FILCOM LTD v (1) MR R W MARSHALL (2) MR S J SCANLAN [1999] UKEAT 1058_99_0610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1058_99_0610Case No Appeal No. EAT/1058/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
FILCOM LTDAPPELLANT(1) MR R W MARSHALL (2) MR S J SCANLANRESPONDENT
Before
Mr Justice Holland Mr A D TuffinDate 6 October 1999
[1]APPEARANCES For the Appellant MR P MEE (of Counsel) Messrs Sherrards 2nd Floor 45 Grosvenor Road St Albans Hertfordshire AL1 3AW For the Respondents NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS MR JUSTICE HOLLAND : We have before this Tribunal an appeal from a decision of a Chairwoman sitting at an Employment Tribunal at Sheffield on 12 August 1999. The decision as set out in the Extended Reasons is in these terms:
"The unanimous decision of the tribunal is that the applicants are entitled to the protection afforded by the Employment Rights Act 1996 being workers working under a contract of service. The claim in relation to unfair deductions from payments due is adjourned to 12 October."
[2]From that decision an interlocutory appeal has been mounted to this Tribunal and has been well presented this morning by Mr Mee. In the course of the hearing there has been much vigorous discussion as to the overall merits, but essentially the problem, as developed by Mr Mee, is as to the exact basis for the decision of the Tribunal, it being in his submission somewhat opaque, certainly when one turns to the Extended Reasons themselves. His concern is as to the status of the Applicant's claim to be "workers" for the purposes of section 13 Employment Rights Act 1996 and that in its turn begs the question of the definition of that term as provided by section 230(3). It is material to note the terms of that subsection. They are these:
"(3) In this Act 'worker' … means an individual who has entered into or works under (or, where the employment has ceased, worked under) – (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract shall be construed accordingly."
[3]Mr Mee had various points to raise by way of his appeal. Thus, amongst other things, he is concerned that this was a decision arrived at by a Chairwoman sitting alone, without the benefit of input from lay members, but rigorous discussion revealed that the essential problem was as to whether she was making a finding that the Applicants were working under a contract of employment (section 230(3)(a)) or under a contract covered by section 230(3)(b).[4]Having had a clear intimation from this Tribunal that it was reluctant to prolong this debate and that our initial reading strongly favoured the section 230(3)(b) construction, that construction being consistent with the terms of the actual decision, he then decided that the matter could best be dealt with pragmatically upon the following basis. He invites this Tribunal to make an Order in these terms:
"Upon it being accepted by the Respondents that the basis of the Chairwoman's decision was that the Applicants were workers under section 230(3)(b) and not section 230(3)(a), that is that they were not employed under a contract of employment (as employees), this appeal is withdrawn."
[5]In the event the Applicants are unrepresented before us and thus there cannot be specific acceptance by them. Nonetheless, the strength of our views are such that were they here that acceptance would be inevitable. Whether they are "workers" by reference to section 230(3)(a) or section 230(3)(b) is of no significance to them and they have never claimed to have contracts of employment.[6]In all those circumstances we make the Order sought and it has our blessing.