MR K KOTECHA v INSURETY PLC & CAPITAL HEALTHCARE AND OTHERS [2002] UKEAT 969_01_2401

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 969_01_2401

Case No Appeal No. EAT/969/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR K KOTECHAAPPELLANT

INSURETY PLC & CAPITAL HEALTHCARE AND OTHERSRESPONDENT

Before

Mr Justice Bell Mr K Edmondson

Date 24 January 2002

[1]APPEARANCES For the Appellant MR KEVIN McFADDEN (Representative) Instructed By: Mr Courtney Hay Northern Complainant Aid Fund Midlands Unit 70 Villa Road Handsworth Birmingham B19 1BL MR JUSTICE BELL : This is the Preliminary Hearing of the Appeal of Mr Kotecha, who is of Indian origin.

[2]On the 19th April 2000, he presented an Application to the Employment Tribunal, alleging that Insurety Plc, which trades as Capital Health, had discriminated against him contrary to the Race Relations 1976 Act by demoting him. He joined various directors, managers or employees of Insurety as Respondents. In due course the Employment Tribunal treated his Application as also alleging unfair dismissal, breach of contract and unlawful deductions of wages.

[3]On the 9 th November 2000, Mr Kotecha presented a further Application which the Employment Tribunal referred to in its Extended Reasons for its decision as a complaint of unfair dismissal, unlawful deduction of wages and breach of contract against Insurety only. But it is quite clear from the terms of the copy attached to Mr Courtney Hay's Skeleton that it primarily alleges discrimination contrary to the Race Relations Act, contending that the Applicant/Appellant was dismissed because he brought the earlier complaint under the Race Relations Act, i.e. it alleged discrimination by victimisation.

[4]Insurety contended that the Applicant was engaged as a self-employed sales adviser under a self-employed agency agreement and the Employment Tribunal decision sent to the parties on the 5 th July 2001 after a hearing at Birmingham on the 26 th April 2001 was:

"the Applicant was not an "employee" or a "worker" and is not therefore entitled to pursue these claims"

. Both Applications were therefore dismissed.

[5]The Extended Reasons refer to s.230(1) and (3) of the Employment Rights Act 1996 , which define "employee" and "worker" for the purposes of that Act, and the Extended Reasons say that the preliminary issue the Tribunal has had to decide is whether the Applicant was an employee or worker within the meaning of s.230(1) or (3). The Extended Reasons do not refer at all to s.78(1) of the Race Relations Act, which defines "employment" for the purposes of that Act. The relevant terms of s.78(1) concerning "employment" are not completely dissimilar, in some respects, to the definition of "worker" in s.230(3), but the former definition is arguably wider than the latter and in any event it is arguable, in our view, to say the very least that the Tribunal fundamentally misdirected itself in not considering s.78(1) in relation to the Race Relation Act claims. We therefore allow this appeal to proceed to a full hearing. We place it in Category B. We give it a time estimate of half a day but we ask that if Mr Courtney Hay, who is conducting the Appeal on behalf of the Appellant but is not here today, considers that the length of hearing will either be significantly shorter or significantly longer than that, he contacts the Appeal Tribunal office immediately.