O’Shea Construction Ltd v Bassi [1998] UKEAT 1366_97_2105

EAT

O’Shea Construction Ltd v Bassi

[1998] UKEAT 1366_97_2105 · 1998-05-07

MR JUSTICE LINDSAY : Mr Bassi, there described as "the Carrier", made a contract with Pioneer Concrete (UK) Ltd, a company which supplies ready mixed concrete by vehicles driven to building sites. When, in the course of work, Mr Bassi, with a vehicle which he warranted to Pioneer he owned, visited a site at which C.J. O'Shea Construction Ltd ("O'Shea") were working, he was, he says, abused in racial terms by O'Shea's banksman, a man whose task it was to indicate when and where and in what quantities and how the concrete in the vehicle driven by Mr Bassi was to be unloaded. Mr Bassi later learned that he had been banned from the site by O'Shea. He asserts racial discrimination against O'Shea.

In the course of an IT3 which challenged the facts alleged by Mr Bassi (many of which facts, we emphasise, have not yet been tested) O'Shea alleged, as was incontrovertible, that Mr Bassi was not its employee. It asked for a pre-hearing review. O'Shea had failed to notice, it would seem, that its employment of Mr Bassi was not a necessary prerequisite of a complaint of racial discrimination against it.

Quite what question was notified to the parties as being the question to be dealt with before the Industrial Tribunal does not appear from the material we have but on the 8th August and 17th October 1997 the Industrial Tribunal at London (North) under the Chairmanship of Mr J.P. Coman dealt, as a preliminary issue, with the determination of an assertion by O'Shea. It was that as Mr Bassi could not bring himself within the terms of Section 7 of the Race Relations Act 1976 as a contract worker who worked for it at the time of the acts complained of then, in consequence, the Tribunal had no jurisdiction to hear Mr Bassi's complaint.

The Industrial Tribunal sent its decision and its extended reasons therefor to the parties on the 19th November 1997. The decision was as follows:

" The unanimous decision of the Tribunal is that the Tribunal has jurisdiction to entertain the Applicant's complaint against the Respondent of unlawful discrimination contrary to the Race Relations Act 1976. A full hearing of that complaint will be held on a date to be notified to the parties in due course."

Mr Bassi alone gave oral evidence to the Tribunal, although we have no record of what it consisted; we do not have any Chairman's Notes and the decision itself is silent on the subject. The Tribunal did, however, have some documents before it. Unhappily, though, it has transpired, as we shall explain, that the documentation it had before it was materially incomplete. We shall revert to the documents later but first turn to the provisions of Section 7 of the 1976 Act.

The section reads as follows:

"7. (1) This section applies to any work for a person ("the principal") which is available for doing by individuals ("contract workers") who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal.

(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a contract worker -

(a) in the terms on which he allows him to do that work; or

(b) by not allowing him to do it or continue to do it; or

(c) in the way he affords him access to any benefits, facilities or services or by refusing or deliberately omitting to afford him access to them; or

(d) by subjecting him to any other detriment."

Although we mentioned to the parties in the course of the appeal before us the possibility that we might be might be assisted by a sight of Parliamentary material relating to Section 7 and the possibility, too, that under the doctrine of Pepper -v- Hart

[1993] AC p. 593

we might be entitled to take it into consideration in construing Section 7, neither side took that matter further. Accordingly we have not seen and, of course, have therefore not had in mind, any such material.

It will have been seen from our citation of Section 7 that in order to be a "contract worker" the individual concerned must not be employed by "the principal" but must be employed "by another person". That double reference to employment requires one to refer to section 78 (1) of the Act which provides, unless the context otherwise requires, that:-

" 'employment' means employment under a contract of service or, of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly."

That purports to be an exhaustive rather than an inclusive definition, subject to the context requiring otherwise.

Nowhere in their extended reasons does the Tribunal describe Mr Bassi as having not been employed by O'Shea under a contract of service or as having been employed under such a contract by Pioneer. The Tribunal did, however, find Mr Bassi "had entered into a contract of employment, as an independent contractor" with Pioneer and that he was employed within the meaning of Section 78 (1) by a person other than O'Shea, namely Pioneer. Mr Buckley (who did not appear below) argues, on behalf of the Appellant, O'Shea, that it must have been that the Tribunal held that Mr Bassi was employed not under a contract of service but under a contract "personally to execute any work or labour" by Pioneer and not by O'Shea. It would have been better had the Tribunal expressly so stated but we are content to proceed on the basis which Mr Buckley has invited us to adopt. This leads us to the first of Mr Buckley's major points: could any Tribunal properly directing itself have concluded that Mr Bassi was employed by Pioneer under a contract " personally to execute any works or labour"?

At this point, unfortunately, we encounter the first of the deficiencies in the documentation to which we earlier referred. There had been no full discovery between O'Shea and Mr Bassi before the hearing and, of course, any contract between Mr Bassi and Pioneer would not be a document one might expect O'Shea to be familiar with. Mr Bassi laid two pages of a written contract before the Tribunal upon the footing, presumably, (although it does not name him and is not signed by him) that it was the basis on which he was engaged (to use a neutral word) by Pioneer. Although the terms of those two pages, if carefully read, themselves suggest that there were parts of the engagement other than those found in those two pages, there is no indication in their reasoning that the Tribunal was so advised or so realised nor that either side's representatives before the Tribunal so realised. In fact (and assuming, despite, again, there being no reference in it to his name and no appearance of his signature upon it, that the material now produced by his side is the relevant contract) there were a further 19 pages of contract beyond the two which the Tribunal were shown. Moreover, the Tribunal was not shown the fly-sheet headed "Agreement for carriage". To add to the deficiencies, the Newham Council for Racial Equality acting for Mr Bassi failed to supply this fuller form of contract to the Appellant's solicitors until shortly before the hearing before us. Having seen this fuller form, Mr Buckley amplified an argument that he was, in any event, going to address to us, namely that having regard of the terms of contract no Tribunal could have concluded that it was a contract under which Mr Bassi was "personally" to execute any works or labour. He makes the same case, too, on the limited material which the Industrial Tribunal did have before it.

Mr Buckley points to the contract describing Mr Bassi as an independent contractor and as a carrier. Clause 4 (2), which was before the Tribunal, provides:-

"The carrier is an independent contractor and nothing in this contract shall be construed as constituting him an employee of [Pioneer] under a contract of service."

Clause 4 (4), again a provision put before the Tribunal, provides:-

"The carrier hereby acknowledges that he has no right to assign, transfer or charge this contract or any of his rights under it to any other person, firm or company and agrees not to do so without the specific prior consent in writing of the Board of Directors of [Pioneer]."

Amongst the many clauses unseen by the Tribunal are provisions, for example, that "the Carrier" - meaning here Mr Bassi but not a term enlarged to include anyone but he - might use a vehicle other than the vehicle specified in the contract, that the Carrier had to indemnify Pioneer against liability consequent upon the acts or omissions of "any substitute driver", that the Carrier had himself to pay the substitute driver and could expect Pioneer to effect a policy of insurance which covered some liability for substitute drivers. If Mr Bassi failed to operate the vehicle and its concrete mixer within the terms of the contract then Pioneer could itself engage a substitute driver, pay him or her and recover the sum from Mr Bassi. As to substitute drivers more generally, the fuller form of contract now before us provides:-

"SUBSTITUTE DRIVERS

(1) The Carrier may with the specific prior written consent of the company (which consent may be withheld in the absolute discretion of the company) engage a substitute driver. The company may at any time and and (sic) forthwith withdraw any such consent once given as it seems fit and for this purpose the oral instruction to the Carrier of a properly authorised officer, employee or agent of [Pioneer] shall suffice;"

Mr Buckley also draws attention to a letter of the 4th August 1997 written to O'Shea's solicitors by Pioneer. On the 12th January 1998 a copy of the 4th August letter was apparently sent to Newham CRE by O'Shea's solicitors with a letter which described it as having been before the Industrial Tribunal. That letter of the 4th August 1997 includes a paragraph, from the legal department of the Pioneer Group, which says:-

"I can confirm that Mr Bassi is contracted to Pioneer Willment Concrete Ltd to carry ready-mixed concrete for that company under the terms of a contract which, primarily, requires him to carry out the service himself but does permit him to engage others to do so when he so wishes."

Here, though, further deficiencies emerge. Although O'Shea's solicitors clearly stated to Newham CRE that the 4th August 1997 letter had been before the Tribunal and although, in the interval of more than three months between the 12th January 1998 and the day before the hearing before us, the CRE failed to disabuse O'Shea's solicitors on the subject, it transpires, from enquiries as to which we are indebted to steps taken by our learned Associate, Mr Mendham, during the hearing, that the letter of the 4th August, despite the Mr Buckley's instructions that it had been laid before the Tribunal, was not in the Tribunal's list of exhibits nor in their file relating to this case. The Tribunal makes no mention of it in its reasoning and we believe we have to proceed on the basis that the Tribunal did not see it. However, even without it, the fuller contract could have been urged to have made an arguable case that, properly regarded, Mr Bassi had no contract "personally to execute any work or labour" and hence that Section 78 (1) was not satisfied and, that being so, that he could not be a "contract worker" within Section 7 (1) and hence, in turn, that O'Shea's discrimination (if on the facts as later investigated it shall transpire there was any) was not unlawful.

Miss Harjit Grewal (who also did not appear below and who was only recently instructed for Mr Bassi) argues, against that, that the contract with Pioneer obliges Mr Bassi "to provide his exclusive services". She points to the provision against assignments (although it is notable that it precludes Mr Bassi's assignment of the benefit of the contract and not, as would have been more relevant, its burden). She argues, too, that unless and until the "specific prior written consent" referred to in the clause headed "Substitute Drivers" was given (and there was no evidence that it ever had been) then the ability of Mr Bassi to engage a substitute driver did not yet exist and the primary obligation, that he should drive, remained the only the permissible way of performing the contract. The letter of the 4th August 1997 was, she averred, not an indication of a general waiver as to drivers by Pioneer permitting Mr Bassi "to engage others to do so when he so wishes" but was no more than a mistaken construction of their contract by Pioneer's legal department. But, ahead of those arguments, Miss Grewal argues that the point under discussion - be it called "the Section 78 (1) point" or the "Substitute Drivers point" - was not taken below and cannot be taken now (although she does not, we apprehend, say that if we were able to consider the point we would not be entitled to pay regard to the full form of contract which, hopelessly late, her instructing solicitors have eventually made available to O'Shea's solicitors).

With some unease on our part, given the deficiencies which we have described, we accede to Miss Grewal's argument that Mr Buckley is here raising a point not taken before the Tribunal and moreover one as to which necessary facts are not found. There is no hint in O'Shea's IT3 that this point was to be raised and no hint in the Tribunal's reasoning that it was. We cannot conclude merely from the fact that the Tribunal held Section 78 (1) to be satisfied that it had been argued that it had not been, still less could we conclude from that that the Substitute Drivers point had been an argument which the Tribunal heard. Further, even if that point had been raised, we cannot conclude that on the material before it the Tribunal could not properly have held that Mr Bassi was, at the time of the acts complained of, contracted personally to execute any work or labour. The 4th August letter was not, it now seems, before the Tribunal; no written or other consent that he could use a substitute driver was before the Tribunal and he gave oral evidence and we know not what he said. In the circumstances we cannot even be sure that the references, not themselves necessarily conclusive on the point, to Mr Bassi being an independent contractor and which the Tribunal saw in the only two pages of the contract put before it were not explained or overborne by Mr Bassi's oral evidence. If the only possible conclusion to which the Industrial Tribunal could properly have come on the material before it had been that Mr Bassi was not contracted personally to execute any work or labour a different view of Mr Buckley's argument might, perhaps, have been open to us but we do not see how we could so conclude without at least knowing what Mr Bassi had said in evidence. However, rather than us speculating further on that, the more appropriate course is, in our view, for us to rule against O'Shea on this first major point on the ground that it is a point which requires findings of fact before a conclusion can be arrived at and which, being a point not taken below, cannot be taken now.

On a related point Mr Buckley argued that the contract between Pioneer and Mr Bassi did not require Pioneer to give him any work at all. That may be so but we do not see that, of itself, as precluding there being a contract personally to execute work or labour. To take an example deliberately chosen to be distant from the facts before us if, for example, a dry-cleaner, by way of a series of separate contracts, were to agree the terms on which he would send his invisible mending to be done by each of a number of separate individual tailors, he choosing which tailor to use, and with the work in each case being required to be done by no one other than the tailor receiving the work, no one tailor could say that the dry-cleaner was obliged or required to send any job to him or her. However, if mending was, in fact, sent to any tailor under such an arrangement, he or she would surely be able to say, in respect of that work , that he or she was employed to do it under a contract personally to execute the work. We see nothing relevant to our case in this argument.

The second major point which Mr Buckley takes is that here it could not be said that Mr Bassi did or was required to do any work "for" the supposed principal, O'Shea. There are observations on the import of this requirement in the leading case Harrods Ltd -v- Remick [1996] ICR at p. 846 EAT and, on appeal to the Court of Appeal at [1998] 1 All E.R. p. 52 ;

[1998] ICR p. 156

; and

[1997] IRLR p. 583

. It is at first blush not clear from parts of those decisions whether it would suffice for work to have been done "for" A if, with nothing more shown, it had been work for A's benefit - see e.g. [1996] ICR at p. 849 F-G ; [1998] 1 All E.R. at p. 57 G-H and in the antepenultimate line of that page. For our part, we would doubt whether that alone would have sufficed and plainly in the Harrods case there were indications beyond the fact that Harrods benefited from the individuals' work which both the EAT and the Court of Appeal were careful to describe in their reasoning. The matter is perhaps best left as the EAT left it at

[1996] ICR p. 859

"......... as a matter of interpretation, the expression "any work for a person" goes wider than work done by an employee for an employer. The work may be for a person who is not an employer. That is implicit in the purpose and structure of the section. If the section extends beyond work by an employee for an employer, as it clearly does, it is a question of fact and degree in each case whether the particular which is available for doing by the individuals is "work for a person"."

In our case the Tribunal held:-

"Mr Bassi was employed by Pioneer to make deliveries of concrete to [O'Shea]. ................. On arrival at the site Mr Bassi was subject to the instructions of [O'Shea's] employee, in this case the person known as "the Banksman". The latter would control access to the site by Mr Bassi and direct him where to discharge the load of concrete and in what quantity from time-to-time. The banksman was also empowered to send Mr Bassi off the site if the load, for example, was considered unacceptable or on instruction for any other reason."

The contract between Pioneer and O'Shea (which, in the form of printed "Standard Conditions of Sale" on Pioneer's behalf, was before the Tribunal) included that deliveries should be made in accordance with the purchaser's, O'Shea's, instructions. As a matter of fact and degree dependent on the surrounding circumstances in each case the question was very much one for the Tribunal which heard the evidence. We detect no error of law in its conclusion that Mr Bassi was engaged in work "for" O'Shea notwithstanding that it was also work for Pioneer, a fact which, of itself, by no means precluded its being "for" O'Shea - see

[1996] ICR p. 859

C-E EAT and see [1998] 1 All E.R. p. 57 D-E C.A. . It is to be remembered, too, that Mr Bassi gave evidence but that we are not told what he said; it would be incumbent on an Appellant seeking to show that the Tribunal could not have concluded as it did that he had not said anything which could have led the Tribunal to the view of which complaint is made.

Another point which Mr Buckley takes is that Pioneer did not "supply" Mr Bassi as a contract worker under a contract made with O'Shea. The contract between Pioneer and O'Shea was, he says, a contract for the supply of a material - ready-mixed concrete - and not of an individual. The language at Section 7 (1) is awkward in its reference to the supply of "individuals ("contract workers")" when the case is reduced to the possible "supply" of a single individual, but the section has no requirement that the supply of the individual or individuals should, in economic or any other terms, be the primary or sole purpose of the contract under which he or she or they are supplied. In the Harrods case supra in the Court of Appeal there is clear indication that an attempt to divine what is primary and what is secondary, what is a dominant and what is a subordinate obligation of a relevant contract is not justified - [1998] 1 All E.R. p. 59 . Mr Bassi was in the vehicle ready and waiting to unload at the O'Shea site by reason of a contract he had made with Pioneer. Mr Bassi was obliged by his contract with Pioneer to deliver the concrete for Pioneer. O'Shea had procured that a vehicle laden with concrete should arrive at the O'Shea's site with a driver able to unload and deliver it upon O'Shea's instructions and had arranged that by way of a contract with Pioneer. No doubt it was of little concern to O'Shea who the driver was and they would, doubtless, have been quite unconcerned to learn it was not Mr Bassi or was a substitute for Mr Bassi. Perhaps, too, if the driver, whoever he was, had failed to pull whatever levers or press whatever buttons or take whatever other steps were necessary to effect delivery, O'Shea might, in exasperation, have taken those steps themselves. But we do not see such possibilities as denying to the Tribunal, on the evidence they heard, the ability properly to conclude that Mr Bassi was, within the meaning of Section 7 "supplied" to O'Shea under a contract (namely that between Pioneer and O'Shea) made with O'Shea.

In this area Mr Buckley seeks to alarm us by saying that if Mr Bassi was a contract worker and O'Shea his principal and that they were such notwithstanding the ephemerality and limited purpose of their relationship, then so would any person effecting a delivery be a "contract worker" and so would any recipient of the delivery be a "principal". The point is a false one; for example, a postman delivering a letter will rarely be "supplied" under a contract made with the recipient addressee. It may, too, be doubted whether a delivery which involves no particular skill and no ascertainment of nor any acting upon the particular directions of the recipient would be regarded as "work" "for" the recipient. Moreover, it could be, as perhaps might have been the case here had only the contracts and circumstances been respectively fully produced and investigated, that those making delivery would be found not to be "employed" within the meaning of Section 78 (1). Where matters are, as here, ones very much of fact and degree dependent on the particular circumstances of particular cases, a "floodgates" argument such as is Mr Buckley's on this point holds few terrors, but, even if his suggestion had not been a false one, the only consequence would be that more people would be able to complain of discrimination in relation to their work than had perhaps earlier been thought likely, itself a consequence we could bear with equanimity given the purpose of the legislation, as shewn in Harrods, C.A. supra in the Court of Appeal at p. 58 by way of citation from the Government's White Paper on Racial Discrimination (Cmmnd 6234). The legislation, said the White Paper:-

"Must be comprehensive in its scope, and its enforcement provisions must not only be capable of providing redress for the victim of individual injustice but also of detecting, and eliminating unfair discriminatory practices."

We find nothing in Rice -v- Fon-A-Car

[1980] ICR p. 133

to disturb our conclusion on this point.

A fourth point taken by Mr Buckley is based upon the word "available" in Section 7 (1). As we understand him, there was no work here "available for doing". He sought to contrast the Bassi case with that of, say, a man who is procured to arrive at a site with a digging machine which he is then expected to use to dig a trench. The digging of the trench would, in such a case, says Mr Buckley, be work available for doing. That we would not dispute, but we fail to follow him when he sought to add that, by contrast, delivery of the concrete did not represent work to be done. He accepted that if Mr Bassi had failed to press the right buttons or pull the right levers but had, for example, been taken ill immediately before delivery, then an activity - the work of delivery - would have remained available to be done. We have failed to understand how it could be, if Mr Bassi had not effected delivery, that work would have remained available for doing but that his doing if it should not represent the doing of work available for doing.

We have now dealt with all the major points advanced on O'Shea's part. For the reasons we have given we dismiss the appeal. The inadequate production to the Tribunal below of the whole contract between Mr Bassi and Pioneer (if such it was) and its late production in the appeal to us, the doubts surrounding the important letter of the 4th August 1997 and the absence of any indication of what Mr Bassi's evidence consisted of all conspire to leave us with some sympathy for O'Shea's position. Mr Buckley may have felt that he was fighting with one hand tied behind his back. Whether, in the circumstances, O'Shea will be able to argue at the substantive hearing that it is not bound by the Industrial Tribunal's decision as res judicata is a matter not for us but, if for anyone, for the Tribunal that hears the substantive case.

We have two final points. Firstly, we see that in some cases it can be a useful economy to produce only part of a relevant document. However, when that is done, it is incumbent on the party that produces only part to make it manifest that it is only part that is produced and to offer the whole of the document should the Tribunal or another party require it. Secondly, it is, as we recognise, frequently very tempting both to parties and to Tribunals to light upon points which may be taken as preliminary points going to the jurisdiction of the Industrial Tribunal. Why they are tempting is because they dangle the alluring prospect of a shorter hearing, an earlier and cheaper disposal of the case, a thing attractive to Tribunals and parties alike. But some preliminary points - and the one we have been dealing with here is one - have been held to depend on matters of degree and on the particular facts of the particular case. If, for that reason, the preliminary question itself requires, in order for there to be an adequately informed decision, a relatively extensive investigation of fact and of surrounding circumstances, then, unless the decision on the preliminary question transpires to put an end to the case, there are likely to be two substantial hearings, no doubt months apart, rather than one. There may be two appeals rather than one. The final decision may thus be arrived at later than it would otherwise have been and at greater cost in Court time and in money (and, perhaps, too, in anxiety) to the parties. Where they are not sure that there is, indeed, a knockout point or a point which the parties will accept as a knockout point and which, in either case, is likely to be capable of being decided after only a relatively short hearing, Industrial Tribunals should be slow to accede to requests as to preliminary points said to go to jurisdiction and should not accede to such a request without giving the application some careful independent thought. Otherwise the alluring short-cut may prove to be a long way round. However, reverting here to the business before us, we dismiss the appeal.