MR G ROBINSON v HIGHSWAN ASSOCIATES T/A THE REPUBLIC NIGHT-CLUB MR SIMON RAINES 3) MR NEIL MIDGLEY [2002] UKEAT 1020_01_3101

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1020_01_3101

Case No Appeal No. EAT/1020/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR G ROBINSONAPPELLANT

HIGHSWAN ASSOCIATES T/A THE REPUBLIC NIGHT-CLUB MR SIMON RAINES 3) MR NEIL MIDGLEYRESPONDENT

Before

Mr Recorder Burke

Date 31 January 2002

[1]APPEARANCES For the Appellant Mr DAVID NYE (Representative) Sheffield Racial Equality Council Norfolk Chambers 9 – 11 Norfolk Row Sheffield S1 2PA MR RECORDER BURKE QC This is the Preliminary Hearing of an appeal by Mr Robinson against the decision of the Employment Tribunal at Sheffield, chaired by Mr Glossop, and promulgated with extended reasons on the 14 th July of last year. Mr Robinson claimed that he had been unfairly dismissed by and had been the subject of racial discrimination at the hands of the Respondents who he alleged to be his employers.

[2]The Respondents in their IT3, among other points, raised the point that Mr Robinson was not an employee and therefore had no right to pursue a claim in the Tribunal either for unfair dismissal or for race discrimination. The Tribunal therefore held a hearing to determine as a preliminary issue whether Mr Robinson was an employee under the terms of the Employment Rights Act 1996 or under the terms of the Race Relations Act 1976 . It decided unanimously that he was not an employee for the purposes of either Act. Mr Robinson seeks now to appeal against that decision, only in relation to that decision in so far as it determined his status under the Race Relations Act 1976 , the terms of which of course, so far as the relevant issue is concerned, are substantially different from those of the Employment Rights Act 1996 .

[3]We have looked at Mr Nye's detailed Notice of Appeal and have come to the conclusion that the grounds which he there sets out do constitute an arguable case which should go forward to a full hearing. In particular we would indicate that it is arguable that the Tribunal failed to follow the guidance referred to in paragraph 1 (b) of the Notice of Appeal by considering what was the dominant purpose of the contract between the parties; and it is also arguable, as identified in paragraph 1 (e) of the Notice of Appeal, that the Tribunal paid excessive attention, when they should not have done, to the fact that the Applicant could have sent a substitute to do the work which he had contracted with the Respondents to carry out. For those reasons, as we have said, we believe that there is an arguable case and this case will go forward to a full hearing. Category C, time 2 hours, usual directions to apply.