by the Respondent)
5.	The applicant made brief submissions.

The Chairman thus adds:

“6.	I would not have permitted the applicant to question Mr Went since he was not giving evidence.” 

15.	Miss Outhwaite had asked me to hold that this ground of appeal should be struck out because there had been directions by Judge McMullen in giving directions for this appeal as to what the Appellant had to do in her Affidavit and she had not fully obeyed those directions.  When an applicant is in person, in my judgment it would be harsh to strike out a ground of appeal such as that raised because of the failure identified.  It is better practice it seems to be to look into at the merits of the claim of the Appellant.  The Appellant told me that she felt disadvantaged before the Tribunal, because she was somewhat lost in how to deal with what was in the documents presented by the Respondent.

16.	Having looked at the Chairman’s careful judgment I am satisfied that had she raised any points with him and asked for guidance he would have assisted so as he properly could.  If she did not seek guidance, this was not the fault of the Chairman.  The Appellant has sought to be permitted to introduce new evidence for this hearing.  Her application so to do was dismissed.  There was no appeal from that decision.

17.	Paragraph 4 of her grounds of appeal contains specific complaints about the hearing to which the Chairman gives cogent answers.  The documents before him were examined.  The Appellant is wrong when she suggests was not questioned on her statement or given the opportunity to expand on it.  Also her complaint that she was not allowed to question the Respondent’s representative was rightly rejected.  It is not for a representative to be questioned.  Had the Respondent  called witnesses to give evidence to contradict that introduced by the Appellant, such witnesses could have been questioned.  However none were called.

18.	If there was an inaccuracy, as the Appellant says, in the bundle of documents that a matter she could herself have brought to the attention of the Tribunal.  In so far as she did, I am satisfied that the Tribunal paid heed to it.

19.	In the circumstances, having carefully considered the submissions of the Appellant and the submissions of Miss Outhwaite for the Respondent.  I have no doubt that the Chairman was entitled to reach the judgment which it did.  Accordingly, I dismiss this appeal.