Dowey v. Abel & Anor (t/a J B Abel & Son) [1999] UKEAT 29_99_1203

EAT
Dowey v. Abel & Anor (t/a J B Abel & Son)
[1999] UKEAT 29_99_1203 · 1999-03-12
MR JUSTICE HOLLAND : By an IT1 dated 19 June 1998 the Applicant, David Dowey, complained that he had been unfairly dismissed by the Respondents. That complaint came before an Employment Tribunal held at Middlesbrough on 26 October 1998. In the result the decision was:
"The unanimous decision of the Tribunal on the preliminary point is that the applicant was not an employee of the respondent and accordingly the Tribunal does not have jurisdiction and the application is dismissed."
Turning then to the explanation of the matter set out in excellent Extended Reasons, it is apparent that the essential question decided, by way of that preliminary hearing, was whether the relationship between the Applicant and the Respondents was a relationship of employee / employer or whether it was a relationship between an independent contractor and his customer. In the oft familiar words, "was the contract for service or was it a contract for services?".Turning then to the facts carefully set out by the Employment Tribunal, it is plain that the Applicant had very carefully created the appearance of being an independent contractor, but he submitted that all that notwithstanding, the reality of the matter was that the relationship with the Respondents was closer, so that it was appropriate to regard him as the employee of the latter and thus able to maintain a complaint of unfair dismissal.There is, for present purposes, little point in going into the precise facts as set out by the Tribunal. They are there for the reader to peruse at leisure. The facts having been set out, the Tribunal then directed itself as to the law and further set out, with care, the submissions made by the representatives for the respective parties. It then drew particular attention to two passages from reported cases. Thus it reminded itself of the observations of Mummery J in Hall v Lorimer [1992] ICR 739, at 744:
"In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person's work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed considered qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal importance in any given situation. The details may also vary in importance from one situation to another. The process involves painting a picture in each individual case."
Having thus directed itself as to the law, in the remaining paragraphs of the Extended Reasons the Tribunal sought loyally to act in accordance with that guidance. In doing so, they arrived at a view which they expressed in the final paragraph:
"12. Accordingly looking at the matter in the round and, as directed by the authorities, painting a picture of the relationship, the Tribunal concluded that the true nature of the relationship between the applicant and the respondents, was that the applicant was working for the respondents, under a contract for services, performing work for the respondent as a self employed agricultural contractor and not as an employee. Accordingly the finding of the Tribunal on the preliminary point is that the applicant was not an employee of the respondent."
Given the quality of the Extended Reasons, given the obvious care upon which why were based, it is somewhat surprising that an appeal has been mounted. It is the more surprising because the Tribunal drew attention to a passage from a judgment of this Tribunal: Secretary of State for Education and Employment v Bearman , [1998] IRLR 431 in which it was pointed out how difficult it was successfully to mount any appeal against an exercise of a balancing judgment of the type carried out here. Nonetheless, there has been an appeal mounted and it is has been supported by a skeleton argument that we have all read and perused. Our concern is as to whether, within the body of that argument, there is identified a point of law arising out of this adjudication which could, and should, be the subject of an inter partes hearing.We say straightaway there is no such point. It would be surprising if there was one. In those circumstances we do not direct an inter partes hearing. We dismiss this appeal.