HEWLETT PACKARD LTD v MR M O'MURPHY [2001] UKEAT 612_01_2609

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 612_01_2609Case No Appeal No. EAT/612/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HEWLETT PACKARD LTDAPPELLANTMR M O'MURPHYRESPONDENT
Before
Mr Justice Douglas Brown Ms N Amin Mr B V FitzgeraldDate 26 September 2001
[1]APPEARANCES For the Appellant MISS DINAH ROSE (of Counsel) Instructed By: Messrs Baker & McKenzie Solicitors 100 New Bridge Street London EC4V 6JA For the Respondent MR JOHN ANTELL (of Counsel) Instructed By: Messrs Marsh Warry Glenthorne House Princes Street Yeovil Somerset BA20 1EJ MR JUSTICE DOUGLAS BROWN: This appeal raises an interesting question on a sophisticated version of an often encountered situation where workers on the books of an Employment Agency hired to third party employers seek to establish that they were in fact employed by those third party employers.[2]The Appellants, Hewlett Packard Ltd, are such employers and the Respondent to the appeal, Mr Martin O'Murphy, succeeded in the Employment Tribunal on a preliminary issue obtaining a finding that he was an employee of Hewlett Packard Ltd between 1994 and October 2000.[3]The variation in the usual pattern of these cases arises because Mr O'Murphy was not hired out directly. He formed a limited company, Circle Technology Ltd and the agency, Eaglecliff Ltd employed him under a written contract and themselves entered into a written contract to provide services for Hewlett Packard.[4]Hewlett Packard appeal the decision of the Employment Tribunal sitting at Bristol, (Chairman, Mr M J R Griffiths) whose extended reasons were sent on 6 April 2001. History and background .[5]The facts are not in dispute. Mr O'Murphy is a computer specialist. At sometime in or before 1994 he formed Circle Technology Ltd, a private company, about which little is known except that Mr O'Murphy was a director of it and he described himself as an employee of that company. It was found by the Tribunal to be owned and managed exclusively by the Applicant for the purposes of the administration of his services.[6]In June 1994 Circle Technology Ltd (CT) entered into a contract with Eaglecliff Ltd, an employment agency. CT called in the original contract "the contractor" agreed to provide computer services to any client of Eaglecliff. It is clear however, by reading of clause 2.1 with the schedule to the agreement that the client company was Hewlett Packard at their premises at Bracknell and Mr O'Murphy was named as the "approved Consultant". His job description was Contract System Manager.[7]We refer to some of the clauses of this agreement. Clause 3.2 provided that the contractor:
"Shall be under the control of the client regarding performance and discipline and shall obey all reasonable and lawful instructions given by the client and, in particular, observe all reasonable security precautions in regard to client information"
. Clause 4 dealt with secrecy and confidentiality.[8]Clause 5 was concerned with the payment of fees. Paragraph 5.1 provided that Eaglecliff would pay to CT fees, and where appropriate, approved expenses on a 4-weekly basis. The fees would be calculated after receipt by Eaglecliff of their weekly time sheets signed on behalf of Hewlett Packard with a VAT invoice.[9]CT regularly invoiced Eaglecliff giving the total hours worked, the hourly rate with VAT being added to the total. CT was registered for VAT.[10]The schedule to the agreement was updated regularly to take into account changes for example, in the identity of the plant contact and in the rates of remuneration.[11]The second schedule to the agreement remained unaltered. It is an important document. It was an undertaking and an agreement for the protection of Hewlett Packard's confidential property and confidential information. In it, Mr O'Murphy personally and not CT, agreed and undertook that in consideration of the arrangements that Hewlett Packard would make to enable him to visit sites in the United Kingdom, he would not use, divulge or communicate the information specified in the document. That agreement and undertaking begins with this recital: "I, Martin O'Murphy, being an employee of Circle Technology Ltd of Swindon, Wilts" and at the bottom the agreement is signed by Mr O'Murphy, dated 20.5.97.[12]Mr O'Murphy worked at Bracknell until 16 July 1999 when his assignment there came to an end. He was formally informed of this by Eaglecliff by their letter of 2 July 1999. This was sent to Mr O'Murphy as Director of CT. The letter included this sentence:
"A copy of this letter has been sent to HP for information"
. At the bottom this appeared:
"I confirm my agreement to the above. Signed M.O'Murphy for Circle Technology Ltd 3.7.99"
. The agreement between CT and Eaglecliff remained unaltered but the next schedule contained as the new work location, Hewlett Packard premises in Bristol.[13]However, there was a new contract between Hewlett Packard and Eaglecliff with material differences to the earlier contract. In that, Eaglecliff was described as a "company" and Hewlett Packard as their "client".[14]Eaglecliff agreed to provide computer personnel described as "staff".[15]In the extended reasons the Tribunal reproduced some of the provisions of the first agreement. We add the clause numbers which do not appear in the reasons:
"2.1 At no time will the staff be deemed to be employees of the client. 5.1 Staff provided in accordance with this agreement will be under control of the client regarding performance and discipline and shall obey all reasonable and lawful instructions given by the client. 5.3 The client shall provide suitable office accommodation and other reasonable facilities that may be requested in the course of normal business activities and will exercise the same duty of care towards the staff as is applicable at law between an employer and an employee..."
[16]The reasons do not refer to the change in the contractual arrangements between Hewlett Packard and Eaglecliff and proceed on the basis that the terms and conditions between them were those quoted in paragraph 10 and were constant throughout the period that Mr O'Murphy worked at Hewlett Packard's premises.[17]The new agreement described Eaglecliff as "t he contractor" and provided that Eaglecliff would render to Hewlett Packard the services described in the schedule to the agreement, namely the provision of application support engineer services. They could carry out this work by themselves, their servants or agents.[18]Clause D of the schedule headed 'Authorised Personnel' provided:
"Martin O'Murphy or such other personnel as may be reasonably agreed by HP"
The agreement, as did the previous agreement, provided for the payment of fees to Eaglecliff for work done, payments being made within 30 days of receipt of Eaglecliff's invoice supported by all necessary vouchers and time sheets.[19]It is not necessary to read all the clauses of this agreement but two are material:
"9.1 The contractor, its servants or agents when employed on the premises of HP or HP's customer shall comply with such rules, regulations and requirements (including those relating to security arrangements) as may be in force for the time being for the conduct of personnel on those premises"
. And clause 11 headed 'Status of the Contractor': "11.1 The relationship of the contractor to HP shall be that of independent contractor and not of employee or agent. As a result HP shall not be responsible for the payment or deduction of any amount whatsoever required by law to be made by an employer in relation to its employees. At no time shall either party represent to any third party that it is the agent of the other for any reason whatsoever. In no event shall either party at any time have authority to make any contracts or commitments on behalf of, or as agent for the other party".[20]There were thus four parties: Hewlett Packard, Eaglecliff, CT, and Mr O'Murphy. In summary, the contractual arrangements entered into resulted in Eaglecliff agreeing to carry out work for Hewlett Packard for which they would be paid a fee with VAT added. In turn when Eaglecliff employed CT to carry out this work for a fee with VAT added, Mr O'Murphy, as an employee of CT, carried out the work in turn receiving his remuneration from CT.[21]There was no contractual nexus between Hewlett Packard and Mr O'Murphy except for the confidentiality undertaking and agreement we have described. That was on Eaglecliff's printed paper with only Mr O'Murphy's signature on it.[22]Mr O'Murphy worked at the Bristol site until the end of October 2000. In a letter to Eaglecliff of 27 October 2000, Hewlett Packard wrote:
"The contract termination date for Martin's assignment with you will be of immediate effect"
. The letter went on to say quoting from clause 9.3 from the agreement that in Hewlett Packard's opinion he was incapable of efficiently performing the work they expected him to carry out. The same day Eaglecliff wrote to Hewlett Packard and confirmed that the contract termination date for Mr O'Murphy's assignment with Hewlett Packard would be with immediate effect. They also wrote the same day to Mr O'Murphy as a director of CT confirming the contract termination date for his assignment with Hewlett Packard as being from immediate effect and invoked clause 7.1 of the agreement between them.[23]The Tribunal described his work for Hewlett Packard in these terms: in paragraph 9 of the reasons: "Throughout the period, he worked as part of a team, which included some direct employees of the respondent. His job description (as contract business migration support engineer) remained unaltered. The work he undertook altered in response to the needs of the respondent. The work he did was strictly controlled by the respondent. His line manager was a manger employed by the respondent. If he was away sick, he reported to his line manager, and not the Agency. If he wished to take a holiday, he arranged it with his line manager and not the Agency. The Agency had no knowledge or interest in such matters. When he was absent, for whatever reason, he was not asked nor required to provide an alternative; his work was absorbed by the respondent. His daily expectation for the duration of the term of his contract was that he should be provided with work and paid for the work he did: that expectation was fulfilled throughout. The Agency, once they had introduced him to the respondent in 1994, took no further part in the working relationship between the applicant and the respondent, such interest as they had was limited to informal chats with the applicant and the processing of payment invoices out of which they retained commission. We find that the informal chats that the Agency had with the applicant were relative to the Agency's contract with the respondent, rather than any direct obligation, actual or perceived, that the Agency might have had to the applicant".[24]Before the Tribunal Hewlett Packard relied on a number of facts and matters which the Tribunal records at paragraph 12. They are: "12. The respondent's representative drew our attention to a number of additional facts relative to the working relationship between the parties for us to consider, namely:(a) He was expected to use his own initiative in problem solving.(b) His work was only followed up if problems were not resolved within 20 days.(c) His work was not managed on a day-to-day basis except where the team performed important tasks that required input from other members of the team.(d) He received no formal appraisals.(e) He was not paid holiday or sick pay.(f) He was part of a team whose work was of limited duration.(g) His expense claims were reimbursed via the Agency.(h) Name tags and the like distinguished him from employees.(i) His induction pack differed from the employees induction pack.(j) He was not sent on external courses.(k) He did not attend weekly team meetings.(l) He was paid significantly more than employees.(m) The respondent had a full-time employee to co-ordinate contractors.(n) He recorded his time spent.(o) He had no peripheral benefits such as medical insurance, life insurance etc.(p) Termination of his contract was dealt with via the Agency.(q) The respondent trains managers on the legal status of contractors.(r) The respondent saw no obligation to give the applicant training.(s) The respondent spent more management time with employees.[25]In arriving at its decision the Tribunal referred to 14 decided cases which it either summarised or distinguished and prefaced their consideration by reference to Hall (Inspector of Taxes) v. Lorimar 1994 ICR 218 where at 226 Lord Justice Nolan quoted and agreed with the views expressed by Mr Justice Mummery at first instance. We quote part of that judgment: "In order to decide whether a person carries on a business on his own account it is necessary to consider many different aspects of that persons 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".[26]A critical passage in the reasoning of the Tribunal comes in para 16: "We deal with the individual issues as follows. The indications of a contract for service we find to be these.(1) Control. The applicant was, as a matter of fact and contract, controlled by the respondent. Insofar as he was given freedom in the work that he undertook, that freedom was no more than would be expected of an experienced and skilled worker, whether contractor or employee. In view of the strict procedures which he had to undertake in order to complete his tasks, those procedures being prepared by the respondent and monitored by them, any freedom in the work that he undertook was strictly limited and insofar as it existed at all, was insufficient to contraindicate a contract of service.(2) Mutuality of obligation. During the course of each assignment, the respondent undertook to provide work for the applicant and to pay him for that work and the applicant undertook to carry out work assigned to him. Further, there is implied into that contract a mutual obligation of trust and confidence. The direct undertaking as to confidentiality entered into between the applicant and the respondent confirms, in our view, the mutuality of obligation between the applicant and the respondent.(3) The respondent, not only in 1995 but Also in the 1999 move to Bristol, wanted the personal services of the applicant: they appreciated and required his particular experience and skill. They did not want any contractor provided by the Agency. That fact is supported by the respondent not seeking a replacement for the applicant when he was absent though illness or holiday, the respondent taking on the responsibility for the continuation of the applicant's work on those occasions. This, in our view, is a significant factor in our assessment of the position.(4) The applicant had worked continuously for the respondent for a number of years. He worked as part of a team and was, as a result, significantly integrated into the work and staff of the respondent. His treatment, in terms of the working relationship with the respondent, was, for practical purposes, indistinguishable to the treatment given to full-time employees of the respondent.[27]They then dealt with the factors which:
"point to a contract for services (sic)"
The Tribunal reminded themselves that Mr O'Murphy was paid through CT and the Agency and his remuneration was subjected to VAT and continued:
"we find that the existence of CT was no more than for administrative purposes and had no material impact on the relationship between the applicant and either the Agency or the respondent"
. Then they made this important finding:
"further we find that the Agency was the agent of the respondent and, accordingly, payment by the agent to the applicant of his remuneration was payment by the respondent"
. They returned to the question of Agency again in paragraph 18(11):
"termination of the contract is dealt with via the agency. Since the agency was the agent of the respondent, and since the agency never exercises discretion to terminate otherwise, and at the behest of the respondent, this, for other reasons dealt with previously is not in our view a contraindication"
. The Tribunal referred in paragraph 17(2) to the fact that Mr O'Murphy received no holiday or holiday pay or sick pay. The exclusion of sick pay is not a contraindication of a contract for service. The lack of a paid holiday is a contraindication but when put in a balance against the other factors it is not decisive.[28]The Tribunal then referred to the long list of matters relied on by Hewlett Packard as contraindications to a contract of service. We do not set them out again but they were regarded by the Tribunal as being either matters of management style, administrative or cosmetic.[29]Putting all these matters in balance, all these matters did not outweigh the indicators of a contract of service. The unanimous view of the Tribunal was that Mr O'Murphy was the employee of Hewlett Packard throughout the period from 1994 to 23 October 2000.[30]Miss Rose, for Hewlett Packard, makes a three-fold attack on the reasons: firstly, the Tribunal erred in law in failing to consider or resolving whether there was a contract of any kind between Hewlett Packard and Mr O'Murphy. Secondly, the Tribunal erred in law in its construction of the written agreements between the parties and thirdly, it erred in law in concluding there was a contract of employment between Hewlett Packard and Mr O'Murphy.[31]She submitted that in many cases, there is no issue as to whether there was a contract between the parties. The issue in those cases is; what was the nature of the contract? This was the position in the most frequently cited decision in this field, Ready Mixed Contract Southeast Ltd v. Minister of Pensions and National Insurance 1968 2QB 497 . Here Mr Justice Mackenna described the three conditions to be fulfilled if there was to be a contract of service. There was no doubt in that case that there was a contract in force, in writing between Ready Mixed Concrete and the worker concerned. Here, the first question which the Tribunal had to decide was whether there was a contract at all between Mr O'Murphy and Hewlett Packard before considering what sort of contract it was. That submission was in the forefront of the submissions made to the Tribunal by counsel then appearing for Hewlett Packard. Miss Rose relied on the decision of the EAT in Costain Building and Civil Engineering Ltd v. Smith 2000 ICR 215 . The Tribunal had wrongly discounted the relevance of that decision by saying that it turned on its own facts. Costain v. Smith was a case with similar, although not identical, facts. She referred to the judgment of Mr Justice Morrison at paragraph 15: "...we have no doubt the Tribunal did err in law in finding that the applicant was an employee of the contractors. There were two relevant contracts which covered the responsibilities of the parties to this case: there was a contract between the agency and the contractors and a contract between the agency and the applicant. There was not however, any contract of employment between the contractors and the applicant. 16. We are of the opinion that the essential facts in this case are clear: the applicant chose to operate on a self-employed agent basis as he was paid tax free and had to submit invoices to the agency. He did not receive holiday or sick pay, had no notice provisions and was provided with no other benefits associated with being an employee. By determining that the applicant's position of self employment was "a device" used by the contractors to avoid their statutory duty, we consider that the Tribunal lost sight of the facts that clearly indicated that the applicant could not be an employee of the contractors".[32]Miss Rose submitted that there were here none of the usual signs of a contract such as proof of an intention to enter into legal relations, mutuality of obligation and consideration.[33]The Employment Tribunal did not address this question at all. They appear to have assumed that there was a contract and proceeded to the next stage of deciding what sort of contract it was. This was a serious flaw in their reasoning.[34]Miss Rose submitted further that the Employment Tribunal were too dismissive of the contractual arrangements which could be identified from the various contractual documents before them.[35]Miss Rose referred us to the case of the Secretary of State for Education and Employment -v- Bearman 1998 IRLR 431. In that case the applicants who were disabled entered into a contract of service with the Royal British Legion Industries and were placed with a host organisation ,in this case the Employment Service. There they were integrated as fully as possible into the host's work force and both the contract of employment showed the RBLI as employer of the applicants. Although they were paid by the Employment Service they were not entitled to a civil service pension, they were not entitled to sickness pay, and travel expenses were paid in a different manner. Each was promoted by the Employment Service during the course of their employment but a fresh contract of employment had to be issued by RBLI. Grievance procedures were taken through the RBLI. Only the RBLI could dismiss the applicants and they only were responsible for making redundancy payments to them. Challenging a decision of a Chairman of an Employment Tribunal the applicants were employed by the Employment Service Mr Elias QC made submissions which are identical to those made by Miss Rose:
"The Industrial Tribunal must have inferred a contractual relationship which was inconsistent with the express agreement between the three parties and concluded that such a contract was a contract of employment. Of course the label applied by the parties to describe their relationship would not be determinative. But here the label was not a matter of form but substance. The question at issue is whether there was any contractual relationship between the applicants and the Employment Service. It is a pure question of law and has not been properly answered by the Industrial Tribunal Chairman who has "assumed" such a contract without any rational basis for it."
That argument succeeded before the Employment Appeal Tribunal. Mr

Justice Morrison said at paragraph 22:

"it seems to us the correct approach would have been to start with the written contractual arrangements and to have enquired whether they truly reflected the intention of the parties. If they did the next question was whether on the commencement of their employment the applicants were the employees of the Employment Service or employees of RBLI. If the conclusion was that when properly construed on commencement of their employment the applicants were employed by RBLI, then the Chairman ought to have gone on to ask the question did that position change and if so how and when."
[36]Next Miss Rose submitted that the Tribunal were wrong in law to infer a contractual situation arose between Hewlett Packard and Mr O'Murphy because he did work for Hewlett Packard and was paid for it. What was missing, submitted Miss Rose, was the element of mutual obligation. What was inescapable from the contracts entered into was that Mr O'Murphy only worked at Hewlett Packard's premises because the company which controlled his activities, CT, had contracted with Eaglecliff to provide them, and he was only paid because Eaglecliff were paid by Hewlett Packard under their contract with them.[37]Finally Miss Rose submitted that the Tribunal were wrong to conclude that Eaglecliff was the agent of Hewlett Packard so that not only was the payment by Eaglecliff to Mr O'Murphy a payment by Hewlett Packard, but that Eaglecliff terminated Mr O'Murphy's appointment at agents for HP.[38]There was no proper legal or factual basis on which the Tribunal was entitled simply to ignore the existence of CT and they were wrong to find the existence of CT was no more than for administrative purposes and had no material impact on the relationship between Mr O'Murphy and Eaglecliff or HP.[39]The Agency formed no part of Mr O'Murphy's case until during the hearing the Chairman raised it and then Mr Antell, his advocate adopted it. Mr Antell told us that he could not remember whether in this connection he drew Clause 11 of the new agreement between Hewlett Packard and Eaglecliff to the attention of the Tribunal. He assumed that he did. If he did, Miss Rose submitted, it made no impression on the Tribunal as it was not mentioned in their reasons.[40]Mr Antell submitted that there was no need for the Tribunal to ask itself whether there was a contract between Hewlett Packard and Mr O'Murphy. They were entitled to go straight to the three questions identified by Mr Justice McKenna in Ready Mixed Concrete. There was ample material on which they could come to the conclusion that there was a contract of employment between Mr O'Murphy and Hewlett Packard. The finding that a contract of employment exists necessarily includes a finding that a contract exists and this does not have to be spelt out as a separate finding.[41]He submitted that it was clear that the Tribunal had considered contractual documentation. The legal "label" which the parties put on their relationship is not conclusive, a fortiori the label which they put on others relationship cannot be conclusive and the Tribunal correctly directed itself to this effect.[42]He argued in the alternative that even if the documentation did show by the two agreements that Mr O'Murphy would not be an employee of Hewlett Packard any initial agreement could be varied by subsequent oral agreement or by conduct and it was a question of fact for the Tribunal whether or not the written documentation contained the exclusive record of the terms of an agreement: see Carmichael -v- National Power plc 1999 ICR 1226 . It was also a question of fact for the Tribunal whether the terms of the agreement had been subsequently varied or enlarged. He submitted that the Tribunal rightly directed itself to that effect in paragraph 14 D of the reasons. Paragraph 14 D contains the Tribunal's summary of the effect of Carmichael -v- National Power: "It establishes that the evidence of the parties as to their understanding of their respective obligations together with the evidence of all exchanges and conduct is relevant to extend or alter the terms of a written contract".[43]He submitted that when the Tribunal were considering whether in accordance with Ready Mix Concrete there was mutuality obligation their response at 16.2 represented a finding of fact that there was a contract. That finding is:
"the Respondent undertook to provide work for the applicant and to pay him for that work and the applicant undertook to carry out work assigned to him"
. Decision[44]We are unanimous here of the view that the decision of the Employment Tribunal is wrong as a matter of law and cannot stand.[45]In the first place Miss Rose is right when she submits that in a case of this kind the task of the Tribunal is to ascertain whether there was a contract of any kind between the applicant and respondent. If the applicant fails to satisfy the Tribunal of that that is an end of a claim based on assertion that he had entered into or worked under a contract of employment within the meaning of Section 230 Employment Rights Act 1996.[46]If the Tribunal had asked itself that question and answered it in accordance with the evidence it would we think be bound to have come to the conclusion that there was no contractual nexus between Mr O'Murphy and Hewlett Packard. No suggestion was made that these were not genuine contracts entered into contemporaneously. In those circumstances they could not be dismissed as the Tribunal dismissed them of no materiality. It was unfortunate that the Tribunal did not feel able to derive benefit from a consideration of Costain -v- Smith. For while it is true that the case turned on its own particular facts as nearly all cases do, the similarities with the instant case were considerable. There were two relevant contracts which governed the responsibilities of the parties in the case, a contract between the agency and the contractors and a contract between the agency and the applicant. There was not any contract of employment between the contractors and the applicant. Mr Smith worked as an engineer on Costain's' building site and was paid. However he worked there because he was hired out by the agency and paid by them and not because of any contractual connection with Costain. With the only difference that the worker worked through a limited company controlled by him the facts in the instant case are remarkably similar. We think that further consideration of that case might have caused the Employment Tribunal to hesitate before being so dismissive of the contractual arrangements in this case.[47]This case is an illustration and there are many examples in the decided cases and countless numbers in working practise where an individual whether directly or through his own limited company has hired himself out through the machinery of an agency to a third party. He has done so for his own purposes and no doubt for fiscal advantage. For reasons which no doubt are advantageous to them Hewlett Packard were content to have him work for them so long as he was not a permanent employee.[48]The Tribunal were of course right in their statement in paragraph 15 B that they can disregard a contractual label. However reference to Massey -v- Crown Life Insurance relied on by Mr Antell shows that that statement must be qualified at 597 Lord Justice Lawton said "Ferguson -v- John Dawson and Partners 1976 1 WLR 1213 clearly established that the parties cannot change a status merely by putting a new label on it. But if in all the circumstances of the case during the terms of the agreement it is manifest that there was an intention to change status then in my judgment there is no reason why the party should not be allowed to make a change".[49]It is clear from that and from the judgment of Lord Denning MR in Massey that whatever the label the court must examine the true nature of the relationship and the terms of the agreement must be looked at. The Tribunal were clearly influenced by the fact that Mr O'Murphy had been integrated into Hewlett Packard's workforce. This argument was considered by Mr

Justice Morrison in Bearman where he said this:

"The fact that they were to be "integrated" so as to become part of the team says nothing we think to indicate a change of position: In the circumstances of this case integration was consistent with either basis of employment."
[50]Mr Antell's argument that the contract can be spelt out at the finding we have referred to in paragraph 16.2 cannot succeed. The work and payment are not in dispute but what was disputed was whether they rose by way of mutual obligation which they clearly did not.[51]Equally Mr Antell's argument the contract was varied is untenable. There was no contract between Mr O'Murphy and Hewlett Packard and so that could not be varied. We asked Mr Antell which contract was varied and he submitted both contracts between Hewlett Packard and Eaglecliff and Eaglecliff and CT. However there is no justification on the evidence as to this. Variation was not argued before the Tribunal and they made no finding upon it.[52]Finally the Tribunal was not entitled to come to a conclusion on the material before them that Eaglecliff was Hewlett Packard's agent. There is no evidence to support that finding and the evidence in fact pointed strongly away from it. The Tribunal clearly did not have Clause 11.1 in mind. They did not refer to it and it is apparent that the whole of their consideration of the agreements was based on the erroneous assumption that the first agreement remained in force throughout the whole period. Clause 11.1 is to be found in the second and superseding agreement. If the Tribunal had considered it they could not in our view have come to the conclusion that Eaglecliff were the agents of Hewlett Packard for any purpose. That fundamentally undermines their finding in paragraph 17 that Mr O'Murphy was paid by Hewlett Packard through the agency of Eaglecliff and again in 18(11) that Eaglecliff terminated a contract as agents for Hewlett Packard. Result[53]The decision that Mr O'Murphy was an employee of Hewlett Packard cannot stand.[54]On the material before them the only conclusion which the Employment Tribunal could have come to was that he was not employed by Hewlett Packard and the appeal will be allowed with the result that the application based on employment by Hewlett Packard must fail.