Caledonian Mining Co Ltd v Bishop [1993] UKEAT 887_92_2502

EAT
Caledonian Mining Co Ltd v Bishop
[1993] UKEAT 887_92_2502 · 1993-02-25

JUDGE HARGROVE OBE QC :

Mr Bishop was employed by the Appellants on 20 October 1989. When first employed it appears it was suggested that he should take part in the Cambridge University's "Company Teaching Scheme". By this Scheme the University employed and seconded certain individuals to companies in industry. It is fair to say that the tenor of the documents upon which that Scheme appears to be based were primarily those concerning training rather than employment.Mr Bishop was given a two year contract with the Scheme which ran from 1 December 1989 to 30 November 1991. This placement was not entirely unrelated to the fact that Dr Appleton of the University was also a non-executive director of the Appellant Company. The position in relation to the conduct of the Scheme is that there were as I understand the position today, five visits to the University but in addition there were quarterly meetings which were designed to inform those running the Scheme of the progress of the associates as those in taking part in the Scheme were called. In passing a number of the projects, visits and courses mentioned in those minutes were of a nature which one would associate with ordinary employment in the industry, others which were of a more academic and training nature did not come to fruition.During this two year period Mr Bishop received his emoluments from two sources. The first was from the Scheme and the second was from the Appellants. The Appellants were in short topping-up his payments under the Scheme so that he commenced with the Scheme on a salary of some £15,500. We have been told - and for the purposes of this appeal, we accept - that there were two pay packets so to speak, one from each of the two entities who were supporting him. The difficulty which arose in this matter was that at the end of the Scheme Mr Bishop became employed, and there is no contest about this, for a period of some months and was then dismissed. Mr Bishop contended that he had been employed throughout from the very start in October 1989 right through the period, which I am going to call the Scheme Period, until his final dismissal.The Appellants maintained that the necessary period of two years' continuous service was broken by the two years when the Scheme had been operative. The Tribunal dealt with that in paragraphs 5 and 6 of an admirably succinct and well organised decision when they say this:
"We have been asked to decide whether or not Mr Bishop was an employee of the respondent company. We have considered control, organisation, economic and multiple tests and by any of these we find that he was clearly an employee of Caledonian. He was at all times under their direction and, although a large proportion of his salary was paid by Cambridge University, he received an additional amount, which started at £377.75 per month, from the respondents. By any common sense test, he was an employee of the respondent company.
We have also considered in depth whether the clear existence of a contract of employment with Cambridge University precludes a contract of employment with the respondents. We believe that need not be the case. Indeed, this is a situation in which we find the existence of parallel contracts of employment. Mr Bishop worked from 20 0ctober 1989 for the respondent company. He was taxed and deductions (Schedule E) were made by the Company. [I pause there to point out that it also appears that there is taxation deducted by Cambridge University]. In every respect he was treated as an employee. They paid him for his services."The Appellants today take what is a short but important point. They say the Tribunal has not addressed the first question, namely - Was his initial presence in the Company organisation a presence due to training, or was it due to employment? If it was training then it is not satisfactory from the point of view of continuity of service.One has very great sympathy with the Tribunal here. We are told that at the Tribunal apparently none of the relevant authorities were cited. We have had the advantage of looking at Capon v Rees [1980] ICR 553 and Daley v Allied Suppliers [1983] ICR 90. Those two cases alone had they been cited, would have directed the minds of the Tribunal towards this most relevant area. There is no indication, hard though we have looked for it, that the Tribunal has considered either of those cases or in some ways the more analogous case of Wiltshire Police Authority v Wynn [1980] 649. Whether they would have come to the same conclusion had they done so we cannot say, but we are reluctantly driven to the conclusion that there is on the face of this decision an omission which is of a nature which requires us to send this matter back to a tribunal differently constituted for this issue to be re-tried and the proper test applied to the situation.We should emphasise that we are not saying that when all the factors and features, some of which we have heard about today and which were not before the original Tribunal, have come to be evaluated, there may not be a great deal in what Mr Bishop says about the situation which existed. What we do say here is that upon this Tribunal's findings there is no adequate investigation of the primary issue of law. Accordingly the matter will be remitted to a tribunal, as I have indicated, differently constituted.