Whittaker v Sherdley Hall Garages Ltd [1994] UKEAT 569_93_2403

EAT

Whittaker v Sherdley Hall Garages Ltd

[1994] UKEAT 569_93_2403 · 1994-03-24

JUDGE PEPPITT QC :

This is the preliminary hearing of an appeal from a decision of the Liverpool Industrial Tribunal made on 14 May 1993. By its decision the Tribunal held unanimously on a preliminary hearing that the Appellant was not employed under a contract of service but was a trainee. Accordingly, the Tribunal found, it did not have jurisdiction to entertain the Appellant's claim for unfair dismissal.

The Appellant, at the time of the events complained of, was in the third year of a scheme operated by the Road Transport Industry Training Board under which young men and women were enabled to undergo periods of training in areas connected with the motor industry. In the Appellant's case he was being trained as a panel beater. He spent his time undergoing training at the garage premises operated by the Respondents, Sherdley Hall Garage Ltd. He received a weekly payment of £85 from the Respondents, part of which was reimbursed to the Respondents by the Road Transport Industry Training Board. The question therefore that the Tribunal had to consider was whether the Appellant's contract was a training contract or whether it was a contract for service.

The question was considered in not dissimilar circumstances by this Tribunal in Daley v Allied Suppliers Ltd

[1983] ICR 90

. In that case the complainant was working for a Company as a trainee under a work experience scheme arranged by the Manpower Services Commission as part of their youth opportunities programme. She was paid weekly by the company who trained her but the whole of the sum so paid was subsequently reimbursed from the Commission. In answer to the question whether, in those circumstances, the complainant's contract was a contract of service or a contract of training. Mr Justice Neill giving the judgment of the Employment Appeal Tribunal adopted with approval the test applied by the Court of Appeal in Wiltshire Police Authority v Wynn

[1980] ICR 649

and in particular a passage from the judgment of Dunn L.J at page 660 which reads:

"Ever since the settlement cases of the 18th and 19th centuries, the common law has held that the court must look at the principal object of the contract in deciding whether or not a contract of service exists. Where the primary object of the contract is teaching or learning, then there is no contract of service."

The Tribunal held that the primary object of this contract was teaching or learning. That finding Mr Beeson, on behalf of the Appellant attacks on the ground that the reality of the situation here was that there were two contracts, one for service and one for training. Though there is no express finding on the subject in the decision, he asks us to use our judicial knowledge and experience to find that it was overwhelmingly probable that the Respondents were paid for such work which in the course of his training the Appellant did, and that in all probability they profited from that work.

In support of his submission for dual contracts, he referred us to a decision of this Tribunal Oliver vJP Malnick & Co

[1983] IRLR 456

. That was a case where the applicant was an articled clerk and in the special circumstances affecting articled clerks, the Tribunal held that in that case the clerk was acting under a dual relationship, that is a training contract with the solicitor to whom he was articled and a contract of employment with the firm for which he worked.

We think that there is no true comparison between the very special, if not unique relationship, between an articled clerk and his principal and the firm for which he works on the one hand, and a young person employed as this Appellant was, on the other. We accept that in the present case the Respondents may have derived some benefit and perhaps even profit from the work which the Appellant did, but that has to be balanced against the expense to which they were put in training him and the time which that training would have taken. There was indeed an express finding in paragraph 4(i) of the decision that the Appellant was always working under instruction whilst at the respondents' premises.

Ultimately, as Mr Beeson realistically accepted, one has to evaluate the Tribunal's finding that the primary purpose of the Appellant's contract was training. Mr Beeson submitted that in the light of the factors to which he drew our attention, that finding was wrong. It is not a finding of a primary fact he argued, in our judgment rightly, but the application of the Tribunal's findings of the primary facts to the test which they were required to apply. Mr Beeson accepted that he could succeed under that submission only if he were able to establish that the Tribunal's application of the primary facts to the test laid down in Daley v Allied Suppliers Ltd was perverse in the sense that no reasonable Tribunal could have reached it.

We have considered that submission with some care. It is not suggested that the Tribunal did otherwise than correctly apply the law which governed the application. There was in our judgment abundant evidence upon which they could rely in reaching the conclusion that they did. In those circumstances, it seems to us, that this appeal must fail and accordingly we dismiss it with thanks for Mr Beeson for the lucidity of his arguments and his common sense approach to the matter which we had to consider.