Carling v Testers [1995] UKEAT 521_95_0911

EAT
Carling v Testers
[1995] UKEAT 521_95_0911 · 1995-11-09

JUDGE HULL QC :

In this case Mrs Carling was employed by a firm of solicitors. There was a change in the firm in 1985 when Mr Chidwick set up under a new name. He was a single principal then. Mrs Carling entered into an arrangement. We have no grounds whatever for suggesting that it was not done in good faith. The idea was that she was to be self-employed, as she puts it, for tax and national insurance purposes and a trade name was given to her. An accountant's opinion was obtained that all was in order and that this should satisfy the Revenue and she then operated for the purposes of tax and national insurance as a self-employed person and paid tax and national insurance on that basis. That continued for some time, indeed, something like eight years. In December 1983 there was a change. She began to work at home shortly thereafter. In January 1994 she began to work only three days a week at the office and two days at home and in June 1994 she started to work at home five days a week, which clearly would reinforce the impression, on the face of it, that she was self-employed rather than employed by the solicitor.She, in due course, complained to the Industrial Tribunal that she had been unfairly dismissed and claimed a redundancy payment and, of course, she had to show that she was an employed person at the material time.The Tribunal considered the facts. They set out the matters to which I have referred, much more fully. They set out the tests for employment and self-employment and they put it like this in their conclusion:
"We conclude on balance therefore, that even if the applicant had in reality been an employee until December 1993, her status changed in that from June 1994 she was undoubtedly in business on her own account and was therefore self-employed at the time of the termination of the relationship."
As Mrs Carling points out in her appeal, that meant that between December 1993 and June 1994 there is no clear finding by the Industrial Tribunal.Had they found that she had, in truth, been employed, it would have been their duty to go on and consider whether they could give her any relief whatever and the plain fact would have been that they could not because it would mean that throughout the time that she was now asserting that she was employed, she had been telling the Revenue every year in her returns and, of course, the Department of Social Security, whenever she had any dealings with them, that she was self-employed, which was simply untrue. None could be in a better position to advise on that than the solicitor and the accountant who had advised her. It was, in truth, an impossible contention because it meant that Mrs Carling was asserting her own wrong. Although Mrs Carling does not realize that and speaks of being self-employed merely for tax and national insurance purposes, there is, to use the colloquialism, no such animal. Either you are employed or you are self-employed. There was no possible way, it seems to us, in which Mrs Carling could have succeeded in her contentions. The Industrial Tribunal dealt with only part of it. They found eventually she was self-employed. They should have found that unless she had been deceiving the Revenue, she was self-employed throughout because that is what she and her "employer" had said throughout.The appeal to us is, I am afraid, quite without any arguable point of law and we have to say that it, therefore, cannot proceed with all the expense and delay which would be involved in a full hearing. It is our duty to dismiss it now and we so order.