B L Saville Builders v Youens [1993] UKEAT 922_92_0807

EAT
B L Saville Builders v Youens
[1993] UKEAT 922_92_0807 · 1993-07-08
MR JUSTICE KNOX: This is an appeal by B L Saville Builders from a unanimous decision of the Industrial Tribunal at Bury St Edmunds on the 13th October 1992, sent to the parties on 19th November 1992 to the effect that the Applicant before the Industrial Tribunal, a Mr Youens, was entitled to claim a redundancy payment from the Respondents, as for this purpose, he was an employee of the Respondents.As appears from the form that that decision takes this was a preliminary issue on the question that frequently vexes industrial tribunals: is the contract between the parties a contract of service, in which case it falls within the ambit of the Employment Protection (Consolidation) Act 1978 , or is it a contract for services, in which case equally clearly, it falls outside that ambit. The provisions in the 1978 Act on that score are not a matter of any doubt and need not be referred to.The Industrial Tribunal in this case set out its findings of fact prefacing them by saying:

"There is little, if any, dispute as to the facts"

and they found that the Respondent (I will call him at the risk of begging the question in the case "the employer") was in business as a builder and decorator. Mr Youens worked for him in 1984 and at that time the employer had about a dozen people working for him. About half of them were "on the books", that is to say employees. The other half were sub-contractors or self-employed. When Mr Youens finished working for the employer there were only four left, three of those were employees on the books and the fourth was Mr Youens himself.They then set out a variety of factors which tended to show, in one way or another, that Mr Youens was either an employee or a person employed on a contract for services. In favour of the proposition that he was a person engaged on a self-employed basis and not an employee, were the facts that he was paid gross; paid no Income Tax by deduction or National Insurance by deduction; was not entitled to paid holidays and would not have been paid sick pay. On the other side of the scales there were the facts that he worked solely for the employer, except on Saturday mornings when he free to work elsewhere; his rate of pay was fixed irrespective of the work on which he was engaged; he did not have to agree payment with the employer for each job; he worked for the employer for the whole period from 1984 to 7th May 1992; he did not provide his own transport, the employer provided items of heavier equipment but as against that, Mr Youens had his own tools, and not surprisingly if he broke, or lost, the employers' tools he had to replace them. There then is a sentence which reads:

"The work he did he did for himself."

and it is followed by the sentence:
"He was not in a position to engage a substitute if he was unable to work or when he was on holiday."
and, as one of the Members of this Tribunal observed during the course of the hearing, those two sentences do seem to go together rather than contain a separate assessment in that short cryptic phrase "The work he did he did for himself" as an analysis of the end result of what the situation was as between the two parties.There is also recorded in the Industrial Tribunal's decision that Mr Youens had applied for a 714 certificate which he had held from before 1984 when he started working for the employer and there is a quotation taken from that form, by the Industrial Tribunal, which states that it should be used:

"if you are in business on your own"

so that the deduction is drawn that he must have certified that he was carrying on a business on his own.Then the Industrial Tribunal looked at relevant authorities, notably Young & Woods Ltd v. West [1980] IRLR 201 and Cooke J's decision in Market Investigations Ltd v. Minister of Social Security [1969] 2QB 173 and they stated their conclusion in the following passage in paragraph 9 of their decision:
"In this case we have decided unanimously that the reality of the situation was that, in spite of the 714 certificate, and in spite of the fact that the applicant was treated as self employed by the Revenue, he was in fact an employee from the point of view of the employment protection legislation which of course, in an Industrial Tribunal, is the law which we have to do our best to apply."
It was submitted to us, in support of the appeal, that that placed insufficient emphasis on the importance of the 714 certificate and that the Industrial Tribunal had been over persuaded by the references to labels being false labels in Young & Woods Ltd v. West which the Industrial Tribunal was referred to, and thus led in error to attach inadequate importance to the 714 certificate which it was suggested should have been treated as enough to tip the scales because the several facts in the earlier paragraph from which I have read extracts, left the matter in a state of flux and of some doubt. The difficulty that we feel in relation to that is that one has to have regard to what the powers of this Tribunal are, and indeed any Tribunal, that is limited, as this Tribunal is, to questions or issues of law. That is a matter which was dealt with in a manner which is binding on us by the Court of Appeal in O'Kelly v. Trusthouse Forte plc [1983] IRLR 369 in which both Sir John Donaldson, then Master of the Rolls and Fox LJ, dealt with the difficult question involved in this type of problem of identifying into which category a relationship falls, particularly in the construction industry perhaps, but it applies generally, namely does it fall into the category of contract for services or a contract of service. Sir John Donaldson at paragraph 82, page 382 said this:
"The test to be applied in identifying whether a contract is one of employment or for services is a pure question of law and so is its application to the facts. But it is for the tribunal of fact not only to find those facts but to assess them qualitatively and within limits, which are indefinable in the abstract, those findings, and that assessment will dictate the correct legal answer. In the familiar phrase `it is all a question of fact and degree'.
It is only if the weight given to a particular factor shows a self-misdirection in law that an appellate court with a limited jurisdiction can interfere. It is difficult to demonstrate such a misdirection and, to the extent that it is not done, the issue is one of fact."Similarly, Fox LJ said at page 381, paragraph 66:
"The precise quality to be attributed to various individual facts is so much a matter of degree that it is unrealistic to regard the issue as attracting a clear `legal' answer."
and a little later he said of that particular case which, on the facts, has no great resemblance to the present one:
"In the present case the Industrial Tribunal in their full and careful reasons list nine circumstances which are consistent with the existence of a contract of employment, four which are not inconsistent with it and five which are inconsistent with it. It seems to me that the case was indeed one where the answer, in the end, was a matter of degree and, therefore, of fact."
and then he goes off into the particular facts of that particular case.In our view the appeal before us is indeed in that category of cases and we do not think that it would be legitimate for this Tribunal to pick out, say, the considerations in relation to form 714 as being, in themselves, something which should have been treated as a matter of law as determinative of the issue that was before the Industrial Tribunal.Mr Winthrop who appeared before us on behalf of the Appellant accepted, and clearly rightly, that the considerations regarding the 714 contract could not by themselves be determinative, so that one did not have to look elsewhere at all the other facts. It is indeed only one of the numerous factors that should be taken into account.We are unpersuaded that the Industrial Tribunal went wrong in law, and whether or not we would have come to the same conclusion is neither here nor there. The task of evaluating the various factors was one which the legislature on the view of the law which the Court of Appeal takes in O'Kelly v. Trusthouse Forte plc is one that is entrusted to the Industrial Tribunal and unless one can show a clear self misdirection, to use Sir John Donaldson's expression, we have no power to interfere. For those reasons we do not allow this appeal to go forward. It should be dismissed at this stage.