Heeley v Trell Contractors (Watton) Ltd [1992] UKEAT 93_92_0412

EAT
Heeley v Trell Contractors (Watton) Ltd
[1992] UKEAT 93_92_0412 · 1992-12-04
MR JUSTICE WOOD (PRESIDENT): This is a Preliminary Hearing by way of appeal from a decision of an Industrial Tribunal sitting at Norwich under the Chairmanship of Mr Ash who on the 8th November 1991 held that as Mr Heeley was not employed he could not succeed in his complaint to the Tribunal that he had been unfairly dismissed.This was one of those cases which are often difficult, where it is necessary to decide whether an Applicant is in employment as a servant or whether he is self-employed. Although Mr Heeley had represented himself, he had taken advice from Solicitors who had prepared written submissions on his behalf. Those responsible for those written submissions were complimented by the Industrial Tribunal who clearly found them most helpful. The issues therefore were clear for a decision by the Tribunal.The facts were not seriously at issue. Mr Heeley first worked for the Respondents Trell Contractors (Watton) Ltd in 1989 and finished working for them on the 19th April 1991. He was a ground worker and previously worked for other large contractors. He just happened to have come across work available and had joined them.Mr Heeley was one of those who possessed what is called a 715 certificate issued by the Inland Revenue. Some years ago this general arrangement was referred to as "the lump", in other words the Revenue agree that the payer of the remuneration is not bound by the PAYE regulations and therefore the recipient of the money is himself responsible for accounting to the Inland Revenue for his tax. The payment is made gross. That has advantages in that it may be that the individual will be able to set off expenses and other matters because he is self-employed. It is clear that Mr Heeley employed an accountant and that although no accounts were produced, he did, in fact, deduct his expenses in his preparation of his tax return.After examining the facts in detail the Tribunal posed the various tests in law. Their approach to the law, in our judgment, is impeccable. They then look to see how to carry out the balancing exercise between those factors that point one way and those factors that point another. In paragraph 10 they list some of them in this way, they say:
"The factors inconsistent with a contract of service in this case have been set out by us above but, at the expense of repetition we indicate them: Payment in gross; the existence of a 715 certificate on the basis that the applicant was a sub-contractor the employment by the applicant of an accountant to prepare his business accounts; the fact that he provided his own transport and fuel, was not paid expenses and set those expenses including depreciation on his vehicle against tax liability; the knowledge by the applicant and the respondents of the advantages of being self-employed. Further we indicate that `true' employees of the respondents were given contracts of employment and treated under the usual PAYE conditions.
We are satisfied that the matters listed above are more than sufficient to make this a border-line case between self-employment and being an employee. In such circumstances it is incumbent upon us to consider an extension to the law in circumstances where the parties chose to attach a particular label to the relationship. In such circumstances an express declaration by the parties may be conclusive."and they refer to Massey v. Crown Life Insurance Company [1978] 2 AER 576. They continue:It seems to us in this case, and we are satisfied as a fact that the various incidence of self-employment, or to put it another way, the factors inconsistent with the existence of a contract of service, are sufficient to outweigh the first two tests in Ready Mixed Concrete and, further, re-enforced by the obvious intention of the parties to label the contract as that of a contract for services and not a contract of service."Having found, as we do, that the direction in law was not open to criticism, those findings of facts are clear, their reasoning in the application of the law is clear and we are grateful to the learned Chairman for the able and succinct way in which this judgment has been constructed and phrased.There is no possible criticism in law and the appeal is dismissed.