MR K DABSON v DEWSTOW GOLF CLUB [2000] UKEAT 693_00_2310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 693_00_2310Case No Appeal No. EAT/693/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K DABSONAPPELLANTDEWSTOW GOLF CLUBRESPONDENT
Before
His Honour Judge J R ReidDate 23 October 2000
[1]APPEARANCES For the Appellant MR N SPROULL (of Counsel) Messrs Barnes Richards Rutter Solicitors Manor House Bank Street Chepstow Monmouthshire NP16 5EL JUDGE REID QC : This is an appeal by Mr Kim Dabson, a professional golfer, from a decision of the Employment Tribunal sitting at Cardiff entered on the Register on 19th April 2000. The chronology of events is as follows. In the autumn of 1990 Mr Dabson started work as a golf professional. He was, it seems clear, at that time treated as self-employed. In due course in November 1995 he started receiving payment for his work in the golf shop at Dewstow Golf Club separately, tax being deducted under the PAYE scheme. On 12th April 1996 he was given a document described as setting out the main terms and conditions of his employment. For present purposes I need read only the first few clauses of that document:
"EMPLOYEE: KIM DABSON Your employment with the above named company commenced on 12.4.96 JOB TITLE (or brief job description) You are employed as a GOLF PROFFESSIONAL Because of the organisation and nature of the business there will be times when you will have to carry out other duties. Every effort will be made to keep these occasions to the minimum. PLACE OF WORK: DEWSTOW GOLF SHOP PAY: Payment will be made at the basic rate of £ 5.20 per hour/ week . You will be paid in cash on Friday of each week. HOURS: Your working week in [ sic ] one of 20 hours/variable as per weekly rota."
He continued from then working his 20 hours in the shop and giving lessons.[2]On 20th September 1999 there was an incident as a result of which the appellant, Mr Dabson, left the Golf Club immediately, save for completing one lesson that he had booked for that morning.[3]On 7th October 1999 there was a meeting between Mr Dabson and representatives of the Golf Club in which he declined to return to work save on certain conditions. There was no meeting of minds as to those conditions, and he did not return. The appellant was informed by letter dated 7th October 1999 that the conditions were not going to be met.[4]On 6th December 1999 he issued proceedings in the Employment Tribunal and there was a hearing on 6th April 2000.[5]The tribunal held:
"The unanimous decision of the tribunal is that the applicant was unfairly dismissed. He [ is ] entitled to a basic award of £408.00 and a compensatory award of £316.59. The recoupment regulations apply."
[6]The tribunal held, and this is the first matter against which there is an appeal, that the engagement of Mr Dabson at the Golf Club comprised two separate relationships. The first was as an employee pursuant to the contract, the terms and conditions of which I have already referred to; the second, as someone who was self-employed acting as the Club Professional.[7]The findings of fact in relation to that were that the arrangement negotiated was that he would make his services available to members of the Club, to members of adjoining clubs and indeed members of the public. He would charge these individuals a fee for each lesson of half an hour. He would receive the entire fee himself. But it appears it was the Club who fixed the rate at which he was to charge for lessons. In the findings of fact it said that he owed no obligation to the club to accept any particular pupils, or to account to the Club for any monies received. He did not receive any payment from the Club in respect of his services as a teaching professional. It was a finding of fact that he enjoyed a licence from the Club to use their premises to conduct his own business. The benefit that the Club received from this was firstly, as with any golf club, it is essential for the well being of the club for there to be a teaching professional available at the club; secondly, the Club had the benefit of selling equipment, in particular golf balls, to those receiving lessons, and thirdly, those who partook of lessons if not already members might pay for a round of golf or indeed pay for other services from the club.[8]The tribunal held that Mr Dabson was self-employed and was not an employee so far as his golf lessons business was concerned. It is said that that was an error of law because there was a mutual obligation without which the Club could not function. It is suggested that the main factors that should have been taken into account were firstly the words of the terms of employment in the shop "You are employed as a golf professional." Secondly, the mutual obligation. Thirdly, the degree of control the respondent had over the appellant in setting the tuition fees and because they provided the practice area where the lessons would take place and presumably a certain amount of backup to go with it, e.g., ball retrieval.[9]It is further said that the finding that the appellant had a bare licence to use the premises was to ignore a long course of dealing and mutual obligation and that the affording of employment protection in relation to the more minor functions but not in relation to the major functions was perverse.[10]Mr Dabson clearly never regarded himself until these unfortunate events as being an employee. He dealt with his tax affairs under Schedule D using the services of an accountant. He no doubt knew the benefits that come from self-employed status, e.g., making tax-deductible transport between his home and the Club. I suspect a large number of either items.[11]Mr Sproull, who appeared on his behalf, accepted that were his appeal to be successful, it would be necessary for Mr Dabson to go back to the Inland Revenue and have all his tax affairs back to the Autumn of 1990 reinvestigated and reassessed with whatever penalties were consequential on that.[12]It seems to us, looking at this in the round, that Mr Dabson was right in regarding himself as self-employed in his role of teaching professional. The two functions were entirely different.[13]The shop contract may refer to him in relation to the Golf Shop as being employed as a golf professional rather than employed as a shop assistant, but that statement of the terms and conditions of employment clearly dealt only with his position in the shop: it defined the working week as being one of 20 hours, it gave a basic rate of pay of £5.20 per hour, it said nothing at all about any other payments or any other duties. In this function he was an employee.[14]In our judgment the main function of having a teaching professional is one which benefits the club as it benefits the teacher. There may indeed be mutual obligations, but it does not follow from the mutual obligations that the inter-relationship is one of master and servant or employer and employee. In any contract there are mutual obligations. The absence of an obligation to teach particular pupils is, in our judgment, one which is extremely relevant. Were he an employee we see no reason why that any such term, that he shall only teach those pupils he wanted to, should be implied. He would then have to teach those who his employer told him to teach. The fact that the Club set the tuition fees and provided the premises is, in our view, not determinative. We cannot see that it is in any sense perverse for parties to choose for their own reasons to organise their affairs in such a way that there is one function governed by a contract of employment and a greater function or a more well-regarded function which is governed in some other way. Equally, we cannot see that it is perverse or that there is any ignoring of any long course of dealing or mutual obligation in holding that the long course of dealing and mutual obligation had taken place on the basis that the appellant had a bare licence to use the premises as a teaching professional.[15]In our judgment the tribunal was entirely right to hold that Mr Dabson was self-employed so far as his role as a teaching professional was concerned. Indeed, we suspect that given the potential tax consequences he is a good deal better off as a result of that rather than having to go back to the Inland Revenue and have his affairs re-opened.[16]As a separate ground it is said that the tribunal was perverse in finding that the appellant "stood on his dignity" and thereby limiting the extent to which he received compensation. The relevant passages in the extended reasons are at paragraphs 9 and 10.[17]We take the view, so far as this is concerned, this was something which was for the tribunal to determine as a matter of fact. They were the people who had the advantage denied to an Appeal Tribunal of seeing the witnesses, of hearing their evidence and of forming a view as to what happened at the time of the parting of the ways.[18]What appears to have happened was that there was a major row, see paragraph 4 of the tribunal's extended reasons. Mr Harris Senior, father of the other partners as it appears in the Club, came to see Mr Dabson and Mr Bradbury, who also worked in the Club Shop. He was irritated to learn that a new golf warehouse had been opened in Hereford but neither Mr Dabson nor Mr Bradbury had told Mr Harris Senior anything about it. The tribunal concluded that Mr Harris did indeed use words which suggested that he was dismissing them. These were clearly words used in the heat of the moment. Mr Dabson left at once, but Mr Bradbury stayed on and subsequent discussion gave rise to the result that it turned out that Mr Harris, who was 73 years of age and "apparently can be somewhat crotchety on occasion" did not really mean to dismiss him at all. When his daughter, one of the other partners, learned of what had happened, she got him to make a statement in which he said he had merely responded to a suggestion by Mr Dabson that he had terminated his employment by saying "if that is what you want". The tribunal point out that that was clearly not what Mrs Talbot or her brother John wanted and they thereafter made a number of attempts to effect a reconciliation. Those culminated in a meeting on 7th October were certain stipulations were put forward by Mr Dabson as a condition of his returning. But he was told that it was not possible to change his terms and conditions of employment and he was urged to return to work and raise any grievance he had under the proper procedure. He chose not to do so.[19]It seems to us that how the events of 20th September and 7th October and indeed the intervening attempts to get hold of Mr Dabson and to effect a reconciliation were viewed was essentially a matter of fact for the tribunal. It does not appear to us that there is any point of law involved in the Employment Tribunal's decision nor can it be said, in our judgment, that what the tribunal determined was in any sense perverse. It follows that that ground of appeal also fails.[20]The third point was that it was said that the events at the hearing gave rise to an unfortunate impression that the tribunal was angered by a failure on the part of the parties to settle and that it therefore made its decision so that neither party got what it wanted, or that at least was the appearance of what happened.[21]The events of that day were as follows. The case was conducted briefly and final speeches were concluded shortly before 1 o'clock. The tribunal then retired and they first of all considered the question of status. They determined that there was only one contract of employment requiring 20 hours work a week in the Golf Shop. They did not accept that the tuition fees were prerequisites of that office, akin to tips, or that there was an employment contract which extended to the job as a teaching professional. In those circumstances, they took what appears to us to be an eminently sensible solution, and clearly one which appealed to them as being a possible way forward. They had seen two of the parties (Mrs Talbot and Mr E Harris), and of course they had seen Mr Dabson. They wished to see whether there was any way in which the parties could resolve matters so that their relationship could be resumed. The Chairman in a letter to the Employment Appeal Tribunal has pointed out that Mr Dabson had given evidence about his pride in his part of the growth of the Club, which was apparently a club formed in the 1980's on what had previously been farmland, and that the two partners who attended gave the impression that they never wanted Mr Dabson to leave. The result was that the tribunal invited the parties to return to the adjoining tribunal room in the absence only of the public. Despite what appears to have been the impression gained by Counsel for Mr Dabson, Mr Dabson was not excluded. Mrs Talbot, one of the partners and its personnel manager represented the Club, and Mr E Harris were present as was Counsel for Mr Dabson. The tribunal then explained the conclusion that they had reached on what they regarded as an important point. There then appears to have been something of a contretemps, but the parties were left to see if they could conclude deliberations and reach a settlement. In the meantime the tribunal went on considering matters and according to the Chairman's letter did not conclude their deliberation that day but conferred the following week. According to a letter of 12th April 2000:
"On 6 April the tribunal announced its decision that the contract of employment with which it was concerned related solely to Mr Dabson's duties in the golf shop. It did not extend to his teaching duties as golf instructor. On all other matters they reserved their decision for 7 days to see whether the parties could resolve their difficulties themselves."
The tribunal then asked whether the decision should be promulgated on or shortly after the 14th April or whether further time, in effect for negotiation, would be required. The letter ended on behalf of the Regional Secretary ended thus:
"Mr Sproull, for the applicant, did say that he would require a decision in any event but the tribunal pointed out, that their jurisdiction was limited to the contract of employment. It was clear that the matter of greatest concern to the parties was the provision of a golf instructor at the Dewstow Club."
[22]No settlement was reached and the matter was therefore resolved by the decision.[23]In our judgment it is fanciful to suggest that a reasonable party could take the view that the tribunal by its decision was trying to punish one other or both sides for failure to settle. The tribunal was doing its level best to see whether there was a pragmatic way forward since it took the view this might well be in the interests of both sides. It was doing no more than that.[24]We are satisfied that there was no impropriety in the way that the decision was reached or in the manner in which was reached and we are further satisfied that no reasonable party could properly take objection to the manner in which the tribunal conducted itself.[25]In those circumstances, on this preliminary application, we are satisfied that there is no point of law or other reason why this matter should go to a full hearing and the appeal will be dismissed.