Appeal No. UKEAT/0719/04/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 22 February 2005
Judgment delivered on 22 April 2005

Before
HIS HONOUR JUDGE J R REID QC
LORD DAVIES OF COITY CBE 
MR J C SHRIGLEY

ROYAL NATIONAL LIFEBOAT INSTITUTION	APPELLANT

MS A BUSHAWAY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JAMES LADDIE
(of Counsel)
Instructed by:
EEF Legal Services
Broadway House
Tothill Street
London 
SW1H 9NQ	
For the Respondent	MS A BUSHELL
(The Respondent in person)	

HIS HONOUR JUDGE J R REID QC

1.	This is an appeal from a decision of an Employment Tribunal held at Southampton 
(Mr I A Edwards chairman). After a hearing on 14 June 2004 and a decision meeting on 
29 June 2004 on a preliminary point the Tribunal held that the Applicant before it, 
Mrs Bushaway, was an employee of the Respondent, RNLI, from her original appointment on 21 October 2002 until her resignation on 27 February 2004 and therefore had the necessary qualifying service to bring a claim for constructive unfair dismissal. The decision was promulgated on 6 July 2004.

2.	In this decision we shall describe the parties by their designation before the Employment Tribunal

3.	The Respondent, which appeared by counsel, appeals against the Tribunal’s decision. The Applicant appeared in person.

4.	The case is an “employment agency” case. The Respondent contends that the Applicant did not have sufficient service for an unfair dismissal claim because she had worked for an agency in a temporary capacity from 21 October 2002 until she became a permanent member of staff on 24 March 2003 and had resigned less than a year after becoming a permanent member of staff. It submitted unsuccessfully to the Tribunal that she only became its employee on becoming a permanent member of staff. The Tribunal held that the Applicant had in law been an employee of the Respondent from the time she first worked for it ostensibly as a self-employed worker supplied by an employment agency. 

5.	The factual background was as follows. 

6.	The Applicant had been made redundant by Barclays Bank where she had worked for almost 20 years. She approached the Robert Half Group, an employment agency, and asked them to try to find her a new permanent position. The following day the Agency offered her a temporary position with the Respondent and she began work at the Respondent’s premises at Poole on 21 October 2002 as an Administration Assistant in the Fund-raising Department. This was a pre-existing full-time position which had become vacant but which could not be filled on a permanent basis at that time because there was a policy that no new staff were to be employed. The Applicant was told by the agency (as it had been told by the Respondent) that this was to be a temporary assignment which could become permanent for the right person. There was therefore this factor, which appears to us (as it clearly appeared to the Tribunal) to be significant in this unusual case, that it was clearly envisaged by all parties that, assuming all went well, when the moratorium on a new permanent appointment was lifted, the Applicant’s position would become permanent.

7.	The Applicant had been required to sign an agreement with the agency. Throughout the agreement she was described as a “temporary worker”. By clause 4 if she was unable to provide her services to a client she was required to inform the client by 10.00 a.m. on the first day of any absence. Paragraph 5 provided that there was no obligation on the agency “to provide introductions in respect of the Temporary Worker to accept any offer or work (sic).” The agency was responsible for deducting national insurance and income tax under Schedule E from the Applicant’s wages. By paragraph 10, the Applicant agreed that she was not an employee of the agency or of the Respondent.

8.	On starting work with the Respondent she was sent a letter headed “Confirmation of appointment for temporary worker by Robert Half Group Limited”. The letter sent her a time sheet to be completed each week and signed by the Respondent so that her “wages” could be paid. It stated her “normal hours of work for the duration of the appointment will be Monday-Friday hours as agreed)”. The rate of pay would be £6.00 per hour for “up to 7.5 hours per day Monday to Friday inclusive”. The letter confirmed among other things that she would be supplying her services as a self-employed person and that the agency would act as paying agency for the Respondent, would be responsible for administering her income tax and NI contributions and would administer any accrual of annual leave under the Working Time Regulations 1998. The letter concluded: “We would like to point out that in the event of your finding suitable permanent employment during the course of this appointment a minimum of five working days notice to Royal National Lifeboat Institution will be required.”

9.	The agency sent the Respondent a “Confirmation of booking of a temporary worker with the Robert Half Group” confirming the Applicant’s appointment on 21 October 2002. It set out, amongst other things, the charge to the Respondent of £8.75 per hour and noted that VAT would be charged on the commission element of that fee. The Respondent was never told the amount being paid to the Applicant by the agency, though it could probably have worked it out from knowing the amount of VAT it was being charged and could always have asked its agent. The letter stated “In making the introduction of Angie to you, the Robert Half Group acts as your agent only in providing introductory services to you.” The letter enclosed not only a short form agreement to be signed by the Respondent and the Applicant expressed to be “recording the term of the temporary assignment”, but also a copy of the agency’s terms of business. This latter document was not supplied to or seen by the Applicant.
10.	The short form agreement recorded that the Respondent had agreed to engage the Applicant (described as “the Temporary Worker”) under a contract for services. The purpose was said to be to “set out the terms on which such services will be provided by the Temporary Worker to the Company.” The Applicant agreed by clause 1.2 to provide her services to the Respondent but it was also agreed in clause 1.3 that the Respondent was under no obligation to provide the worker with work and there was no obligation on the Applicant to perform any work for any particular number of hours or days in the week. This was in marked contradistinction to the letter from the agency to the Applicant, which provided for her to work a 37.5 hour week. Clause 1.4 it was stated that the engagement could be terminated immediately by written notice by either party, though this was inconsistent with the letter dated 21 October 2002 from the agency to the Applicant which required the Applicant to give a minimum five days’ working notice of termination of the agreement to the Respondent if she found suitable permanent employment. 

11.	Clause 2.1 provided that the Respondent “shall pay the Temporary Worker a fee as an hourly rate negotiated and agreed by the Agency on behalf of the Temporary Worker”. Clause 2.2 dealt with the possibility of overtime “outside the threshold of forty hours per week or thirty –two hours in case on a week where a Bank Holiday falls on a Monday.”

12.	Clause 3 set out the “Duties of the Temporary Worker” which included at paragraph 3(c) obligation to comply with any rules and regulations of the Respondent drawn to her attention “to the extent that they may be reasonably applicable.” 

13.	Clause 5.1 provided that nothing contained in the agreement should be construed or have effect as constituting any relationship of employer and employee or partners between the Respondent and the Applicant. Clause 5.3 provided “This Agreement constitutes the whole agreement between the parties and any amendment to it shall be made in writing.”

14.	The “terms of business” defined “Temporary Worker” as “the self-employed temporary worker introduced by the Robert Half Group to the [Respondent]”. Clause 4.1 provided for the Respondent to pay the agency the “hourly charge” comprising the hourly rate charged by the Temporary Worker plus the agency’s commission charged in acting as the Respondent’s agent, “any national insurance contributions payable in respect of the Temporary Worker’s assignment to the Client and a pro rated accrual of annual leave entitlement (as indicated by the Working Time Regulation 1998)”. It also contained an entire agreement clause at clause 8.1: “These Conditions... represent the entire agreement between the [agency] and [the Respondent] except to the extent that these Conditions are varied in writing and signed by a director of the [agency].” 

15.	The Applicant began working in the Fund-raising Department and received her instructions direct from Ann Wilkins as her line manager. All her equipment was provided by the Respondent and she worked regular hours, five days per week. If she required any time off for any reason or if she required any holidays, she had to negotiate with Miss Wilkins. She was involved in a naming and dedication ceremony for a new lifeboat in February 2003 but at this time she required some time off because of the birth of her granddaughter. She had to negotiate with Miss Wilkins for appropriate leave and this leave had to take into account the naming and dedication ceremony for the new lifeboat and the obligations for the arrangements for that ceremony. It was not practicable for the Applicant to take a full week off work because of her commitments to the Respondent at this time.

16.	Eventually, at the beginning of 2003, the moratorium on new recruitment of permanent staff being lifted and the HR Department gave authority to Miss Wilkins to appoint a permanent member of staff to do the work which the Applicant had hitherto been doing. The job was advertised and it was exactly the same job which the Applicant had been doing from October 2002. She applied for the job. She was successful in her application and she was made a formal employee with effect from 24 March 2003. The Respondent wrote to the Applicant by letter dated 11 February 2003 confirming the offer of employment and a formal statement of particulars of employment was given to the Applicant on 17 March 2003 which describe the Applicant’s period of employment as commencing on 24 March 2003.

17.	The Applicant then continued in exactly the same role under her line manager, 
Miss Wilkins. She worked in her position as agency worker to Friday 21 March 2003 and she began as a permanent employee on Monday 24 March 2003. Subsequently, she was promoted to secretary to the Chief Executive on 21 July 2003.

18.	The Applicant eventually gave notice by letter dated 31 January 2004 to expire on 27 February 2004. It was this resignation which led to her claim for constructive unfair dismissal.

19.	Against this factual background the Employment Tribunal referred to Clark v Oxfordshire Health Authority [1998] IRLR 125, Carmichael v National Power plc [2000] IRLR 343, Franks v Reuters Ltd [2003] IRLR 423 and Dacas v Brook Street Bureau(UK) Ltd [2004] IRLR 358. It concluded at paragraph 51 of the Extended Reasons:
“51.  It is therefore, apparent from these authorities that a Tribunal not only has to look at the written agreements which the parties concluded, but also at their conduct and how they operated the arrangement in practice. A label which the parties place on the arrangement is a helpful indication of the situation, but it is no more than that, and the Tribunal must look at the reality of the situation.”

Then at paragraphs 56-58 it stated:

“56.  We are well aware that in the present case there had been agreements between the agency and the Respondent, the agency and the Applicant and the Applicant and the Respondent These documents are all recorded on pages 9 to 19 of Rl and there are also the letters to which we have referred in our findings of fact above.
57.  These documents purport to suggest that the Applicant was self-employed and was therefore not employed either by the agency or by the Respondent.
58.  However, we are aware that we should not necessarily take at face value the description which the parties place upon an agreement and it is the Tribunal's duty to look at the reality of the situation and, as already indicated in the previous authorities, it is necessary to look at all the surrounding circumstances.”

20.	The Tribunal went on to examine the facts and concluded that there was a contract of employment in existence for the whole of the period between October 2002 and March 2003.

21.	The Respondent challenges this conclusion on three grounds: (1) that the Tribunal erred in law in construing the contractual documents, (2) that it misconstrued the expression “Temporary Worker” in the contractual documentation, and (3) that it failed to take material evidence into account or was perverse in its findings.

22.	As to the first ground, the Respondent referred to the entire agreement clauses at clause 8.1 of the Respondent/agency agreement (ie the terms of business), and clause 5.3 of the Respondent/Applicant agreement. Counsel submitted that the Tribunal erred in law in holding that it was its duty to examine the factual situation outside the contractual documentation. He relied on Carmichael v National Power [1999] ICR 1226 at 1230-1231 where Lord Irvine LC said:
 “In my judgment it would only be appropriate to determine the issue in these cases solely by reference to the documents in March 1989, if it appeared from their own terms and/or from what the parties said or did then, or subsequently, that they intended them to constitute an exclusive memorial of their relationship.”

He also referred to Franks v Reuters Ltd [2003] ICR 1166, where Mummery LJ said at 
para 20:

“In some cases it may be unnecessary to look beyond or beneath the documents, which the parties have agreed should embody the exclusive record regulating their relations. As Lord Irvine LC recognised in Carmichael's case, at p 1230G, where the case turns exclusively on the true meaning and effect of the documentation, further inquiry about what the parties said and did may not be appropriate.”

and Dacas v Brook Street Bureau (UK) Ltd [2004] IRLR 358 where Mummery LJ said at 
para 17:

“The critical point is that, although the construction of the contractual documents is important, it is not necessarily determinative of the contract of service questions, as contractual documents do not always cover all the contractual territory or exhaust all the contractual possibilities.”

We note in passing that since the conclusion of the hearing in this case the EAT (Chairman His Honour Judge Serota QC) in Cable and Wireless plc v Muscat (EAT/0661/04/LA) has decided Dacas was not decided per incuriam He submitted that these passages recognised that there are cases when the contractual documentation does contain the totality of the contractual terms and conditions, that recourse to extraneous evidence will not then be appropriate, and there will be some cases where the documentation is, on its face, intended to be an “exclusive memorial” of the relationship. This rule, he submitted, was the established law as to contractual construction as embodied in the “parol evidence rule”. 

23.	He referred to various authorities containing dicta about the rule, to the Law Commission report on the rule and (Law Com No.154) and Chitty on Contracts (29th Ed, 2004) at para12-098 which contains the following passage:
“Whether the parties did so agree [that the written document should contain the entirety of the agreement] or intend is a matter to be decided by the court upon consideration of all the evidence relevant to this issue. It is therefore always upon to a party to adduce extrinsic evidence to prove that the document is not a complete record of the contract. If, on that evidence, the court finds that terms additional to those in the document were agreed and intended by the parties to form part of the contract, then the court will have found that the contract consists partly of the terms contained in the document and partly of the terms agreed outside of it. The parol evidence rule will not apply.”

24.	Counsel submitted that a written agreement containing all of the terms one would expect to find in an agreement of that nature will raise a strong presumption that it is intended to be a complete record of that agreement. The position was still more obvious where the document contains an entire agreement clause. It followed, in his submission, that the Tribunal was wrong to look beyond the written agreements. It followed, he suggested, that the Tribunal should not have looked beyond the written words and should therefore have concluded that the Applicant was self-employed and providing services under a contract of services until her formal permanent engagement.

25.	Beyond that he submitted that even if the Tribunal was right to look beyond the documents, it erred in law in describing the parties’ description of their arrangements as a “helpful indication of the situation but... no more than that”, as it did at paragraph 51 of its reasons. It should, as Lord Irvine described it in Carmichael, have recognised that the written contract was “one, albeit important, relevant source from which it was entitled to infer the parties’ true intentions.” His submission continued that one would expect a balancing exercise to have been conducted between the factors supporting the existence of an employment relationship and the factors supporting the existence of a non-employment relationship, but that did not occur. Instead, the Tribunal simply recited all of the factors supporting the existence of an employment relationship and concluded that one existed. Because there was no reference to the contractual labels after paragraph 58 of the decision, it was, he said, apparent from the Tribunal’s reasoning that the parties’ agreement as to the nature of their relationship was thereafter disregarded.

26.	In our judgment this criticism of the Tribunal is misconceived. There may be cases in which it is not permissible to look beyond the written terms of the written agreement, but this is not one of them. The existence of an entire contract clause is not conclusive. When one looks at the written agreement between the Respondent and the Applicant in the context of what was actually negotiated and what was done both before and after the Applicant started work, it is clear that it does not reflect and contain the entire bargain between the parties, as can be seen from the matters set out below.

27.	Paragraph 1.3 did not accurately reflect the relationship between the parties. There was an agreement as to the hours the Applicant was to work: hence the terms of the letter from the agency to the Applicant referring to “(hours as agreed)”. Hence also the need for the Applicant to negotiate time off rather than just refusing to work when she wanted to take a complete week off for the birth of her grandchild.

28.	Similarly the provisions for overtime in clause 2.2 did not accord with the provision for her to work a 37.5 hour week at £6.00 per hour.

29.	The provisions relating to pay in clause 2.1 were inconsistent with the way in which she was actually paid. She was paid (as envisaged by her and the agency in her letter of “Confirmation of Appointment” and the agency and the Respondent in the agency’s terms of business) by the agency against signed off time sheets and not by the Respondent direct. Further the clause did not identify the hourly rate at which she was to be paid but referred to “an hourly rate negotiated and agreed with the Agency on behalf of the Temporary worker”.

30.	Whilst the Respondent was correct to submit that the authorities envisage that there may be cases in which the parties intend that all the terms of their agreement other than those implied by law are contained in the contractual document or documents, this was not such a case. As Lord Hoffman said in Carmichael at para 29: 

“... I think that the Court of Appeal pushed the rule about the construction of documents too far. It applies in cases in which the parties intend all the terms of their contract (apart from any implied by law) to be contained in a document or documents. On the other hand, it does not apply when the intention of the parties, objectively ascertained, has to be gathered partly from documents but also from oral exchanges and conduct. In the latter case, the terms of the contract are a question of fact. And of course the question of whether the parties intended a document or documents to be the exclusive record or the terms of their agreement is also a question of fact.”

In Cable and Wireless plc at para 49 Judge Serota QC followed this dictum saying: 

“Secondly, that in ascertaining the terms of any contract a Court or Tribunal is not precluded from going outside the terms of written agreements and indeed is bound to do so, unless it is clear that the parties intended all the terms of their contract apart from those implied by law, to be contained in relevant a document or documents.”

This was a case like very many others in the employment field where (notwithstanding the entire agreement clause in the written agreement) the written agreement did not, contain the entirety of the agreement. 

31.	As to the suggestion that the Tribunal gave inadequate weight to the label attached to the relationship by the parties, it does not seem to us that the description of the label attached as “a helpful indication… but no more than that” indicates any error of law. The passage in Lord Irvine’s speech to which counsel referred was a passage relating to the weight to be given to the whole of the written contract, not merely the label attached to the relationship in the written document. It is plain from the totality of the Tribunal’s reasoning that it looked with care at the written documents and gave them considerable weight, although they found other factors outweighed the labels given by the written documents.

32.	The structure of the decision was such that it is not a fair criticism to suggest that the Tribunal, having decided it should look beyond the written word, ignored the labels attached completely. It had made a long series of findings of fact, then dealt with the submission of law and held that it should look at all the relevant circumstances. Having done that, it related the factors which it relied upon in reaching the conclusion that the Applicant was from the beginning an employee. It does not follow that it failed to give due weight to the labels merely because it did not expressly refer again to them again. Indeed at paragraph 56 the Tribunal makes it clear that the written documents are well in mind. 

33.	It follows that the first ground of appeal fails.

34.	As to the second ground, it involves an alleged misconstruction of the contractual documentation. It was submitted on behalf of the Respondent that the Tribunal misconstrued the phrase “temporary worker”, at paragraph 64 of its Extended Reasons, where it stated:

“In all the documents, the Respondent has described the Applicant as a temporary worker rather than an agency worker. Also, the Chief Executive, in the reference given on 9 February 2004... states that the Applicant joined as a temporary “employee” in October 2002. All these point towards employment rather than self-employment.”

35.	The contractual documentation referred to Mrs Bushaway as a “temporary worker”. This expression was specifically defined in the terms of business sent to the Respondent but (never seen by the Applicant), at clauses 2.1 and 7.5, as “a self-employed temporary worker”. The same expression is also present (but undefined) in the two other principal documents, in which Mrs Bushaway was stated not to be an employee.

36.	The point the Respondent sought to make from this passage is that it was an error of law and/or perverse to construe the phrase “temporary worker”, especially as it is defined in one of the agreements, to “point towards employment rather than self-employment”. It was submitted that the phrase, absent any explanation, is entirely neutral and it was entirely irrelevant that the phrase “temporary worker” is used rather than “agency worker”. However, when one considers the specific definition accorded to “temporary worker” in the terms of business and what was submitted to be the implicit definition apparent in the other two agreements, the Tribunal’s approach became, it was said, unsustainable.

37.	In our judgment that submission is ill-founded. It is clear that the last sentence of paragraph 64 of the reasons, to which exception is taken is summarising the overall effect of a number of factors. Its context was this:

“62.	Although it is not conclusive, the Tribunal is also entitled to take into account what appears to have been the intentions of the parties when the Applicant was originally interviewed for the post in October 2002. She was told quite clearly by the agency that it was a temporary assignment which could become permanent for the right person. This evidence has been supported by the letter which we have seen from her line manager, Ann Wilkins (page 42 of Rl), which stated that:
"Therefore the brief we gave the agency was that this post would have to be temporary, but with a view to becoming permanent just as soon as we were allowed to fill the post again".
63.	In fact this intention was fulfilled when the Applicant was appointed as a permanent employee on 24 March 2003 to do exactly the same job in all respects as that which she had already been doing hitherto.
64.	In all the documents, the Respondent has described the Applicant as a temporary I; worker rather than an agency worker. Also, the Chief Executive, in the reference given on 9 February 2004 (page 41 of Rl) states that the Applicant joined as a temporary "employee" in October 2002. All these point towards employment rather than self-employment.”

38.	Whilst it is a permissible criticism that the Tribunal did not make reference to the fact that in one document (not seen by the Applicant) the term “temporary worker” was defined as a self-employed worker and the Tribunal was therefore in error in using the reference to “temporary worker” rather than “agency worker” as a factor in its conclusion, in its context the overall point made by the Tribunal in these paragraphs was one it was entitled to make and cannot be described as either an error of law or perverse. On no basis, it seems to us, can the error such as it was be said to affect the overall decision.

39.	The third ground of appeal was that the Tribunal failed to take material evidence into account or alternatively, the Tribunal’s conclusion in paragraph 61 of its decision that the Applicant was “treated in exactly the same way as any other employee” during the disputed period was perverse.

40.	Counsel referred first to paragraph 53 of the Tribunal’s decision, where it took into account that until the Applicant’s permanent appointment the Applicant’s tax and national insurance were deducted via the PAYE scheme through the agency. This, it decided, was not relevant to determining whether she was an employee of the Respondent. That arrangement, it was submitted, was not consistent with an employment relationship as between the Respondent and the Applicant and (although not determinative of the issue) it was perverse to disregard the factor as irrelevant. It was clear that the agency was trying to ensure that the Applicant was treated as self-employed. To that end it was clearly necessary to treat her tax and national insurance on the basis she was self-employed. Whilst it might have been more accurate for the Tribunal (which took these facts into account) to say that it found that they were of little or no weight rather than to say the factor was irrelevant, it is clear in the context of the whole decision that this was what the Tribunal was in fact doing.
41.	Other differences it was said the Tribunal wrongly failed to take into account were:

(a)	Employment was dependent on medical clearance, whereas engagement as a temporary worker was not.
(b)	References were required before she took up her permanent post, but not before her engagement as a temporary worker.
(c)	Until her permanent appointment the Applicant was paid hourly for hours worked at £6.00 per hour: after her permanent appointment she was salaried at £15,000 per annum.
(d)	Until her permanent appointment the Applicant’s weekly payment depended upon the production by her of signed timesheets. During employment, the Applicant was paid monthly in arrears and did not have to produce timesheets.
(e)	Until her permanent appointment, she was paid by the agency as agent for the Respondent. Afterwards she was paid by the Respondent direct.
(f)	Until her permanent appointment, her pay was agreed between her and the agency (as agent for the Respondent). The Respondent did not know (because it did not inquire and did not work it out as it could have done from the information it had) what she was paid per hour. During employment, she was paid directly by the Respondent.

42.	It was submitted that this last factor was of particular importance given, s.l(4)(a) of the Employment Rights Act 1996 which requires an employer to provide the employee with details of rate of remuneration. In this case, it was suggested the Respondent would have been unable to comply with that requirement.

43.	Further points were also made about differences in her employment conditions. It was asserted was that until her permanent appointment her hourly rate of pay was fixed regardless of the number of hours worked. After her permanent appointment, she was entitled to time off in lieu or overtime payments if she worked more than her normal hours. Until her permanent appointment, she was subject to the Respondent’s disciplinary rules, but she did not, however, enjoy the benefit of its disciplinary or grievance procedures. Until her permanent appointment she was entitled to the statutory annual leave i.e. 4 weeks’ leave per annum including bank and public holidays but afterwards she was entitled to 26 days’ leave plus bank and public holidays. Until her permanent appointment she was not entitled to the benefit of the Respondent’s sick pay scheme: if she did not work, she got no pay. Until her permanent appointment she was not entitled to contribute to the Respondent’s contributory pension scheme, which was automatic for employees. Until her permanent appointment her engagement could be terminated immediately by either party giving written notice to the other- according to clause 1.4 of the Respondent/Applicant agreement (though this differed from the terms of her letter of appointment). The notice requirements during employment were greater than the statutory minima.

44.	It was submitted that these matters showed many significant and practical differences in her conditions before and after 24 March 2003 and the Tribunal erred in law in failing to have regard to those differences, or alternatively reached a perverse conclusion in holding that there were no differences in treatment.

45.	In our judgment much of this criticism starts from the unfounded assumption that the expression “treated in exactly the same way as any other employee would be treated” is intended to be contract specific and to refer to the way other employees of the Respondent on some hypothetical standard RNLI contract were treated. In our view this is not the proper interpretation of the expression. The Tribunal were doing no more than looking to see whether the treatment of the Applicant was such as would be extended to an undoubted employee working on the terms generally applicable to the Applicant (ie on a short term basis, rather than being engaged for the long term). What it found was that she was treated as an employee.

46.	It does not seem to us that the fact that she was engaged on terms which were in significant respects different from those on which long term employees were engaged (and those on which she was later appointed) helps much in determining whether or not the terms on which she was initially engaged amounted to a contract of employment. An employee’s terms of employment may well be very different at different times in their employment. What matters is not whether those terms are different at different times but whether at any one time they indicate employment or self-employment.

47.	Clearly there were significant differences in the mode of appointment: a short term temporary employee (particularly one with the Applicant’s employment history) would not be necessarily be required to provide references or to pass a medical. Similarly a short term employee might be paid at a different rate and would not be expected to have access to the Respondent’s pension scheme. He or she might well not be accorded sick pay, or the same grievance procedure as a long-term employee. He or she might well have shorter holidays and be subject to the minimum notice provisions allowed by law.

48.	The principle question on pay raised a different issue. The essence of this complaint was that the Tribunal overlooked the fact that until her permanent appointment the Applicant was being paid by a third party and so could not be said to be an employee of the Respondent. The rate of pay the Applicant received had been fixed by agreement between the Applicant and the agency acting on behalf of Respondent. The agency offered her £6.00 per hour which she accepted. After she commenced work the Respondent signed off the Applicant’s worksheet each week, thus identifying to its paying agent, the agency, the hours worked and the amount the Applicant should be paid. The agency then paid that amount as agent for the Respondent. The agency billed the Respondent for amount it paid, plus national insurance, its charges and VAT on its charges. This scheme had the advantage to the agency of ensuring that it kept tabs on what work the Applicant was doing for its principal, the Respondent, and enabled it to recover its fees. The scheme did not mean that it was the agency which was the principal paying the Applicant. Both the terms of business supplied to the Respondent and the agreement the Applicant made with the agency made this quite clear. The fact that payment was made by an agent for the employer does not mean that she was not being paid by the employer. The argument therefore has no substance.

49.	So far as the remaining questions on pay are concerned: as to s.l(4)(a) of the Employment Rights Act 1996 (which requires an employer to provide the employee with details of rate of remuneration) the Respondent, if asked, could either have worked out the details from the information it had or have asked its agent for the details. So far as overtime is concerned, the suggestion the Applicant was not entitled to overtime until her permanent appointment appears to be unsubstantiated by any findings:  on the papers before us she was entitled to overtime if she worked more than her normal hours from the time she joined the Respondent until her permanent appointment. As to her rate of pay, whilst she had initially accepted a rate of £6.00 per hour offered by the agency on behalf of the Respondent, when she applied for and obtained the permanent post, she negotiated a salary within the pay bracket indicated in the advertisement for the job. The fact she in effect negotiated a pay rise does not mean she was not an employee before, any more than the switch from hourly paid to an annual salary indicates a change in her employment status. 

50.	It follows that in our judgment none of these matters were matters which should have led the Tribunal to reach a different conclusion and that this third ground of appeal also fails. The appeal must therefore be dismissed.