THE TRUSTEES OF THE GHAUSIA JAMIA MOSQUE AND WELFARE ASSOCIATION v MR M A QAMAR [2001] UKEAT 899_01_0612

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 899_01_0612

Case No Appeal No. EAT/899/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

THE TRUSTEES OF THE GHAUSIA JAMIA MOSQUE AND WELFARE ASSOCIATIONAPPELLANT

MR M A QAMARRESPONDENT

Before

His Honour Judge D M Levy

Lord Davies of Coity

Date 6 December 2001

[1]APPEARANCES For the Appellant MR M A KHAN (of Counsel) Instructed by: Mr J A Smith Messrs Higgs & Son Solicitors 31 Wolverhampton Street Dudley West Midlands DY1 1EY JUDGE D M LEVY QC This is an appeal by the Trustees of the Ghausia Jamia Mosque and Welfare Association. The Respondent to the appeal is Mr M A Qamar ("the Respondent"). The appeal arises in the following circumstances. By an Originating Application dated 11 February 1999, the Respondent to the appeal alleged that he was in the employment of the Appellant and he had been unfairly dismissed.

[2]The Respondent's Notice of Appearance, submitted on 8 March 1999, accepted that there was a contract of employment and said, in paragraph 14, that there was a fair reason for dismissal, namely conduct. The hearing at an Employment Tribunal was on 13 July, 7 and 9 November 2000 and 20 and 21 February 2001. Then Counsel appeared for the Respondent, and a solicitor appeared for the Appellant. The unanimous Decision of the Tribunal promulgated on 11 June 2001, was that the Respondent was an employee within the meaning of section 230 of the Employment Rights Act 1996 and was entitled to proceed with his claim for unfair dismissal.

[3]A Notice of Appeal was lodged, dated 23 July 2001 on which was the name of the solicitors who acted for the Appellant below. The grounds of the appeal are these:

"a. At paragraph 37 of the decision the employment tribunal rightly refers to the case of Santokh Singh -v- Guru Nanak Gurdwara [1990] ICR 309 and in particular refers to page 314 of the decision. In particular the tribunal quotes as follows:- "….on the totality of the evidence the Applicant was not an employee of the (temple). The relations between the Applicant as a Priest or Granthi and the (temple) as a religious institution, were not governed by a contract of employment or service, but arose from his status as a Minister of Religion performing work of a spiritual nature as part of his vocation and religious duties. On that basis we consider the case to be on all fours with the principal set out by the House of Lords in Davies and the Court of Appeal in Parfitt and therefore this application is dismissed."

At paragraph 17 of the decision the tribunal sets out the duties performed by the Respondent. It is clear from the duties set out by the tribunal in paragraph 17 that they are in the nature of the duties referred to in the Santokh Singh case and in particular the reference referred to by the tribunal in paragraph 37 of its decision. Therefore, for the tribunal to reach the conclusion set out in paragraph 52 of its decision was perverse and wrong in law." We pause there to say that as appears from the very first sentence quoted from the Decision in Santokh Singh , the Decision was, on the totality of the evidence, that the Applicant was not an employee of the temple.

[4]Mr M A Khan, (Counsel for the Appellant) who did not appear below, has referred us to two other decisions which he submitted that the Tribunal ignored. It is quite clear to us, from having carefully read the Extended Reasons of the Tribunal, that they had well in mind the cases which were cited to them which are set out in paragraph 29 of the Extended Reasons, and it is quite clear that whether somebody in the nature of a priest is or is not an employee depends on the facts, and the particulars of the particular case. We certainly do not accept the submission that the Tribunal's decision was perverse.

[5]The second ground of appeal is as follows:

"b. At paragraph 39 of its decision the tribunal refers to the case of Birmingham Mosque Trust Limited -v- Alavi [1992] ICR 435. In the course of this paragraph the tribunal sets out the brief facts of the case involving Dr Alavi. At paragraph 57 of its decision the tribunal makes further reference to the Alavi decision and seeks to compare the facts of the Alavi case to that of the Respondent. The tribunal concludes that the position of the Respondent was of "much more administrative and routine nature than that of Dr Alavi"……"he merely carried out certain routine duties, within the confines of Islamic law teachings and practice."

The conclusions drawn by the tribunal in paragraph 57 of its decision having regard to its reference to the Alavi decision are perverse. It is respectfully submitted that if one looks at the facts set out in relation to the Alavi decision in paragraph 39 that the factors set out in that paragraph point more towards a relationship of employee and employer rather than the facts set out by the tribunal both in paragraph 17 of its decision and its reference in paragraph 57 as quoted above. It is therefore submitted on behalf of the Appellant that the tribunal in reaching a conclusion which is contradictory to the matters it had already referred to was perverse and also an error in law."

[6]We have looked at the way the Tribunal dealt with the Decision in the Birmingham Mosque Trust case and the way it was distinguished. In our judgment, it was a distinction of the Tribunal that it was entirely entitled to make. As we have already said, it is a question of fact in each case for a Tribunal to decide whether or not someone is an employee.

[7]Other grounds were taken by Mr Khan, both in his Skeleton Argument and in his oral submissions to us, but they were not grounds which were within the grounds of appeal which were lodged. Neither of the grounds of appeal which were lodged in any way suggest to us that the Decision of the Tribunal which was well set out and well argued was wrong in any part, which would lead us to query the conclusion to which they were entitled to come, that the Respondent was an employee.

[8]The Respondent has not appeared on this appeal because he was debarred from so doing, because he had not sent in the appropriate form after several warnings, but that makes no difference, of course, to our considering the appeal on its merit, and having considered the appeal on its merits, we are satisfied that the Decision of the Tribunal below, on the facts which it found, is right. Accordingly, we dismiss this appeal.