O'Callaghan v Notting Hill Housing Trust [1993] UKEAT 516_92_1805

EAT
O'Callaghan v Notting Hill Housing Trust
[1993] UKEAT 516_92_1805 · 1993-05-18
MR JUSTICE WOOD (PRESIDENT): This is an appeal by way of a preliminary hearing, by Miss O'Callaghan from a decision of an Industrial Tribunal sitting at London (South) under the Chairmanship of Mr Pringle, who after four days of evidence in the Autumn of 1991 rejected her application for a redundancy payment finding that she was a self-employed person as from a date of 3rd February 1989 and also rejecting her claim for a written statement of her terms of employment. The Respondents were the Notting Hill Housing Trust.It is only on a point of law that an appellant can appeal to this Tribunal and, indeed, unless there is an error of law we are powerless to help. It is therefore, at a preliminary hearing such as this that we look to see whether there is an arguable point of law which merits the attendance of the Respondents and arguments from both sides. In deference to the careful and full submissions made by Mr Pullen, we propose to give a rather fuller judgment than we might normally have done in circumstances such as this.There are two preliminary points which must be dealt with before dealing with the main substance of the submissions which have been put. The first, a very minor point, is that I pointed out to Mr Pullen before we started the hearing that I covenanted to this particular trust, he raised no objection to my continuing to sit. The second point is this, that part of the grounds on the notice of appeal concern inattention alleged against Members of the Tribunal.First, on day one, the inattention is alleged against one of the wing members it was thought had either "nodded off", anyhow strayed in her attention, to what was taking place. No point was taken about that at the time. It could, and should have been taken if it was going to be, as it is not a case where the parties were not represented and Mr Pullen, I think, accepts that he should have done so. We take no point on that matter.The second matter is that during submissions on the third day the learned Chairman failed to attend adequately and was thought to be "nodding off" or anyhow not attending sufficiently. The remedy for any advocate, and as we understand it Mr Pullen was addressing him, is to pause or to speak up and simply wait or drop his book, to which he might be referring, none of those matters took place and Mr Pullen, quite rightly and responsibly, in the conduct of this appeal lays no particular stress on that matter in the light of his failure to take the point at the time. However, he uses it only by submitting that when one reads the decision, anxiety is caused to a reasoning person in that some of the matters which should have been taken into account are not, apparently, on the face of the decision taken into account. The substance of the point of law which Mr Pullen puts is that the Tribunal misdirected itself in law or reached a decision which was perverse.The background to this matter is that Miss O'Callaghan is an Architect by profession. She had worked as an Architectural Assistant for the Respondents from September 1975 until Friday 3rd February 1989. She terminated her employment by notice. The issue is really, whether thereafter she continued in employment, or a fresh relationship of employment existed, because there came a time in the December 1990 when the Architectural Department was to be closed down, therefore, those working in that Department were to be made redundant and there was a very generous redundancy scheme put into place. Miss O'Callaghan felt that she ought to be allowed to take part in that scheme. The Tribunal, it is right, took a somewhat cynical view about that. We are told by Mr Pullen, that Miss O'Callaghan felt that their view was offensive because the Tribunal thought that she wanted to "have her cake and eat it" as Mr Pullen put it. They expressed their view in paragraph 18:
"The applicant leaves us in no doubt that she was determined to have the best of both worlds and when she became aware that a very substantial package would be available on redundancy she sought to be an employee rather than self-employed."
That being the issue, the Tribunal saw and heard a number of witnesses; they heard the Applicant; they heard the Chief Architect who was Mr Reed; they heard a Miss Weil and a Miss Worsford, the Personnel Officer.The criticism made by Mr Pullen is that the Tribunal failed to carry out the balancing exercise which the law demands. He submitted that they should have pointed themselves to the factors which indicated employment; pointed themselves to the factors which indicated self-employment, weighed them up and then reached a decision pointing to those factors which they considered to be dominant. I hope that reflects the submission that he was making to us.One must bear in mind a number of things when approaching a decision of an Industrial Tribunal. First, that it is not to be analysed as the judgment of a High Court Judge. The comments of Lord Justice Bingham, as he then was, in Meek v. City of Birmingham District Council [1987] IRLR 250 are pertinent to that aspect. The broad facts, the broad reasoning, are essential so that the parties can understand why they have won, or why they have lost. The second comment which has been made Lord Russell of Kilowen in the Court of Appeal as Lord Justice is that one must not dissect a decision and go through it with a fine tooth comb, it must be looked at it in the round. We therefore obey that guidance and look at this decision in that way. The decision stretches over some 6 1 / 2 pages and recites a number of facts.It is correct that the Tribunal do not give themselves a lengthy direction in law but they do say, at paragraph 16:
"It falls to us now to consider whether the label attached to her worked on behalf of the respondents should have the label employed or self-employed . . ."
and then they go on to say that they have had careful submissions from Counsel.Mr Pullen has been good enough to show us the written submissions which he made to the Industrial Tribunal and about which the Tribunal were most laudatory, as they were to the submissions of his opponent. His submissions cover some 3 1 / 2 pages, they are detailed, they are clarity itself. He refers to a substantial number of cases including the Ready Mixed Concrete (South East) Ltd v. Minister of Pensions and National Insurance [1968] 1 All ER 732, p.73, and the other well known cases. The tests are variously set out and in particular he must have relied on a passage in the well known case of Young & Woods Ltd v. West [1980] IRLR 201 . Mr Pullen referred us to paragraph 27 of the leading judgment in the Court of Appeal given by Lord Justice Stephenson, the facts are not material for this passage, to which we were helpfully referred. There the learned Lord Justice, in a case which dealt with a similar issue to the one in the present, said this:
"It would, in my judgment, be impossible to regard Mr West - self-employed though he asked to be treated, self-employed though his employers agreed that he should be treated and the Inland Revenue agreed that he should be treated - as a person in business on his own account as Mr Massey, in very different circumstances, was clearly rightly regarded. Unjust as it may seem in this case that Mr West should be able to get away from the bed which he has made, or to eat his cake and still keep it, or to wear two hats according to which one happens to suit him at the time - whatever metaphor is used - nevertheless it is in my judgment the duty of an Industrial Tribunal, once a person goes to it and says, `Though I was self-employed, nevertheless I am an employee entitled to enforce my statutory rights', to see whether the label of self-employed is a true description or a false description by looking beneath it to the reality of the facts, and it must be its duty to decide on all the evidence whether the true legal relationship accords with the label or is contradicted by it."
It seems to us quite likely that in that paragraph 16 to which we have already referred, the learned Chairman in drafting the decision of the Industrial Tribunal, had those words of the learned Lord Justice well to his mind. So that, although they do not direct themselves in extenso, it is quite clear that the Tribunal, through its generous praise of the submissions and the clarity of the submissions made, did have in mind the correct issue in law.However, Mr Pullen goes further, he submits that the duty in law is to balance the various factors and to find them and then to give such weight as is appropriate in reaching their decision. He points out that the various labels used in correspondence vary: employee; out-worker; casual; self-employed; consultants; consultancy services. Sometimes the Applicant describes herself as an employee, sometimes the Respondents refer to her as employee, at other times part-time employee; casual or free-lance and so on. He also points out that there were a substantial number of factors pointing towards employment and some factors, not so numerous, pointing the other way. He submits, therefore, that the Tribunal should have referred to each, or to most of those, and to show the balance that it took.It is quite clear to us that the particular factors, one side and the other, are admirably set out in that written submission of Mr Pullen, extensively set out, and we cannot think that the Tribunal did not have that in their minds and before them when they considered the position. It remains, therefore, to see whether they did have sufficient evidence upon which they could conclude that from the February 1989 Miss O'Callaghan was self-employed or at any event had failed to prove that she was employed, the burden being on her.Anyone looking at this matter will, I fear, have to read the decision of the Tribunal as the facts are detailed. But it seems to us that it is appropriate just to outline some of the factors which appeared to the Tribunal to be important.First of all they make it quite clear that she, it was, who gave the notice and that she intended to become self-employed when she left in the February 1989. Thereafter, she was given a leaving party and a leaving present; she terminated her pension rights; she was thereafter at a fixed rate per hour which was in excess of her salary. She had agreed to do some 25-28 hours a week, she would continue with such hours and at such times as were convenient to her, consistent with her other commitments, and that she should submit time-sheets on a regular basis; also there was a letter from her to the Customs & Excise on the 12th March 1989 saying that she had recently left full-time employment and was seeking to register for VAT. There was correspondence between herself and the Respondents which is referred to in detail. Mr Pullen takes the point that the Housing Associations' Act 1985 under Section 15 prohibits the employment, part-time, by a Housing Association, of someone who had been working for them full-time until after the expiry of 12 months. That matter was before the Tribunal. It was taken into account by them and they decided not to regard two documents which they felt may be illegal as a result, but nevertheless, those two documents we have seen. They point to the use of the word "employee" there are numerous other places where that phrase is used and we cannot think that that discloses an erroneous or a flawed approach by the Industrial Tribunal.However, later in the decision they go to look at certain particular facts which they bore in mind as being important. In paragraph 14 the Tribunal set out there, the hourly basis of pay; no holiday entitlement; pension arrangements terminated; car loan to be repaid. They go on:
"She was entitled to work where and when she pleased within the limits of the project. [That means the projects being run off]. She chose to submit invoices. She could accept or refuse such work as Mr Reed had to offer and could undertake work on her own account for her own clients. She was not subject to the pay scale operated by the respondents.
She had stated she wished `to go it alone' and at no time did she rescind or resile from that position . . ."They indicate that they have looked at the whole of the written submissions. They say:
"we have listened to the evidence of the various witnesses and in particular the Applicant and the Chief Architect."
They also found the Chief Architect to be a convincing sound and reliable witness and relied upon him. Then they refer to the correspondence and say that:
"the bundle of correspondence and notes give us a very clear picture of the whole situation, the arguments of Counsel, so clearly set out in their written submissions, gives us an even clearer picture of the issues involved."
Then they continue and in paragraph 20 and reach their conclusion thus:
". . . despite all these ramifications we fell that whilst the applicant would now appear to want the best of both worlds and to seek to say that she is an employee, nevertheless, the clear line running through the correspondence. Indeed the evidence which we have had before us leaves us in no doubt that the applicant wished to work as a self-employed person and continued to do so and intended to do so during the period from 6 February 1989 until the respondents had no further need for her services."
That, after the directions in law and the application to the relevant factors seems to us to be a finding of fact; there is no suggestion that there was not sufficient evidence to found those facts, it was undoubtedly well founded. We have had regard to Mr Pullen's able submissions but we are quite unable to say in this case that there is any error of law and although, perhaps, he will forgive me for chiding him slightly that he was arguing the full case, nevertheless I hope he will accept that we have now regarded this, virtually, as the full case and given a judgment of some length at this stage.This appeal must be dismissed.