Davies v RHM Computing Ltd [1992] UKEAT 59_92_3007

EAT
Davies v RHM Computing Ltd
[1992] UKEAT 59_92_3007 · 1992-07-30
MR JUSTICE HUTCHISON: This is an appeal which comes before us under the now familiar preliminary procedure, by Mr Goodman against a decision of an Industrial Tribunal sent to the parties on 7 November 1991, in which they concluded, after hearing evidence on his side, that he did not have two years continuous employment with the respondents and that, therefore, they had no jurisdiction to entertain his claim for unfair dismissal.The position is as follows. The appellant worked for the respondents over a lengthy period from about 1982 and at the end of June 1991 he was dismissed. The issue on which the question of jurisdiction depended was whether throughout that period he had been employed by them or whether he had, until August 1989, been an independent contractor. The Tribunal heard evidence from the applicant and on his behalf from a man named Butler who was formerly his superior, being employed as the premises controller. They correctly directed themselves that the burden of proof was upon the applicant to show that there were 2 years continuous employment prior to his dismissal and they concluded that he had not discharged that burden.They set out the facts in paragraph 5 where they record:
"The Applicant's evidence was that he commence working for the Respondent as a general handyman/painter in 1982. He was employed on an hourly rate of pay, at that time, at £2.50 an hour. For reasons that were partly for the Applicant's convenience and partly for the Respondent's, he worked mainly in the evenings, at nights, and at weekends. The Applicant's evidence was that he was paid a flat hourly rate. He was not paid overtime or a shift allowance. He was not paid for holidays or for sickness absences. He paid tax and national insurance on a self-employed basis. On occasions, he would hire other people to work with him and would pay them the hourly rate of pay appropriate to the number of hours they had worked. He worked for other companies within the building but was paid by the Respondent for that work. Invoices were prepared each week for the work that he had done and he was paid weekly on the hourly basis. He maintained that he was employed for the whole period up until 1 August 1989 when he was asked to sign a contract of employment. He would, on occasions, be asked to perform duties such as fire drill and on other infrequent occasions he would serve for short periods as a relief on reception. He maintained that he would not have been so asked if he had [not] been employed.
6 After he had signed the contract of employment, the evidence was that he was paid for overtime worked, shift allowances, holiday and sickness pay. Before he signed a contract of employment he would sign in at reception. After he signed the contract of employment he would clock in and clock out."They then, in paragraph 8, give the reasons for their decision that he was prior to August 1989 a self-employed person - an independent contractor. They say this:
".......... the Tribunal finds as a fact on the evidence, that the Applicant's employment position was that of a self-employed person and not as an employed person prior to 1 August 1989. The Tribunal based this decision on the fact that the Applicant was not required to clock in or clock out as other employees were so required."
- it seems from the documents that they might well have added "nor did he belong to the Company's pension scheme which he did after August -
"He paid tax and national insurance on a self-employed basis. He would hire other people to help him on occasions and invoices would be submitted, albeit prepared by Mr Butler, weekly. The contract of employment, which the Applicant signed, clearly shows that the applicant was employed from 1 August 1989 and clearly states that the Applicant's employment was not continuous with any other service. The Applicant's evidence was that he did work for people outside the building on occasions. In addition, the Tribunal noted that the heading on the invoice stated "R Goodman & Co". Clearly, this was not an employed situation. The evidence points to the fact that the Applicant was in business on his own account up to 1 August 1989, albeit he worked in the main for the Respondent company."
Mr McMullen has sought to challenge each of those alleged indicia of independent contractor status. Adverting first to the question of "clocking" he tells us, and of course we accept, that the evidence was that shift workers employed by the respondent company also signed in rather than clocked in. Therefore, he suggests that the finding in paragraph 6 and the reliance upon it in paragraph 8 are perverse. The answer to that, it seems to us, is this: it may be that shift workers - and the appellant was not a shift worker - signed in but himself apart, all others who were not shift workers clocked in. Moreover, he began to clock in after 1 August. Plainly, that change was a factor not decisive in itself but a factor to which the Industrial Tribunal was entitled to attach importance.Mr McMullen makes no real criticism in relation to holidays, sickness and overtime accepting that there was a change in that regard after, as compared with the situation before. In relation to tax and national insurance he again concedes that it is a factor to which it is permissable to have regard in determining the status of an alleged employee but points out, as indeed one could point out and we credit him with pointing out in relation to each and every one of these factors, that in itself it is not decisive.Turning to the hire of others, he again argues that it is not in any sense conclusive of a self-employed status that a man should hire others to perform work for his employers. The others were paid by the employers and it is perfectly consistent with an employed status Mr McMullen submits. We venture to think that the Industrial Tribunal were here again entitled to treat it as a factor because it is, we should have thought drawing on our own experience as they no doubt drew on theirs, somewhat unusual for an employee to hire others in that way whereas it is very common for a man who is self-employed and working as an independent contractor to bring in fellow independent contractors whose attendance he arranges.In relation to the contract of employment Mr McMullen submits that it is misguided to look at that contract prepared by the employers asserting what it was in their interest to assert and that it does not throw light on the situation that existed before August. As to that he was constrained to accept that the fact that such a contract, recording that it was not continuous with any other service was received by the appellant and not protested about was some evidence which could support the notion that he had not previously been employed.The sixth factor is that he worked for others outside the building. Mr McMullen tells us that those for whom he worked were only the Managing Director and other employees of the respondent company and that that was the evidence. Accepting, as we do, that that was so that perhaps diminishes the force of that as a relevant factor; it certainly does not in our judgement destroy it.Finally, there is the question that Mr Goodman had issued invoices headed "R Goodman & Co". Again, as it seems to us, that is a pointer to self-employed status - not decisive in itself but certainly a relevant factor.For us to entertain the idea that this appeal has any hope of success we would have to be satisfied that there was an arguable possibility of this Tribunal being persuaded that the Industrial Tribunal erred in law or reached a conclusion that no reasonable tribunal could reach on the basis of that evidence. In our judgement and for the reasons that we have given when considering individually the indicia on which they relied, they were perfectly entitled to have regard to them in the way they did. They plainly treated their cumulative effect rather than their individual cogency as decisive. We cannot conceive that there is any basis on which that conclusion can be impugned or on which this court could be persuaded to intervene and accordingly, notwithstanding the very helpful arguments addressed to us by Mr McMullen, we dismiss this appeal.