MR D BURNS v HARROW ASSOCIATION OF DISABLED PEOPLE [2000] UKEAT 1158_99_3101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1158_99_3101Case No Appeal No. EAT/1158/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D BURNSAPPELLANTHARROW ASSOCIATION OF DISABLED PEOPLERESPONDENT
Before
Mr Justice Charles Mr L D CowanLord Gladwin of CleeDate 31 January 2000
[1]APPEARANCES For the Appellant MR E BROWN (Legal Advisor) Southwark Law Centre Hanover Park House 14-16 Hanover Park London SE15 5HG MR JUSTICE CHARLES : This appeal comes before us today by way of preliminary hearing. The parties are a Mr Darren Burns and the Harrow Association of Disabled People, who I shall refer to as "HAD". The appeal is against a decision of an Employment Tribunal sitting at London (North). The Extended Reasons for which were sent to the parties on 13th August 1999. The decision was that the application be dismissed. The application was a claim under the Disability Discrimination Act 1995 (the 1995 Act). The reason underlying the decision of the Employment Tribunal was that the Respondent HAD had less than 15 employees. The decision was therefore made by reference to section 7(1) of the 1995 Act, which provides:
"(1) Nothing in this Part applies in relation to an employer who has fewer than 15 employees."
Section 68 of the 1995 Act defines, for the purposes of that Act the term "employment" in the following terms:
""employment" means, subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly."
That definition of "employment" is in the same terms as the definitions in section 82 of the Sex Discrimination Act 1975 and section 78 of the Race Relations Act 1976 . It includes self-employed people (see for example Harvey, divider L, paragraph 1342).[2]The Extended Reasons refer to section 12 of the 1995 Act which is a section which relates to contract work and contract workers who are defined in subsection (6) of that section in the following terms:
"(6) In this section- "principal" means a person ("
A") who makes work available for doing by individuals who are employed by another person who supplies them under a contract with A; "contract work" means work so made available; and "contract worker" means any individual who is supplied to the principal under such a contract." The Appellant's representative, Mr Brown today told us, that the Chairman of the Employment Tribunal raised section 12.[3]The definition in section 12(6) demonstrates that section 12 is dealing with a contractual relationship between a "principal" and a third party under which the third party provides individuals to do work. The result of that is that the individual worker does not have a contract with the "principal".[4]In connection with the provisions of the 1995 Act (including section 7) a distinction between a contract worker and an employee (including a self-employed person), is that in applying the definition of an employee what has to be looked for and found to exist is a contract between the individual worker and the respondent to the proceedings. Therefore, here, what has to be looked for is a contract between HAD and the individuals put forward by the Appellant as being employees.[5]We pause to comment that also in reading and applying section 12, sections 12(3) and 4(1) to (3) should be taken into account. As we read them, on this preliminary visit to the sections, they have the consequence that contract workers are not included for the purposes of sections 4(1) to (3).[6]The Appellant was an employee, and the issue before the Employment Tribunal was whether HAD had fewer than 15 employees. As the Extended Reasons show a statement was put before the Employment Tribunal and as we understand the Extended Reasons, was considered by the Employment Tribunal and treated by them as evidence.[7]The four people referred to in that statement who the Appellant maintained were employees were a Nita Vashnaw, a Siddika Kargi and a Gabby Byrne. Additionally a cleaner was put forward, the name of the cleaner was not identified but the Appellant asserted that the cleaner was a woman.[8]Gabby Byrne was a Note Taker who the Appellant maintained attended approximately two times a week, primarily taking notes for and assisting a Miss Sarah Jennings. Nita Vashnaw was again a Note Taker and the Appellant's statement said that he drew up her contract of employment and asserted that that contract was between HAD and Nita Vashnaw. Additionally we were told today by Mr Brown that she was involved additionally in some therapeutic work; this fact forms part of the Appellant's Notice of Appeal, but is mentioned nowhere in the Extended Reasons. Siddika Kargi, we were told, and it appears from the Appellant's statement, worked mainly and regularly for the Chief Executive of HAD, who we understand to be severely deaf.[9]The essential reasoning of the Employment Tribunal appears from paragraphs 6 to 10 of the Extended Reasons. They are as follows:
"6 Mr Brown on behalf of the Applicant argued that employees in these context should include self-employed persons and refers to the Sex Discrimination Act and the Race Discrimination Act as a comparison. 7 Mr Brown was referred to section 12 of the Disability Discrimination Act which refers to contract workers and specifically deals with the right of contract workers to bring a claim under the Disability Discrimination Act. 8 We heard evidence from Mr McLoughlin, the Chief Executive in relation to the way the named persons were employed and it is clear from his evidence, which we accept, that these workers were "note takers" who were used by individuals to take notes or to interpret for them because of the person's disability. It is clear that they were selected from a list according to their availability and paid a fee for the work that they did. The fee is paid ultimately by the Disabilities Services Scheme although the Respondents in this case do immediately pay for workers used so that there is no delay in them receiving payment. It is clear from the Respondents' evidence that the persons named were not employees but were self-employed persons providing a service as and when it was needed. In fact there were two signers before this Tribunal to assist the parties because of their disability. 9 In regard to the cleaner Mr McLoughlin informed us that is was a man who was a volunteer who was only paid expenses. 10. It is clear therefore that this Tribunal has no jurisdiction to hear this claim based on two matters: (1) This voluntary organisation did not have 15 employees and therefore is exempt from complying with the Disability Discrimination Act 1995. (2) All the persons named by the Applicant as employees if they were employed at all were employed not by the Respondents but by the individuals who used them to call their services."
[10]One can see from paragraph 6 that Mr Brown, on behalf of the Appellant, made a submission that self-employed persons were included within the statutory definition of employment.[11]Paragraph 7 is the reference to section 12. As I have already said, we were told today that the Chairman of the Employment Tribunal introduced section 12 into the case.[12]Paragraph 8, in our judgment, does not take an approach by reference to the definition of contract worker or indeed, so it seems to us, by reference to the definition in section 68, and in our judgment it is reasonably arguable that the penultimate sentence of paragraph 8 indicates that the Employment Tribunal were proceeding on the basis that self-employed persons were outside the ambit of section 68. Therefore, in our judgment, it is reasonably arguable that the Employment Tribunal took the wrong approach, both as to the ambit of section 68 as a free-standing section and the effect of section 12 on the exemption for small businesses included in section 7 of the 1995 Act.[13]Further, it seems to us, to be reasonably arguable that the Extended Reasons demonstrate that the Employment Tribunal did not direct their attention sufficiently, or at all, to identifying the contractual relationship between HAD and the four persons we have referred to above, and who were advanced by the Appellant as persons who took the number of employees of HAD from 13 to 17, if all of them were included.[14]So far as the cleaner is concerned, the Extended Reasons make no reference to the reasons why the woman referred to in the Appellant's statement was not an employee. The inference from paragraph 9 is that they rejected that statement and found that the cleaner was in fact a man.[15]It seems to us that in the circumstances of this case and having regard to the points of law that we have identified as being reasonably arguable that the whole of the Notice of Appeal should be allowed to proceed to a full hearing and that the penultimate paragraph in the Notice of Appeal should be treated as covering(a) the points relating to the identity of the cleaner and the therapeutic work carried out by Nita Vashnaw, and further(b) the point that the Employment Tribunal erred in the procedure they adopted in not calling for discovery of the document which the Appellant alleged he had written, namely the contract of employment in respect of Nita Vashnaw.[16]We therefore for the following reasons direct that this appeal proceed to a full hearing.[17]It is apparent from the last paragraphs in the Extended Reasons that strong views have been held in this case as to the application of the 1995 Act.[18]We have to say that during the course of submission this morning we became a little confused at times as to the nature and extent of the assertions being made on behalf of the Appellant. It seems to us that we should make the following directions in respect of this appeal:(1) The statement of Darren Burns should be lodged with the Appeal bundle;(2) The Respondents should provide a statement setting out precisely what they say the position is in respect of each of the four persons whom the Appellant maintains are employees and those are the four persons (three that are named and the female cleaner) in this judgment and that statement should refer to and enclose all documents relied on by HAD to support their case that they are not employees within the statutory definition of section 68. We add that, in our judgment, this Tribunal would be considerably assisted if HAD were to provide a clear description of the manner in which payment is made to the individuals and the source of those payments and thus, for example, an identification of the Disability Services Scheme and the manner in which HAD receive monies from that scheme to pay to note takes and the arrangements made between HAD and the note takers.[19]Given these directions, it seems to us unnecessary to have Notes of Evidence of the matters that were before the Employment Tribunal.[20]We will direct that HAD comply with direction (2) within 28 days of service upon them of the Order of this Tribunal.[21]We will also expressly direct, although it is in our Practice Direction, that both sides should provide skeleton arguments for this Tribunal on the final hearing.[22]We express the hope that both sides will consider carefully the relevant factual information against the relevant statutory provisions with a view to seeing whether they can reach agreement. Both sides, as we understand it, are mindful of the need if possible to avoid expenditure in respect of litigation relating to this claim.[23]We give this case Category B status and a time estimate of three-quarters of a day.[24]One of the reasons for the directions we have given is our wish to provide this Tribunal with as clear a picture of the factual position as is practicable having regard to the possibility that this Tribunal may then itself be in a position to decide the issue whether the 1995 Act applies if it was of the opinion on the full hearing that the Employment Tribunal had erred in law. That could, we hope, bring about a saving in costs.