Tamworth Electrical Wholesale Supplies Ltd v Magee [1997] UKEAT 751_97_0810

EAT

Tamworth Electrical Wholesale Supplies Ltd v Magee

[1997] UKEAT 751_97_0810 · 1997-10-08

MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Tamworth Electrical Wholesale Supplies Ltd wish to make against a decision of an Industrial Tribunal held at Birmingham on 15 April 1997. That decision is contained in writing and was sent to the parties on 20 August 1997.

The background facts we take from the decision of the Industrial Tribunal. By their decision they held that the Applicant, Mr Magee, had been employed for two years or more and therefore had the relevant qualifying period of service to bring an application of unfair dismissal. They judged that there had been an unfair dismissal and ordered the Respondent Company, the Appellants, to pay to the Applicant compensation in the sum of £2,458.78.

The Applicant at the hearing represented himself. In his IT1 he had contended that he had started work on 14 February 1994 on a training programme, but that he was paid an extra amount on top of the basic training wage by the Appellants and was paid something when he was on holiday, whilst he was still on a training programme, and he concluded his IT1 with the words, "Thus I think I was treated like a full-time employee". It was his assertion therefore, that he had been employed by the Company from 14 February 1994 until the effective date of termination of his employment in October 1996.

It was the employer's case that he had been employed by them only since April 1995, and that for the preceding year he had simply been working as a placement trainee under a training scheme and not employed by them and accordingly, he did not have the requisite two years of continuous service. In their IT3 the employer said:

"Mr Magee had been employed by me as a full time employee since 10th April 1995. Prior to this he was on a Training Scheme organised through Link Training from 14th February 1994 to 8th April 1995. For about the last 7 months of the scheme he was paid additional expenses to his training allowance plus travelling and meal expenses when he was working at the Erdington branch of the company, as I considered the training allowance a meagre amount once he was fairly competent at the job. He was paid for any holiday taken in accordance with instruction from the training establishment, ie Link."

In other words, in their IT3 as we understand it, the employers were contending that for approximately seven months prior to April 1995 they had been paying monies to Mr Magee beyond what the training placement people were paying to him. That would take one back to about September 1994 and accordingly, on the employer's own case, if the payment of the extra amounts caused there to be an employment relationship between the two parties, then Mr Magee had the relevant qualifying period of service.

The Industrial Tribunal considered that question with care and they found, as a fact, in paragraph 3.2, that after the first week when everything was dealt with satisfactorily, the Applicant worked and was for all practical purposes an employee of the Respondents. They determined his hours of work, paid him his wages and required him later on to work on a Saturday and paid him additional sums for this work.

We are satisfied that if an employer pays additional money to a trainee who is working under a training scheme, the payment must have been pursuant to some contractual arrangement, oral or written, and that the Industrial Tribunal are entitled to conclude in those circumstances that that contract amounts to a contract of employment.

We do not need to consider whether a trainee, who is working under a training scheme and has been allocated to an employer, is ipso facto in that person's employment because, as we see it on the facts, it was plain and agreed between the parties that for at least two years Mr Magee had been receiving payments from his employers and during that time therefore, it seems to us, was probably under a contract of employment during the whole of that two year period. On that basis therefore, it seems to us that the Industrial Tribunal were quite entitled to conclude that there was the requisite continuous period of employment on the facts of the case before them.

Accordingly, the only point which the employers wish to raise by way of an appeal relates to the qualifying period of service. In our view there is no arguable point of law which arises on the facts of this case and therefore this appeal will be dismissed.