MR K J HAYWARD v POST OFFICE COUNTERS LTD [2001] UKEAT 0442_01_0211

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0442_01_0211

Case No Appeal No. EAT/0442/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR K J HAYWARDAPPELLANT

POST OFFICE COUNTERS LTDRESPONDENT

Before

Mr Justice Wall Mr R Sanderson

Date 2 November 2001

[1]APPEARANCES For the Appellant MR L MENZIES (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE WALL This is the preliminary hearing of an appeal by Mr Hayward against the decision of the Employment Tribunal held at Manchester on 31 st August with Extended Reasons promulgated on 19 th January. Mr Hayward is a Sub-Postmaster and the Respondent to the appeal is Post Office Counters Ltd. The appeal raises, in a short and very acute form, whether or not Mr Hayward is self employed pursuant to his contract with the Post Office or, as they are now called, Consignia, or whether he is a worker within the confines of the recent legislation and in particular whether he is, therefore, entitled, as a worker, to be paid the minimum wage or above.

[2]The Tribunal in a long and very careful judgment dealing with the National Minimum Wage Act 1998 and the Working Time Regulations 1998, came to the conclusion, following previous authority in the Tribunal, Sheehan v Post Office Counters Limited , that Mr Hayward was self employed. It followed therefore that the Act and the Regulations did not apply to him. It is that decision which, as I indicated, he is seeking to appeal, the Tribunal having found they had no jurisdiction to entertain his claim.

[3]We have been shown, amongst other documents, today a decision of a Scottish Tribunal held on 27 th August 1999 in which that Tribunal in the case of Bain v Post Office Counters Ltd took the opposite view and decided that Mrs Bain fell within the Act and the Regulations. We have, accordingly, come to the view on that basis that there is an arguable point which needs to be resolved authoritatively, and it would be best resolved authoritatively by an inter-parties appeal between Post Office Counters and Mr Hayward.

[4]The second point, which did not arise before the Tribunal, was whether or not Mr Hayward was a home worker within the 1998 Act. The point is taken for the first time in his Notice of Appeal. Normally under these circumstances, even though Mr Hayward was in person below, we would be reluctant to allow that argument through, since it was not addressed to the Tribunal and the Tribunal had no opportunity to address it. However, in the particular circumstances of this case, as an authoritative decision covering all the ground is required, we think it would be sensible for that point to be argued in the Employment Appeal Tribunal and, therefore, we propose to allow the matter to proceed to a full hearing on both points raised in the Notice of Appeal.

[5]We should also finally add for the record that we have received correspondence from the Inland Revenue in which they make reference to a case currently proceeding in the Manchester Tribunal, albeit some way from determination, in which similar issues are involved. The Inland Revenue clearly has a close interest in whether or not a person is a worker or self employed.

[6]In these circumstances we take the view, having been asked to adjourn this appeal to allow the Manchester case to go forward, that a preferable course would be for a close eye to be kept on the Manchester case. No doubt that the Revenue will do that, and if that case is appealed on determination, then that appeal should be determined, and listed at the same time as the current appeal. Indeed, perhaps the two appeals should be consolidated so that they can both be heard by the Employment Appeal Tribunal together and a definitive decision on all aspects of this interesting matter reached. It is on that basis that we allow the appeal to go forward for a full hearing.