MR DONALD TONY ANDERSON v ASC STAFFING LTD [2000] UKEAT 181_00_1606

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 181_00_1606Case No Appeal No. EAT/181/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR DONALD TONY ANDERSONAPPELLANTASC STAFFING LTDRESPONDENT
Before
Mr Justice Maurice Kay Mr B R Gibbs Mrs D M PalmerDate 16 June 2000
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED MR JUSTICE MAURICE KAY : We are invited to deal with this preliminary hearing on the papers because the appellant's wife has serious health problems and they are both prevented from being here today. They have, however, indicated their readiness for the matter to proceed in their absence and upon paper. The appellant seeks to appeal the decision of an Employment Tribunal which sat in Leeds on 30th November 1999. On that occasion the tribunal was concerned to investigate whether or not the appellant had the necessary continuity of employment to qualify him to present a complaint.[2]The background is as follows. In the Summer of 1998 the appellant applied to the respondents and was taken on upon the basis of a document that was signed on 3rd June 1998. The essence of that document was that the respondents would engage him as a temporary worker on an "as and when required basis". The respondents found work for the appellant at the premises of a company called Speedibake. From July 1998 until 11th December 1998 the appellant worked at those premises each week. In December 1998 the appellant's wife became ill. Work remained available for him at Speedibake but between 11th December 1998 and 4th January 1999 he did not avail himself of that work. The Employment Tribunal summarised the position in this way:
"4. … We are satisfied that at that time the Applicant had a discussion with a Miss Robinson, who was the On-site Co-ordinator and for the following three weeks the Applicant was not offered, nor did he accept, work from the Respondents. It was, however, understood that once his wife's illness had been dealt with, the Applicant would wish to return and be re-assigned to Speedibake and that happened on 4 January 1999."
[3]From January 1999 to April 1999, the appellant again worked each and every week at Speedibake through the auspices of the respondents. In April 1999 he was offered a contract which the Employment Tribunal found was clearly intended to be a permanent contract of employment and he continued to work under that contract at Speedibake until September 1999. At that stage the appellant was dismissed. He presented his claim for unfair dismissal and there therefore arose the issue as to the continuity of his employment.[4]The Employment Tribunal identified the issue in the following terms:
"6. The question which we as a Tribunal have to determine is the nature of the relationship between the Applicant from the early part of July 1998 until April 1999. …"
They declared themselves to be greatly assisted by the recent decision of the House of Lords in Carmichael & Another v National Power Limited . The tribunal noted the different facts in that case, but emphasised in the National Power case, there was a document which:
"did no more than provide a framework for a series of successive ad-hoc contracts of service or for services which the parties might subsequently make and that when the applicants were not working under the arrangements anticipated by the agreement, they were not in any employment relationship with the company, National Power."
That essentially, was what the Employment Tribunal found to be the correct analysis in the present case.[5]The arrangement made in June 1998 was referred to by the tribunal as "an umbrella". They added:
"8. … There was no mutuality of obligation. There was no obligation upon ASC to find work for the Applicant and there was no obligation on the Applicant to take work if it were found. …"
They observed as a fact that each and every week between July and December 1998 and each and every week from January and April 1999, were weeks in which ASC did find work and the appellant proceeded to carry out that work.[6]The tribunal further investigated the day-to-day arrangements that existed between the appellant, ASC and Speedibake. ASC paid the appellant and provided him with a uniform, but when he was at work at Speedibake, having reported to ASC's onsite co-ordinator, he then came under the supervision of Speedibakes' own employees. If there had been disciplinary matters (and there were not) they would have been dealt with by ASC and not by Speedibake.[7]The final conclusion was expressed as follows:
"11. Taking the totality of the relationship, the Applicant had either to be working under a contract of employment or he had to be working under some other kind of contract. The reality of the situation is that the Applicant cannot be regarded as an independent contractor. He was engaged to do the bidding of another party and to follow the instructions of that other party. We are satisfied that the reality of the relationship between the Applicant and the Respondents, each and every week was that of employee and employer but that was not a relationship under the umbrella agreement of 3 June or 30 September 1999. It was a relationship that was created on an ad-hoc basis each and every week. Each week that the Applicant was offered work and took it, that created a separate contract of employment."
There then followed a careful analysis explaining why, in those circumstances, the appellant was unable to point to the necessary 52 weeks continuity of employment, there being a break between 11th December 1998 and 4th January 1999. The tribunal said:
"13. … Those are weeks which we are satisfied were not governed by any of the ad-hoc contracts of employment that the Applicant entered into on a week by week basis."
[8]The tribunal then addressed s.212(3)(c) of the Employment Rights Act 1996 to see whether there was any possibility of deemed continuity under that provision. However, they concluded:
"14. … On the evidence we are satisfied that for those three weeks it was agreed that the Applicant would not be offered a contract and the Applicant would not accept a contract. It was not an arrangement whereby the Applicant would be regarded as continuing in employment."
Putting all that together, the appellant therefore failed to establish the 52 weeks of continuity.[9]The appeal sought to be advanced on his behalf is expressed by reference to three grounds. The first suggests that the tribunal was wrong to make its week by week finding because it is said that the true intention of the parties was that the employment was permanent, in such circumstances that the break in December and early January did not break continuity. Secondly, attention is drawn to the facts that the respondents', apparently, calculated holiday pay on a basis which at least implies continuity during that period. Thirdly, it is suggested that the decision is one which no reasonable tribunal properly directing itself in the law could have reached.[10]We have given those grounds of appeal careful consideration. It was for the Employment Tribunal to find the facts in this case. In our judgment, there is no identifiable error of law on the face of the decision. It seems to us that the law was correctly stated and understood. The factual conclusion reached by the tribunal, upon the basis of an application of that law, is of course unfavourable to the appellant. But, in our judgment, it is not arguable that that conclusion is or was at variance with the evidence or was one that was outwith the findings which were open to a tribunal properly applying the law or was perverse in any way. We have come to the conclusion that the decision of the Employment Tribunal in this case does not disclose arguable grounds of appeal that would have any prospect of success. In all those circumstances, we shall have to dismiss the appeal.