MR J M WILLIAMS v HEWLETT PACKARD LTD CERTES COMPUTING LTD [2002] UKEAT 1437_01_0603

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1437_01_0603

Case No Appeal No. EAT/1437/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR J M WILLIAMSAPPELLANT

HEWLETT PACKARD LTD CERTES COMPUTING LTDRESPONDENT

Before

Mr Justice Lindsay

Date 6 March 2002

[1]APPEARANCES For the Appellant MR NEIL TREHARNE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) : We have before us, by way of a preliminary hearing, the appeal of Mr John M. Williams in the matter J.M. Williams against Hewlett Packard Ltd as First Respondent and Certes Computing Ltd as Second Respondent. This morning Mr Treharne has appeared under the ELAAS system to assist Mr Williams and we are grateful for the help he has given, both to us and to Mr Williams.

[2]On 3 November 2000 Mr Williams issued an IT1 against Hewlett Packard in the first place. He said that he had been employed by them from 18 November 1996 to 27 October 2000 but, to judge from the way he put things in his IT1, it looked as if there was going to be an issue as to whether he had been self-employed or not employed by either of the Respondents. One can see that coming, so to speak, as an issue that was going to arise. He said:

"1 Hewlett Packard informed me that there was insufficient work to justify my continued employment with them. I was selected, despite there being two other workers in the section with considerably less service within Hewlett Packard than my own four years service. No attempt was made to find me alternative employment in another section. 2 No severance or redundancy pay, or compensation of any kind was given. 3 I have not been able to find out any other specific reasons for my dismissal."

That, as I say, was 3 November 2000. By 28 March 2001 Certes Computing had come in as a party and they put in an IT3. They said, of themselves:

"1 The Second Respondent is an IT Recruitment Agency 2 Between November 1996 and July 2000 the Second Respondent entered into agreements in writing with a private limited liability company known as JMW Software Services Limited [and one can see at a glance JMW, of course, is John Martin Williams] and the Applicant for the supply of the services of an 'approved consultant' as defined therein. The agreements provided, inter alia, that no contract of employment existed between JMW Software Services Limited, the Applicant and the Second Respondent and that the agreements were terminable on four weeks' notice. The Second Respondent will refer to the agreements for their full terms and effect at the hearing of the application herein."

And then, at the end of their IT3, they said:

"7 In the premises the Second Respondent avers that the Employment Tribunal has no jurisdiction in relation to the Applicant's claim."

So that was the attitude that Certes were taking.

[3]On 29 March there was an IT3 put in by the other Respondent, Hewlett Packard; they said:

"2 The Applicant was not an employee of the First Respondent and consequently may not bring an unfair dismissal claim against the First Respondent. The Applicant's services were supplied to the First Respondent by the Second Respondent under a series of Professional Services Agreements. 3 The First Respondent avers that the Applicant is either: (i) an employee of his personal service company, JMW Software Limited, or (ii) self employed or (iii) is an employee of the Second Respondent, but he is not an employee of the First Respondent."

So one can see how the issues were lining up.

[4]On 26 April 2001 there was a directions hearing, it would seem - we have not actually got the papers in relation to that - and there was directed to be a preliminary issue simply to determine whether Mr Williams was an employee of Hewlett Packard or of Certes or of neither.

[5]Then, on 26 April and 29 June 2001, there were two days of hearing at Cardiff. On 12 October 2001 the Decision was sent to the parties. It was the Decision of a Tribunal sitting under the chairmanship of Mr J. Thomas and it was:

"The unanimous decision of the Tribunal is that: (i) The Applicant was not employed under a contract of employment within the provisions of Section 230 of the Employment Rights Act 1996 with the First Respondent [Hewlett Packard] and the claim fails. (ii) By consent the Second Respondent [Certes] is dismissed."

[6]On 19 November 2001 a Notice of Appeal was received but before we get to that it might be wise to set the scene, so to speak, by looking at some of the findings which the Tribunal had arrived at in the course of their Extended Reasons. In their paragraphs 9 and 10, they said:

"9 The Applicant [Mr Williams] was an experienced and competent computer engineer. His particular role was in a support function for the First Respondents. He is an employee of his own private limited company JMW Software Services ("

JMW"). He together with his wife are directors of that company. The company supplies the services of the Applicant for which he receives remuneration of approximately £9,000 paid to him by his company in the form of a salary from a payment to the company by Certes who invoice HP [Hewlett Packard] [for] approximately £50,000. 10 Between November 1996 and July 2000 (and subsequent extensions until the termination of the contract in January 2001) the Applicant via JMW entered into written agreements with Certes Computing Ltd ("Certes") for the supply of the services of an approved consultant." A little later, in paragraph 12, they say, quoting from an agreement:

"… these terms and conditions constituted an agreement between the company and the contractor for the supply of services of an approved consultant (all of which terms are defined in the confirmation of contract details attached hereto). This agreement shall not be construed as a contract of employment either with the contractor or the approved consultant."

Later, in paragraph 12, they say:

"For definitions it is provided that 'the approved consultant shall be the person approved by the company for the purpose of supplying to the customer the services covered by this agreement or such other person as may be nominated and agreed from time to time."

In paragraph 20, the Tribunal said:

"20 Over this period the Applicant did no work other than for Certes/HP."

And then, in paragraph 25, they say:

"25 Remuneration was calculated by the Applicant completing time sheets which were submitted to Certes who subsequently submitted invoices including VAT and their own fee to HP for payment. HP then paid Certes who then paid JWS [sic] without deduction for income tax or national insurance. The Applicant was then paid a salary by his company. 26 Under the contractual provisions involving notice … HP were entitled to terminate on giving the appropriate notice. In this case we are satisfied that HP did follow all the contractual procedures to terminate the appointment of Mr Williams. We accept the evidence of Mr Lanning and Miss Parfitt in this respect. There is no reason that we can find to dispute it. …"

And then in their paragraph 31, they say:

"31 We are satisfied having read the e-mails following the intervention of the Inland Revenue and their enquiries as to the status of the Applicant that what the Applicant was seeking to do was to avoid any finding by the Inland Revenue that he was an employee. It is clear from the tenor and nature of those exchanges that the Applicant was seeking to strengthen his claim for self-employed status. …"

[7]That gives something of the nature of the findings of the Employment Tribunal. In his skeleton argument, which Mr Williams had prepared himself before Mr Treharne came in to assist him, he takes each of a number of headings of the Notice of Appeal and expands on them, one at a time. In the course of doing so, it is fair to say, he sows some seeds of doubt as to the correctness of the Tribunal's decision and, in particular, it seems to us, he touches on the six particular issues which we must comment on.

[8]First of all, he says that the contracts made by Certes, both with Hewlett Packard and, as it would seem, with either himself or JMW Software Services Ltd, "specifically state that the services were to be provided by myself personally". That is one consideration.

[9]Secondly, he says that the invoices from Certes to Hewlett Packard were invariably expressed as having been for Mr Williams's personal services.

[10]Thirdly, he says, or seems to say, that it was not only JMW Software Ltd that contracted with Certes but that he personally also contracted with Certes.

[11]Fourthly, he says that Hewlett Packard accepted in evidence at the Employment Tribunal that Hewlett Packard would not accept anyone but him as a substitute for him. That is not something which is determinative in any way but it might be material.

[12]Fifthly, he says that he was required to attend 37 hours a week, but a difficulty there is to whom was he required to serve in that way?

[13]Sixthly, he asserts that the evidence given included that a move was required of him by a Sara Colombini and a Keith Smith, both on behalf of Hewlett Packard, and that when he asked whether Certes had agreed to the move or had been consulted in respect of the move, those employees of Hewlett Packard said, in effect, that Certes had no control over the move, it was not a matter for them. Mr Williams rightly says that this is not mentioned in the findings of the Tribunal; it is completely unmentioned and yet, he says, it may well be a material factor in looking at who controlled his movements.

[14]The difficulty we have in relation to all of those points is that we do not have the contracts that apparently were in front of the Employment Tribunal, so we cannot tell how accurate Mr Williams's recollection is, either of the contractual matters or, indeed, of the evidence given at the Employment Tribunal.

[15]It could be that allowing the matter to go a full hearing raises false hopes in Mr Williams in this area which is a perennial area of difficulty. Even this year, in the IRLR, there is a report of a case Hewlett Packard v O'Murphy

[2002] IRLR page 4

, that involves the very same company, Hewlett Packard, a decision of the Employment Appeal Tribunal sitting under Douglas Brown J, where they held that the employee was not an employee after all and consideration will need to be given to that case in the course of going forward but it was with another body than Certes Computing Ltd and, of course, another body than Mr Williams, and it does look as if the contractual forms used in that case might well have been different from the contractual forms used in the case that is before us.

[16]So there are going to be difficulties in Mr Williams's way and, as we say, we do not want to raise false hopes, but we do think that the six points together that we have mentioned raise arguable issues of law proper to go to a full hearing and so we shall permit the whole of the Notice of Appeal to go to a full hearing, but there are some conditions that we need to make clear.

[17]First of all, the Employment Appeal Tribunal must have laid before it every contract that was laid before the Employment Tribunal. Secondly, if there are any other contracts made in any combination between Mr Williams, JMW Software Ltd, Certes and Hewlett Packard that were not laid in front of the Employment Tribunal then that too, or those too, will need to be produced, that is to say, contracts over the period from November 1996 to October 2000.

[18]Next, as Mr Treharne rightly says, we do see it as a case where the Chairman's notes are going to be necessary. Unfortunately, it does not look as if we can focus in on some particular passages of the Chairman's notes and we think it is appropriate, therefore, that the Chairman's notes of the whole of the oral evidence will be desirable and the Employment Appeal Tribunal will make a request in that behalf to the Chairman.

[19]All written evidence that was put in below will need to be produced to the Employment Appeal Tribunal. Skeleton arguments are to be sent to the Employment Appeal Tribunal and exchanged between the parties not less than 14 days before the date fixed for the hearing. We see it as a matter of Category B and give a time estimate of two hours.