MS P DACAS v (1) BROOK STREET BUREAU (UK) LTD (2) WANDSWORTH LONDON BOROUGH COUNCIL [2002] UKEAT 492_02_1112

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 492_02_1112Case No Appeal No. EAT/492/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS P DACASAPPELLANT(1) BROOK STREET BUREAU (UK) LTD (2) WANDSWORTH LONDON BOROUGH COUNCILRESPONDENTS
Before
Mr Justice BurtonDate 11 December 2002
[1]APPEARANCES For the Appellant MR R O'DAIR Representative Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ For the Respondents MS J HEAL (of Counsel) Clifford Chance Limited Liability Partnership 200 Aldersgate Street London EC1A 4JJ MR JUSTICE BURTON (PRESIDENT) : This is the hearing of an appeal by Ms P. Dacas against the dismissal of her claim for unfair dismissal by the Employment Tribunal sitting at London South. Her claim was against two Respondents, Brook Street (UK) Ltd, as First Respondent who, of course, are the well known Employment Agency, and Wandsworth Borough Council as the Second Respondent. She claims that she was either an employee of the Agency, the First Respondent, which placed her in the job she carried out at the West Drive Mental Health Hostel as a cleaner, or that she was employed by the Second Respondent, Wandsworth Borough Council.[2]There was no preliminary issue tried as to whether she was an employee, but both Respondents denied that she was, and instead of a preliminary hearing one full hearing was held on 28 November 2001 at which there were, therefore, two issues to be decided. First of all, was she an employee of one or other of the Respondents and, if so, was she unfairly dismissed by her employer?[3]The Tribunal concluded that the Applicant was not employed by either of the Respondents and, accordingly, her complaint of unfair dismissal fell. They made no specific conclusions in relation to unfair dismissal, but after setting out their reasons and their conclusions, in respect of the finding that the Applicant was an employee of neither Respondent, the Tribunal simply said in paragraph 40:
"In those circumstances the Tribunal finds that the Applicant was not employed by either the First Respondent or the Second Respondent and accordingly her unfair dismissal claim must fail."
[4]The Applicant has appealed, acting by Mr O'Dair, a FRU representative who appeared for her below also, and has done so on the following basis, making clear that there is no appeal in respect of the finding that she was not an employee of the Second Respondent, and restricting her claim to employment by the First Respondent. Her appeal was as follows.(1) that the Employment Tribunal erred in concluding that she was not an employee;(2) that the matter should not be remitted to the Employment Tribunal but should be resolved in her favour, on the basis of the findings by the Employment Tribunal itself, and(3) that it having been thus established that she is an employee, this Tribunal should also conclude that she was unfairly dismissed and should not remit the matter for further hearing on unfair dismissal, subject to any questions, of course, of contribution and remedy, on the basis that, on the finding of facts made by the Tribunal, albeit that it did not go ahead and reach a conclusion on unfair dismissal for the reasons which we have referred to, no Tribunal could have reached any other conclusion on the basis of those findings of fact, once it was established that the Applicant was an employee, than a finding of unfair dismissal.[5]There was also a point that was sought to be run by way of reference to the evidence below as a result of which, at the preliminary hearing, the Chairman's notes of evidence were requested in respect of the evidence-in-chief and in cross-examination of a Miss Andrews, but in the event, for reasons upon which we will briefly touch, that ground, by reference to the evidence, has not been pursued now that the notes of evidence have been obtained.[6]We turn first to the issue, which has taken the most time before us, namely the issue of employee or not. There are, of course, many decisions on the question of how to decide whether someone who works for another party is or is not an employee. The questions used to be simpler when one could look, for example, at differences arising out of PAYE or holiday or sickness pay, but legislation has now made such inroads into that area that, for those purposes, there is unlikely to be a distinction and, consequently, it is not possible any longer to look at those kind of differences, because there usually are no differences, whatever the proper analysis of the employment position may be.[7]The seminal authority is that of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 , in which the judgment was given by MacKenna J. It has been cited so often, and approved so often, that there is no need for us to refer to it in terms but, of course, there have been many other important decisions in the area. That case caused concentration to be addressed towards questions of control, but there has also been elevated, alongside questions of control, the issue of the "irreducible minimum of mutual obligation", which emerged originally in Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 and has now found its final place in the decision of the House of Lords in Carmichael v National Power plc [1999] ICR 1226 . Another, and very frequent and helpful, test, is that contained in Market Investigations Ltd v Ministry of Social Security [1969] 2 Q.B. 173, where the question that is asked relates to whether the person in question can be said to be carrying on a business of his, or her, own, which is regarded as the or a central description of someone who is genuinely self-employed. The most recent decision relating to analysis of the position, so far as Employment Agencies are concerned, is Montgomery v Johnson Underwood [2001] IRLR 269 , a decision of the Court of Appeal. The usual consequence where an Employment Tribunal correctly addresses itself, by reference to those and other such cases, is that the Employment Appeal Tribunal will be reluctant to interfere. This is not because such a question is one based entirely on facts, where the Employment Appeal Tribunal, which only has a power to interfere when there is an error of law, will thus be slow to intervene (particularly as the province of perversity, where it is plainly able to intervene, has been gradually so restricted in a number of decisions over the last few years. It is rather because it is a question of mixed law and fact, where the facts are found but then the Employment Tribunal expresses its legal conclusion based on the facts, where an error has to be shown; and, provided that the Employment Tribunal has applied the correct tests, it is rare for an Employment Appeal Tribunal to be able to identify an error, even if itself it would have reached a different conclusion.[8]However, in this case, Mr O'Dair submits that there have been errors of law by the Employment Tribunal, so much so that in his submission, not only can the decision be shown to have been wrong, but this Employment Appeal Tribunal can, and should, substitute the reverse conclusion on the basis of the findings of fact by the Tribunal.[9]We should deal briefly with one argument which he ran, which he did not substantially pursue, after a degree of exchange with the Bench. The Tribunal dealt, at paragraph 36 onwards in its Decision, with the fact that, as will become clear in a moment, the Appellant placed by Brook Street, as she was, with the Mental Health Hostel, had worked there, by the time she was dismissed, for a period of some six years; and Mr O'Dair argued below, and sought to reargue here, that the fact that the engagement had lasted as long as six years was a factor itself to be taken into account on the question of construction of the contract. The Tribunal said as follows, in paragraph 36 onwards:
"36 A factor which the Tribunal members debated was the length of time the Applicant worked continuously at West Drive Mental Health Hostel. Mr O'Dair in his submissions submitted that the permanence of the relationship, some six years, was significant as evidence of a contract of employment, and he referred the Tribunal to the decision in Montgomery v Johnson Underwood Ltd at paragraph 36."
We interpose to say that that paragraph reads as follows. "Charles J held that the tribunal took into account an irrelevant consideration by having regard to the actual length of Mrs Montgomery's service ... . It is true that the tribunal did not explain clearly what if any inference they drew from this fact but to my mind it does have some potential relevance. For example, it suggests that the parties had come to accept that the assignment had a degree of permanence. It might be considered as lending some support to Mrs Montgomery's evidence that she was at the outset looking for a position of some permanence. In Carmichael , it seems to me that both the Lord Chancellor and Lord Hoffmann encouraged tribunals to take a realistic view of circumstances generally. The Lord Chancellor referred to subsequent words and events as a legitimate source from which inferences might be drawn as to the parties' intentions." The Tribunal continued, as follows:
"However the Tribunal does not find that the mere length of the assignment alone is relevant. The Tribunal finds the Applicant commenced the assignment at West Drive Mental Health Hostel, not as an employee of the First Respondent, and the Tribunal finds that the mere length of that assignment does not itself change the Applicant's employment status. 37 The Tribunal looked to see if there was evidence to support any view that the permanence or length of the assignment had either changed the status or the intention of the parties. The Tribunal could find no such evidence. It appeared to the Tribunal that the degree of control, the mutuality of obligations and all other factors remained the same throughout the six years so that the position at the end of six years was the same as on the first day that the Applicant commenced her assignment at West Drive Mental Health Hostel."
[10]It is plain that subsequent events can, in appropriate circumstances, be used in order to construe a contract. Mr O'Dair referred us to Mears v Safecar Security Ltd [1983]1 QB 54 at 77 to support that proposition. But it is clear to us that, albeit that one can look at subsequent events, for example, to see how a contract was operated, as some evidence to support a case that there was a term to the same, or the reverse, effect incorporated at the outset of the contract, either expressly or impliedly, that is not what it was being asserted here. There is no evidence that there was any discussion at the outset of the contract, one way or the other, which would make this assignment any different from any other and, indeed, as we shall indicate in a moment, the Tribunal found, as a fact, that there was nothing different about this assignment from the ordinary run of assignments in which the Appellant, and those in her position, could be placed by the Respondent. Further, there can, in certain circumstances, be inferences drawn from the way in which the contract is, in fact, operated as to what the intention of the parties was at the outset. But what is here asserted is by reference to the simple fact that the contract lasted for six years. Of course, as a matter of sympathy, someone who is dismissed after six years obtains more of it than someone who is dismissed after six weeks or six months but, as Mr O'Dair accepted in the course of the argument, the reality is that, unless there is evidence of some variation to the contract, both those two parties must have the question of the nature and status of their contract assessed at the time they entered into it, and there was in this case no such evidence, as was given by Mrs Montgomery, in the passage from the Court of Appeal's judgment in that case from which we have cited.[11]In those circumstances, absent that argument by Mr O'Dair, he accepts the findings of the Tribunal and bases his arguments upon them. Those findings include the following, in the second part of paragraph 35:
"The Applicant was sent on the assignment to West Drive Hostel. There was nothing in that assignment which marked it out as different to any other assignment, and the Tribunal finds that the Applicant commenced that assignment not as an employee of the First Respondent."
Therefore, Mr O'Dair's case is that, irrespective of there being any difference in this assignment, irrespective of the time that it lasted, the Tribunal ought to have found, on the findings of fact they made, that his client was an employee from the outset.[12]The brief facts to which we do not need further to make reference are that the Appellant, having been a cleaner working exclusively at 3 and 4 West Drive, which were adjoining houses converted as Residential Care Homes for the long-term care of people with mental health problems, had an involvement in a significant incident on 24 April 2001, when she was involved in an altercation with a visitor. On the basis of the findings by the Tribunal, she was primarily, if not wholly, to blame for that incident, in which she swore at the visitor and, apparently, was reluctant to carry out the work that she should have been doing. The result was that she was reported by the visitor to the relevant supervisor at the Home, an employee of the Second Respondent. That employee telephoned the First Respondent Clapham's branch and asked that the Appellant be withdrawn from the contract and not sent to West Drive in the future, and the result was an interview with Miss Andrews, who told the Appellant that she was no longer to attend at West Drive. The Tribunal continues, in paragraph 12 (xix):
"There had been an incident in August 2000 when Miss Andrews was of the view that the Applicant had been rude and, against that background and in the light of the most recent incident, Miss Andrews informed the Applicant that the First Respondent would no longer be finding work for her."
[13]The submissions that were made to the Tribunal are summarised in paragraph 27 and following. The Tribunal notes at paragraph 30 that:
"Mr O'Dair on behalf of the Applicant conceded that the Applicant had no overall or umbrella contract of employment with the First Respondent."
This, of course, was, as Mr O'Dair and Ms Heal, who has appeared today for the Respondent, have submitted or accepted, an inevitable submission in the light of Montgomery v Johnson Underwood Ltd . Where a temp signs on with an agency, and the agency agrees to market her services and, therefore, she agreed to consider placements, there is, at any rate in the ordinary case, no sufficient mutuality of obligation to amount to a contract of employment, as between the agency and the temp. The relationship in this case was set out in a document called "The Temporary Worker Agreement", signed at some stage in 1997 or 1998, but, no doubt something similar had been in effect from the beginning of their relationship to which we will, in due course, return. But the submission by Mr O'Dair, which is recorded by the Tribunal at paragraph 30, is as follows:
"He argued that her engagement at West Drive Mental Health Hostel was governed by a contract of employment on the basis of a single engagement contract and the Applicant relied upon the case of McMeechan v Secretary of State for Employment [1997] IRLR 353 . The Tribunal referred to that case and noticed that a temporary worker can have the status of employee of the employment business in respect of an assignment actually worked, even if that worker may not be entitled to employee status under the general terms of engagement with that business."
[14]The Tribunal noted that submission. It did not in terms accept it, and did not in terms go on to make its conclusions by reference to what might be called, in loose terms, "a McMeechan contract", but it would appear clear, by way of inference from the rest of their judgment, not least because they perfectly well knew that Mr O'Dair was not making a submission based on an umbrella contract, that that was the case. At the end of paragraph 31(i) they make a reference to the single engagement at West Drive, to which we shall return, which appears to suggest that they fully appreciated that that was the nature of the case, and were also, at any rate for the purposes of their decision, accepting it. It is plain that, whether or not they did accept it in terms, inevitably that was the basis on which the status of the employee was to be found, if it could be found. McMeechan is plainly a significant decision of the Court of Appeal, which related to temps on the books of Employment Agencies. The headnote of the decision reads:
"The respondent temporary worker was entitled to be treated as an employee of an employment agency for the purposes of the specific contract governing the engagement in respect of which payment was owed to him when the agency went into liquidation. A temporary worker can have the status of employee ... in respect of each assignment actually worked, notwithstanding that the same worker may not be entitled to employee status under his general terms of engagement."
The relevant paragraphs of the judgment of Waite LJ are paragraphs 33 and following, and Mr O'Dair draws specific attention to the following, in paragraphs 35 and 36:
"There is nothing inherently repugnant, whether to good relations in the workplace or in law, about a state of affairs under which, in an employment agency case, the status of employee of the agency is allocated to a temporary worker in respect of each assignment actually worked - notwithstanding that the same worker may not be entitled to employee status under his general terms of engagement ... ."
The force of this is not lost in cases where – following what appears to be a common (though potentially confusing) practice – the agency and the temporary worker have committed themselves to standard terms and conditions which are intended to apply both to the general engagement and to the individual stints worked under it. The only result of that fusion is that the same conditions will have to be interpreted from a different perspective, according to whether they are being considered in the context of the general engagement or in the context of a single assignment."[15]It appears clear to us that what that means is that, irrespective of the nature of the umbrella arrangement, once it is concluded that there is a single engagement contract, which is potentially a contract of employment, the same terms are (all thing being equal) to be incorporated into the single engagement which, because of mutuality of obligation, is now much more likely to be a contract of employment, than the umbrella arrangement could have been. The central passage in the Tribunal's decision is that which follows on from the paragraph 30, in which they have referred to McMeechan , and it reads as follows:
"The Tribunal then noted that Mr O'Dair also conceded that before a contract of employment can be found there must be, as a minimum, a degree of control and mutuality of obligation. He drew the Tribunal's attention to the case of Montgomery v Johnson Underwood Ltd [2001] IRLR 269 . The Tribunal considered both of those matters in relation to the engagement at West Drive."
[16]One would have expected then that they would have proceeded on the basis of an assessment of the single engagement contract into which the terms, so far as relevant, of the temporary worker's agreement were to be incorporated, but looking at it, as Waite LJ says, in McMeechan , from a different perspective from that which they would have used had they been looking at the umbrella arrangement. Before we set out the balance of this part of the Decision, we should recite the relevant Clauses of the Temporary Worker Agreement. It is common ground between the parties that the relevant section of the Temporary Worker Agreement is Section C, headed up "Contract for Services" and the following paragraphs are incorporated:
"1. Where the provisions contained in this Section apply (a) . .. (b) For the avoidance of doubt, the provisions contained in this Section shall not give rise to a contract of employment between Brook Street and the Temporary Worker, or the Temporary Worker and the Client. (c) No variation or alteration of the provisions contained in this Section shall be valid unless approved by Brook Street in writing. 2. Assignment (a) Brook Street will endeavour to obtain suitable Assignments for the Temporary Worker to work as a Temp. (b) The Temporary Worker acknowledges that it is in the nature of temporary work that there may be periods when no suitable work is available and agrees: (i) that suitability shall be determined solely by Brook Street and, (ii) that Brook Street shall incur no liability towards the Temporary Worker should it fail to offer opportunities to work in the category specified in (a) above or in any other category."
[17]It appears to us that that sub-paragraph and, indeed, the following one, which we shall not read, have relevance only to what one might call "the umbrella agreement" and would, by themselves, not be relevant as incorporable into the single engagement contract or " McMeechan contract" which plainly here was between the temp and Brook Street, in respect of the assignment to the hostel. "3 Remuneration(a) Brook Street shall pay to the Temporary Worker remuneration calculated at a minimum hourly rate of ... to be notified to the Temporary Worker on a per Assignment basis for each hour worked during an Assignment to be paid weekly in arrears. All payments may be subject to deductions for the purpose of Class 1 National Insurance Contributions, PAYE and any other deductions which Brook Street may be bound by law to make.(b) Unless specifically agreed in writing to the contrary, the Temporary Worker is not entitled to payment from Brook Street or the Client for time not spent on Assignment whether in respect of holidays, illness or absence for any other reason. 4. Obligation of the Temporary Worker The Temporary Worker agrees that, during every Assignment afterwards, as appropriate, he will:- (a) co-operate with the Client's staff and accept the direction, supervision and control of any responsible person in the Client's organisation. (b) observe any rules and regulations of the Client's establishment to which attention has been drawn or which the Temporary Worker might reasonably be expected to ascertain.(c) unless arrangements have been made to the contrary, conform to the normal hours of work currently in force at the Client's establishment.(d) take all reasonable steps to safeguard his own safety and the safety of any other person who may be present or affected by his actions on the Assignment and comply with the health and safety policy of the Client.(e) not engage in any conduct detrimental to the interests of the Client.(f) advise Brook Street if he is offered employment by the Client and details of any remuneration offered.[18]There was then a Clause 5 relating to time sheets, which the Temporary Worker was required to deliver to Brook Street, duly completed to indicate the number of hours worked by him or her during the preceding week, and Brook Street was not obliged to make any payment to the Temporary Worker unless a properly authenticated time sheet had been submitted. Then, at Clause 6, under the heading "Cancellation of Assignments", it was provided:
"(a) Brook Street acting on the Client's behalf or the Client or the Temporary Worker may without prior notice and without liability end as Assignment at any time."
And, by (b), the Temporary Worker was required to inform the Client, or the Brook Street branch which arranged the assignment, in the event of his having to be absent for any reason.[19]We are told by Mr O'Dair, and Miss Heal, who was not there below, does not differ from this, that there was no specific evidence of fact given in relation to this assignment. The only other evidence of fact, which would be relevant and which formed the basis of the employer's conclusion to which we shall refer, was that there had been the disciplining of the Appellant to which reference is made in the Decision. There was the one previous incident, when Miss Andrews concluded that the Appellant had been rude, and there was then this incident which was dealt with by the First Respondent, and led to his dismissal. Against that background we turn to these crucial sub-paragraphs in the Employment Tribunal's Decision, in paragraph 31:
"(i) So far as control is concerned, the Tribunal noted that the First Respondent exercised considerable control over the Applicant. The day-to-day control whilst she worked at West Drive was exercised by the Second Respondent, but that was in accordance with the contractual requirements set out in the Temporary Worker Agreement. The Tribunal also noted that the First Respondent exercised some control by way of discipline. The Tribunal noted the warning in August 2000 and the fact that the assignment could be ended at any time. However that control arose from and was consistent with the Temporary Workers Agreement and no additional control arose in respect of the single engagement at West Drive. (ii) The Tribunal also finds that there was mutuality of obligation as between the Applicant and the First Respondent. The Applicant had to attend the assignment at West Drive. If she was sick she had to notify her sickness to the First Respondent, and if she wished to have holidays she needed to book those holidays with the First Respondent. The First Respondent was obliged to pay the Applicant. However those obligations arose under the Temporary Worker Agreement and were no more onerous in respect of the assignment at West Drive than any other assignment."
The reason why we say that those paragraphs were crucial is clear from the following. (1) The Tribunal looked at other facts which, as they put it, "might assist to determine the Applicant's employment status" in paragraph 32 of the Decision, and they, for various reasons, concluded that they were all neutral, that is, none of them assisted them to determine whether the assignment was a contract of employment. (2) The Tribunal looked at what they called "the feel of the matter" and, again, concluded that the "feel" of the matter was neutral, for the reasons they there give. (3) They considered whether the Appellant's assignment at West Drive was inconsistent or consistent with an employment relationship by virtue of the fact that day-to-day instructions were given by the Second Respondent, and, again, they concluded that, not least because they decided firmly that there was no employment relationship between the Second Respondent and the Appellant, and, as set out in the earlier paragraph, that since instructions by the Second Respondent as the client were provided for in the Temporary Worker Agreement, that too did not point either to or against an employment relationship. (4) The Tribunal dealt, at paragraph 35, with the intention of the parties. It is common ground between those appearing before us and it was, as we understand it, common ground below, that the label which the parties put on a contract, or whether objectively or subjectively arrived at, the intention of the parties can be a factor in the conclusion of an Employment Tribunal.[20]We have been referred today, more completely it would seem than was the Employment Tribunal below, to the relevant cases on the topic: Massey v Crown Life Insurance Co [1978] ICR 590, which itself distinguishes the earlier Court of Appeal authority of Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 WLR 1213 , and the subsequent decision of Young & Woods Ltd v West [1980] IRLR 201 , also in the Court of Appeal. What is clear from those authorities is that, where an Employment Tribunal is left uncertain at the end of its balancing act, where there are pointers both ways; where, as I put it in the course of argument to Counsel, the matter was "up for grabs", not only can the Employment Tribunal look at and place weight upon the terms of the contract, as expressing the intention of the parties, but that label can be decisive or determinative. The background, of course, to those cases was the existence of the "lump", in which it very often suited someone who would otherwise be an employee to be described as an independent contractor for Revenue purposes, as much as it suited the employer, and, certainly in the mind of Lawton LJ at any rate, part of the thinking was that it should not lie in the mouth of an employee who had sought to obtain such benefits, subsequently to argue the reverse, in order to seek to obtain the benefit of the employment protection legislation; and Ms Heal accepts that where there is some such sign of specific intention on the part of both parties, the implications to be drawn from the existence of the label are the greater. But even where there is no such particularly expressed intention, and where it is simply the incorporation into a standard form of the kind of rubric, which we have before us in this case, nevertheless both sides accept that that can and should be regarded as an indication of the intention of the parties, or at any rate as a guide to construction of the contract.[21]We should interpolate that Mr O'Dair has sought to argue before us today an argument, by reference to section 203 of the Employment Rights Act 1996 , which was not argued below and we did not hear argument on that point.[22]Consequently, the central paragraph 31 is supplemented in this way; that it is only, therefore, if there is that kind of doubt or ambiguity, that the label or intention can be determinative or decisive. If the contract, but for the label, argues only one way and if there is only one available construction, then the label or intention of the parties would be of the lesser significance. The Tribunal, in relation to the label, recited, in paragraph 29 of the Decision, the provision, "for the avoidance of doubt", which we have already recited from the Agreement. Then, at paragraph 35, the Tribunal said as follows:
"The Tribunal considered the intention of the parties. The Tribunal is satisfied that when the Applicant first entered into a relationship with the First Respondent it was the intention of the parties that the Applicant would not be an employee of the First Respondent. That is clearly stated in the Temporary Worker Agreement and the Tribunal is satisfied that that was the joint intention. The intention was that the Applicant would work on assignments to which she was sent. If there were no assignments she would not get work."
[23]The Tribunal then continued with the passage we have cited earlier, by which they find that there was nothing in the West Drive Hostel assignment which marked it out as different from any other assignment. It is, therefore, common ground that the construction of this Decision is that the Tribunal was satisfied at the least that the position was uncertain or ambiguous, and that, on a proper construction of this Decision, their reference in paragraph 35, having toured through all the other factors and found no guidance from them, was determinative in their conclusion.[24]Against that background, therefore, we turn to what we have described as the crucial sub-paragraphs. Control disappears in paragraph 31(i). It is quite apparent that the Tribunal made a finding of fact that the Respondent exercised considerable control over the Appellant. It discounted the day-to-day control exercised by the Second Respondent; plainly on the basis of the arguments by Mr O'Dair, which were by reference to the contract; it found the existence of both a personal control and delegated control, insofar as the day-to-day control was by virtue of the contract, that is, the Temporary Workers Agreement, left to the client. The Tribunal further referred to the control that the First Respondent exercised by way of discipline, by reference to the facts of the case.[25]It is right, as Ms Heal points out, that the Tribunal did not use the words "sufficient control" and the Tribunal did not come to any conclusion, on the face of it, that, using the control test, that test would be satisfied by reference to a conclusion of a contract of employment, whether but for other factors or otherwise. But the conclusion by the Tribunal that the Respondent exercised considerable control is then balanced by a last sentence in the paragraph, which we have already recited, but which we repeat:
"However that control arose from and was consistent with the Temporary Workers Agreement and no additional control arose in respect of the single engagement at West Drive."
[26]Two rival versions are put forward before us as to the meaning and context of that sentence. Mr O'Dair submits that what the sentence does is discount the finding made at the beginning of the sub-paragraph that the Respondent exercised considerable control, namely by saying that that control only arose out of the Temporary Workers Agreement, and could thus be discounted. He submits that, particularly as there was no express and clear finding by the Tribunal that there was a McMeechan contract, the Tribunal may well have been unclear as to where their conclusions were leading, and, although what they should have been doing was looking at the Temporary Workers Agreement as being incorporated into the McMeechan contract, they were, in some way, discounting the force of the McMeechan contract, by reference to the existence of an umbrella agreement, containing those terms, and thus minimising the importance of the fact that the same terms were incorporated in the McMeechan contract. Certainly the word "however" is suggestive that that contention is correct.[27]Ms Heal however, submits an alternative construction, and reminds the Tribunal that we should not treat Tribunal Decisions either as works or art or as if they were a statute. She submits that what that last sentence means is that the Tribunal is accepting that there was considerable control over the Applicant deriving from the Temporary Workers Agreement, but is finding or reminding itself that there was nothing additional arising out of the particular facts of the case before them relating to West Drive Hostel.[28]Whichever of those two interpretations is right, it appears to us that we are left with a conclusion by the Tribunal that the First Respondent exercised considerable control over the Applicant by reference both to the facts, the limited facts relating to discipline, and the terms of the Temporary Workers Agreement. If Mr O'Dair is right, then there is an inappropriate discounting, even within the sub-paragraph itself, of that considerable control. If Ms Heal is right, then the Tribunal is simply saying that there was no (what in the course of argument before us was described as) "super control" arising out of the West Drive engagement – this may be so, because it is clear from paragraph 37, which we have already recited above, that the Tribunal was, albeit that they are referring to it in a different context, of the view that there was a degree of control in the hands of the First Respondent throughout the contract. But whichever of them is right, there is a finding of considerable control.[29]We then turn to the second sub-paragraph of paragraph 31. Ms Heal herself accepts that there was there a finding of mutuality of obligation as between the Applicant and the First Respondent. That must inevitably amount to the same finding as one at least of irreducible minimum of obligation necessary for a contract of employment, as set out in Carmichael v National Power plc , to which we have referred.[30]There is a suggestion of support for Mr O'Dair's construction of the whole paragraph, by reference to the last sentence of the sub-paragraph, which appears to parallel and mirror the same last sentence of sub-paragraph (i), when it says:
"However those obligations [that is, the mutual obligations] arose under the Temporary Worker Agreement and were no more onerous in respect of the assignment at West Drive than any other assignment."
[31]We find that sentence almost impossible to understand and neither party has been able to assist us. What does it matter that the mutuality of obligation arose under the Temporary Worker Agreement, particularly as, per McMeechan , the Temporary Worker Agreement conditions would be the same conditions as would be incorporated in the McMeechan contract. Even more so, what does it matter that the obligations were more onerous, or no more onerous, in respect of the West Drive assignment, than any other assignment? We are driven to the conclusion that in this sub-paragraph, as in the earlier sub-paragraph, there is what appears to us an unjustifiable discounting or diminution of the Tribunal's own conclusions of fact.[32]The consequence then of our review of the Tribunal's Decision is this.(1) They applied a Ready-Mixed Concrete test, within which they made a finding of considerable control.(2) They applied a Montgomery v Johnson Underwood test and they found that there was mutuality of obligation.(3) They did not operate a Market Investigations test. Had they done so, it appears quite inevitable that they would have found, insofar as it assisted in the conclusion, that the Appellant was not carrying on a business of her own. This Appellant was not offering any kind of specialist services; she was not a nurse or a physiotherapist at the hostel, she was a cleaner. This Appellant was not providing, on the evidence at any rate, such services to anyone else. She was full-time working at West Drive, as it was seemingly found by the Tribunal. On the face of it, she would in ordinary parlance, working as a cleaner on an hourly rate full-time at a hostel, seen to be an employee, but she would certainly not look like someone who was carrying on business on her own account, yet the Tribunal concluded that she was not an employee and they did so, by reference to the label or rubric in the Temporary Worker Agreement.[33]The Tribunal recorded Mr O'Dair's correct concession in paragraph 31 that before a contract of employment can be found there must be, as a minimum, a degree of control and mutuality of obligation. This Tribunal found there was considerable control and that there was mutuality of obligation, albeit whatever that means, not more onerous than any other assignment.[34]It appears to us quite clear, that all the pointers on the findings of fact by the Tribunal were in favour of employment, and because all the other factors found by them to be neutral, no pointers existed pointing against employment. The only pointer was the label, but, albeit that they were no doubt entitled to take that into account, if it pointed the opposite way to all the indications which on their own findings otherwise existed in this contract, then they were not entitled to treat that label or rubric as determinative or decisive, as they appear to have done.[35]We are quite satisfied that the Tribunal erred in law in concluding that the Appellant was not an employee. We have been invited by Ms Heal in those circumstances, if we should come to that conclusion, to remit the matter to the Employment Tribunal for further consideration on the correct basis of there being a McMeechan contract, in case that was not entirely clear to the Tribunal at first grasp.[36]We do not conclude that it is necessary, or appropriate, to remit this case for such a reconsideration. On the findings of this Tribunal, who looked into the matter carefully so far as the facts were concerned, there was considerable control, and no suggestion at all, indeed, the reverse, that any control by the Second Respondent was relevant, or that there was any control at all exercised by the Appellant herself. Indeed, regrettable though it was, her own inappropriate efforts of controlling her activities, namely by taking a view that a certain room did not need cleaning was what, for very understandable reasons, no doubt led to her discipline and in due course, although this is not a matter which we are deciding, to her dismissal.[37]In those circumstances we are satisfied that, on the findings of the Tribunal itself, the control test, the mutuality of obligation test and, insofar as it would have been addressed, the Market Investigation test, indeed, all fell to be resolved in favour of the Appellant, and the only conceivable finding in those circumstances is a finding that she was employed by the First Respondent, and we allow the appeal in that regard.[38]In those circumstances the question arises as to how to deal with the issue of unfair dismissal. It is, perhaps, unfortunate that the Tribunal did not go on to deal with that issue, as they had heard the evidence, and as no preliminary issue had been ordered. Mr O'Dair invited us to say that, on the findings of fact made by the Tribunal, no other conclusion could have been reached than unfair dismissal. He submits that, albeit a serious and regrettable incident, the dismissal was not, or ought not to have been, an available option by way of sanctions to someone who had worked well for six years with only one previous warning. He points to the sub-paragraph to which we have referred, in paragraph 12(xix), and he submits that, once there was a finding of a McMeechan single engagement contract, that the conclusion by the Tribunal which, although he originally sought to challenge it, is no longer challenged, as to what Miss Andrews' view was, becomes irrelevant because, on the face of the Tribunal's findings, the view of Miss Andrews led to her informing the Appellant that the First Respondent would no longer be finding work for her, i.e. would be taking her off the books, and terminating the umbrella arrangement ; whereas his submission is that that played no role in the termination of the McMeechan contract, which arose simply as a result of the termination of that contract, inspired by the refusal of the Second Respondent to have the Appellant back. Further, he submits, that the dismissal was, in any event, treated inappropriately, that the reason for the dismissal was inappropriately and insufficiently dealt with by the employer.[39]We are entirely satisfied that we cannot substitute our own decision in this regard. Indeed, it is not even a question of substitution, it would be a question of making our own decision, because there was no conclusion reached by the Employment Tribunal. First, the matter is one for the industrial jury and not for the appeal body. If we were satisfied that it was absolutely clear what conclusion would be reached, then in order to avoid a remission we would so state, but it must, as we conclude, be a matter for a Tribunal to weigh up the various matters under Section 98(4) on the basis of the range of reasonable responses and to take into account the arguments, which are made by Mr O'Dair, by reference to what Miss Andrews said, to see whether they are, or are not, persuaded that the dismissal was unfair. In any event the matter would have to go back for the question of contribution to be considered, and it appears to us that, while the facts are being assessed for contribution, no additional prejudice would be caused by the question of dismissal also being looked at, so that even the normal reluctance to remit a case, which is now some two years old, cannot be prayed in aid in opposing a remission.[40]In those circumstances we shall remit the case to a different Tribunal, for a finding of unfair dismissal to be considered. That inevitably means that that Tribunal will fall to consider whether the Respondents can rely, in addition to the justification by way of conduct, which was run at the first hearing, an additional case, if so advised, of substantial other reason, but, as the issue will be at large, that question will be a matter for them to consider if and when an application to amend the Originating Application so to allege, is made to them.