Appeal No. EAT/1216/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MS B SWITZER
MR T C THOMAS CBE

MR IAN SENIOR	APPELLANT

THE NESCO GROUP	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr Ian Wilson
Solicitor
Appearing under the 
Employment Law 
Appeal Advice Scheme 

JUDGE J McMULLEN QC

1	This case is about employee status for the purposes of unfair dismissal and breach of contract.  It is an appeal by the Applicant in those proceedings against a Decision on a preliminary point of an Employment Tribunal, Chairman Mr R L L Williams, sitting at Sheffield on 7 August, promulgated with Extended Reasons on 20 August 2001.  The Applicant was in person, the Respondent was represented by a solicitor.  The Applicant claimed unfair dismissal and breach of contract for loss of three years’ notice pay. 

2	The issue before the Tribunal at the preliminary hearing was whether the Applicant was an employee.  The Tribunal decided he was not and dismissed his claim.  If he were, he did not have sufficient service to claim unfair dismissal, the Tribunal found.  That latter finding is not challenged.  The Applicant appeals against the finding on status on grounds, as set out in the Skeleton Argument and oral submissions today, made by him and on his behalf by Mr Wilson, who appears through ELAAS.  

3	In short, the Applicant contends that he was properly an employee of the Respondent.  He claims that if the Tribunal is right in its Decision against him, and that he is not an employee, then all agency workers like him are working illegally.  He addressed us in person, asking us to make a judgment which would make clear the position of all agency workers throughout the United Kingdom, in language free of gobbledegook.  We are not sure that he will be satisfied with the judgment which we give.  

4	The Applicant was engaged in a working relationship, to put it neutrally, by the Respondent as a commissioning engineer at BT telephone exchanges, from 4 October to 24 November 2000, when the relationship ended.  The Respondent says it was terminated pursuant to the terms of a written contract.  The Respondent’s business is providing temporary contract staff to its clients.  The contract between the Applicant and the Respondent provides that no contract of employment arises.  The Respondent terminated the contract as it client, Marconi, complained that the Applicant failed to fulfil quality standards.  If the Applicant succeeds, the Respondent counterclaims for a laptop, which it says the Applicant misappropriated from Marconi.  

5	No decisions have been made by the Tribunal on those issues, in the light of its decision to hold a preliminary point hearing.  As the Tribunal found, many lay people find it hard to accept that an agency worker with a regular engagement is not an employee.  It said so in terms, Mr Senior himself told us today.  

6	The Tribunal looked at the factors pointing one way or the other, in respect of an employment relationship.  This is correct, see O’Kelly -v- Trust House Forte [1983] ICR 728 CA.  The Tribunal directed itself to the relevant provisions of the Employment Rights Act 1996 section 108, and the leading authorities in this field, which it cited in its Extended Reasons.  These are: Montgomery -v- Johnson Underwood Ltd [2001] IRLR 269 CA and Motorola Ltd -v- Davidson & Melville Craig [2001] IRLR 4.  It found an express contract for services.  It was found to be “A Contract for the engagement of the services of a temporary worker”.  It found that there was no control by the Respondent over the work of the Applicant, and it found that there was no mutuality of obligation.  

7	The Tribunal concluded that the Applicant was not an employee of the Respondent, but in an aside, more likely was an employee of Marconi, if at all.  In that commonsense judgment, the Tribunal was, in our view, recognising the reality of the relationship which was that Marconi was able to have work done for it, on a regular basis by a regular person, or team of persons, yet was not responsible for the establishment of an employment relationship.  Nevertheless, the Applicant sued only the Respondent, and not Marconi.  

8	The Applicant submits that the Employment Tribunal had erred in law and has given a list of sixteen factors which he says point in favour of his employment.  The Applicant told us today that all of these were contained in the Applicant’s evidence which the Employment Tribunal heard.  They have been reinforced by him today.  

9	Some of them, however, include material which was not before the Employment Tribunal, in particular, a document indicating that his relationship was restricted to one “employer”.  It is clear from what the Applicant told us that the relationship between the Applicant and the Respondent consisted not simply of the contract for the engagement of the services of a temporary worker, but was built up from a number of oral communications and discussions which, together, form the legal basis of the relationship.  Such discussions included, for example, qualification, training, control and direction and supervision.  

10	In these circumstances, therefore, the approach of a Tribunal would be to weigh all the factors as a matter of fact, pursuant to the direction given by the House of Lords in Carmichael -v- National Power PLC [2000] IRLR 43, and particularly, the speech of Lord Irvine LC.  On Mr Senior’s behalf, it is also submitted that the Tribunal should have considered McMeechan -v- Secretary of State for Employment [1997] IRLR 353 CA.  

11	McMeechan is referred to in Montgomery by Brooke LJ at paragraph 47, where it can be seen that a distance is placed between it and the Montgomery decision.  Indeed Brooke LJ says:
“I have great sympathy with the industrial tribunal, and with the lay members of the Employment Appeal Tribunal if they considered that the decision of this Court in McMeechan, freed them from the obligation of identifying the irreducible minimum requirements of a contract of employment”

Given this approach, citing in particular the more recent authority of Carmichael, we do not consider that the Employment Tribunal in our case erred in failing to cite and follow McMeechan.  True it is that McMeechan deals with the position of a person sent by an agency to a single employer, but since the Tribunal considered the later authority of Montgomery, it must have observed the views of Brooke LJ, and in our view, cannot be criticised for not expressly citing McMeechan.  

12	In our judgment, the material placed before the Employment Tribunal entitled it to come to the conclusion that it did.  Subsequently retrieved material from the Inland Revenue by Mr Senior, put before us today, might have assisted the Tribunal, but it did not have it in front of it.  We have observed that Mr Senior is a highly articulate person, capable of putting all matters before a Tribunal which would assist his case, and have no doubt that he did in fact do so when questioned by the Tribunal Chairman in order to elucidate the facts of his case. 

13	It is so difficult in cases involving the definition of employment for an appeal body to interfere in what is essentially, in a case like this, the evaluation of the various factors pointing for and an against an employment relationship.  That is the primary task of an Employment Tribunal which it has, in our judgment, discharged faithfully in this case.  

14	We are grateful to Mr Senior for coming to us today to help us through this problem and to Mr Wilson for lending his arguments.  We are sorry that this may well be a disappointment to Mr Senior, but we have no doubt that the Employment Tribunal reached a conclusion which was open to it on the facts, that he was not an employee of the Respondent. This appeal is dismissed.