MR P METANIE v PERTEMPS RECRUITMENT PARTNERSHIP LTD (T/A PERTEMPS INDUSTRIAL CONTRACTS) [2003] UKEAT 1389_00_1501

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1389_00_1501Case No Appeal No. EAT/1389/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P METANIEAPPELLANTPERTEMPS RECRUITMENT PARTNERSHIP LTD (T/A PERTEMPS INDUSTRIAL CONTRACTS)RESPONDENT
Before
Mr Justice BurtonLord Davies of CoityDate 15 January 2003
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent MR PATRICK GREEN (of Counsel) Messrs Hall Reynolds Solicitors 18 High Street Bidford-on-Avon Warwickshire B50 4BU THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is the hearing of the appeal by Mr Peter Metanie against the decision of an Employment Tribunal sitting at London South, given by the Chairman, Mr Peters, sitting alone, on 27 July 2000. Although it is the Appellant's appeal before us today, he has not appeared. He has indicated to this Tribunal that he will rely on the contents of his Skeleton Argument, which was served on 8 January 2003, and of course on all other written submissions and documents that are in the papers. The Respondent has appeared today, as it is entitled to do, by Mr Patrick Green of Counsel.[2]The setting of this appeal is that there have been a number of applications by the Appellant involving this company, the Respondent, Pertemps Recruitment Partnership Ltd, and another company, BOC Edwards Ltd, in respect of a relatively short engagement which he had with BOC Edwards, through the agency of the Respondents, in 2000.[3]The appeal by the Appellant was in fairly wide terms, but it was slimmed down, as a result of a Preliminary Hearing before a different constitution of this Appeal Tribunal, presided over by Charles J, on 11 May 2001. What was left by Charles J, after refusing permission to proceed in relation to all other grounds, was set out in paragraph 19 of the decision of the Employment Appeal Tribunal on the Preliminary Hearing as follows:
"It seems to us that the only points in this appeal that are reasonably arguable on this appeal are whether the Chairman erred in his identification in the issues in the manner set out earlier and whether, having regard to that, there was any procedural irregularity or unfairness in the way in which the issue as to the terms that were agreed was decided by the Employment Tribunal."
[4]The facts, for the purposes at any rate of this appeal, can be set in very short compass. The Respondents relied upon a document called 'Terms of Engagement for Temporary Workers', apparently signed by the Appellant and dated 10 June 2000. So, it seems, did the Appellant himself. He asserted, in the Employment Tribunal, that he was self-employed and that consequently there should not have been deductions from what he was paid in respect of the work that he provided, through the Respondents, at BOC Edwards in respect of National Insurance. Consequently, he asserted, in his Originating Application dated 8 June 2000, that there had been unlawful deductions contrary to Section 13 of the Employment Rights Act 1996, which applies to workers, not therefore limited to those who are, strictly speaking, employees. His case, which was put forward by him unrepresented; although he is an experienced litigant, having, as we understand it, brought a number of other applications, he is not a lawyer. To cut through to the end of this story, he did not appreciate the consequence of the Social Security Categorisation of Earners Regulations 1978 , which in fact required deductions to be made from his remuneration, even if he was self-employed, in the particular circumstances of this case, he being an agency worker. So, on his own case, namely that he was self-employed, his case for unlawful deduction was bound to fail, as indeed it did, and his attempted appeal in this regard was not permitted to proceed by Charles J and is not before us today.[5]The case thus that was put before the Respondents, albeit that he contended for consequences which the Respondents successfully in the end resisted, as we have indicated, was largely common ground, namely that he was self-employed. That is a case which the Respondents too asserted; that is, so far as they are concerned, the nature of the business they operate, and consistent with their standard terms and conditions which he had at the time. By a letter, which was in the bundle before the Employment Tribunal, dated 10 June 2000, (albeit that it was headed up 'without prejudice', it appears to have been openly produced in the bundle before the Tribunal) he said as follows:
"Please find enclosed herewith the signed paper you sent to me back in May; let's call it Engagement Paper . I sign it for more than one reason."
He then sets out why he signed it. That was the document which expressly recited that he was engaged as a self-employed worker. It was thus common ground between the parties when the application came on to be tried, before Mr Peters as Chairman, that he was subject to those terms and conditions. At the outset of the hearing, as Mr Peters records, the parties agreed what the issues were that he had to resolve. Paragraph 3 of his judgment reads as follows:
"At the outset of the hearing on 27 July 2000 it was identified that the Applicant made two complaints namely: (i) a failure to provide the written particulars of employment as required by section 1 of the Employment Rights Act 1996. (ii) an unlawful deduction from wages contrary to section 13 of the Employment Rights Act 1996 namely that the Respondent had deducted National Insurance contributions at the wrong rate."
Paragraphs 4, 5 and 6 then recited the Respondent's position:
"4 The Respondent resisted both complaints. The Respondent asserted that the Applicant was not an employee of the Respondent. The Respondent is a recruitment and employment agency and the Applicant was placed through the Respondent to work for a company, BOC Edwards. 5 The Respondent argued that even if the Applicant was an employee the Applicant's complaint must fail because: (i) The Applicant was given, in writing, terms and conditions of his engagement with the Respondent sufficient to satisfy section 1 of the Employment Rights Act 1996 and; (ii) Whether the Applicant was an employee or not, the Respondent was obliged to deduct National Insurance contributions on the basis that the Applicant was an employee and accordingly the correct deductions had been made. 6 Accordingly, on the Respondent's case, it was unnecessary for me to decide whether the Applicant was or was not employed by the Respondent. The issues were: (i) if the Applicant was an employee, was there a breach of Section 1 of the Employment Rights Act 1996? (ii) was the Respondent obliged to deduct National Insurance Contributions at the same rate irrespective of whether the Applicant was an employee or not."
It would appear therefore that by the outset of the appeal there was now a case being put forward by the Appellant that he was an employee, alternatively, was self-employed, but, on either basis, that he should not have had the deductions made.[6]There is not expressly recited in the paragraphs I have quoted, which set out the issues to be tried, any issue relating to whether he had signed the terms and conditions, which for the purposes of the argument are the ones which were in issue before the Tribunal, and based upon which the argument was going to be run as to whether there should or should not have been the statutory deductions. It would appear that that was because, at that stage, no issue was being put forward by the Appellant that he had not signed the document. On his Originating Application he did not fill in Box 1, which identified the type of complaint, and he did not fill in Box 10, relating to unfair dismissal applicants only. Box 11 set out the detail of his complaint as follows:
"1 I am asked to sign a contract of engagement whose terms and conditions were not negotiated with me and I do not agree with. 2 On 6.06.2000 I was threatened with dismissal if I do not sign it. 3 From the date I was employed the company, PERTEMPS, makes unlawful deductions from my wages."
It would appear from the letter in the bundle, which we have recited, dated 10 June 2000, that it is the case that he was asserting at that stage that he had signed the document. That is the recollection of Counsel then appearing for the Respondent, as relayed to us today by Mr Green.[7]At the Preliminary Hearing before this Tribunal however, the Appellant was now asserting, it would seem inconsistently, that he had not signed the document, and a case was sought to be put forward that the document was in some way forged. It was against that background, that Charles J, together with his fellow members, was persuaded that there was an arguable point as to whether the Chairman had erred in his identification of the issues. Paragraph 8 onwards of the Tribunal's judgment on the Preliminary Hearing reads as follows:
"8 Turning to the first point as identified by the Chairman, that does not on its face reflect the dispute raised in paragraph 1 in box 11 of the Originating Application that there was a dispute as to the terms that had been agreed and negotiated. 9 However the issue as identified in paragraph 3(i) is a far more anodyne one, namely has the relevant piece of paper with the relevant terms agreed been provided. 10 Against that identification of the issue the Chairman took what we would regard as an entirely sensible course in that he decided that he would not determine the issue as to who Mr Metanie's employer is but will proceed on the assumption that it is the Respondents. That seems to us, against a background where the identified issue was whether the relevant piece of paper had been provided, an entirely sensible and proper stance for the Chairman to take … 11 The Chairman did however hear some oral evidence … It may be that in hearing that evidence the Chairman was, or should have been, directed or alerted to what seems to us (and as Mr Metanie has explained was) an important issue so far as Mr Metanie saw it namely that he simply did not agree that he had been engaged upon the terms set out in the Terms of Engagement of a Temporary Worker. … 12 It seems to us that it is arguable therefore that the Chairman, in identifying the issue that existed between the parties, erred in law in that he misunderstood what was a factor in the dispute."
[8]When Charles J had given judgment, allowing the matter to go forward in relation to the one or one and a half issues, an event immediately happened thereafter. This arose out of the fact that Counsel for the Respondents (not Mr Green, but Counsel who had attended the Tribunal hearing below) was present informally at the Preliminary Hearing, and rose to indicate that, if the only issue to go forward was whether the Appellant has signed the document, that issue was an issue which had been raised in other pending proceedings in the Brighton Employment Tribunal, and the suggestion was that there be no order on the appeal while that issue was resolved, in those Brighton proceedings. That was the basis upon which these proceedings, effectively, were stayed. The Brighton proceedings have in fact themselves subsequently been stayed in circumstances with which we do not need at this stage to deal. Mr Metanie has now restored this appeal for further hearing. As the Brighton proceedings have been stayed, the Respondent's position is no longer that they are content for no resolution of this appeal to occur, and have, through Mr Green, argued before us that it should be dismissed.[9]We turn then to that short question, namely, whether the matter identified by Charles J is indeed a fit subject for an appeal such as to cause the appeal to be allowed. The central point, as it appears to us, is that there was a finding of fact by the Chairman, at paragraph 8 (vii) of his decision as follows:
"Despite his objection the Applicant signed the Terms of Engagement on 10 June 2000. That document contains numerous terms including as to rate of pay, termination, conduct whilst at work and completion of timesheets."
That, it appears to us, probably constituted simply a finding based upon the common ground between the parties, because it does appear to us that at that stage the Appellant was denying that he had signed the document. However, if he was denying that he signed the document, and if it was a contested issue between the parties, there was there a finding by the Chairman. Thus the issue which Charles J suggested may not have been fully addressed, was indeed addressed, namely, that there was a finding that the document had been signed, and thus any suggestion of forgery now raised cannot be put forward.[10]Based on the finding of fact that they made - that the document had been signed - the Tribunal concluded that there had not been a failure to provide the written particulars of employment for two reasons. One is that if there was employment, that was a good document, and secondly, that in any event, as they concluded, because of the very terms and conditions themselves, there was not employment, but engagement as self-employed. They then went on to deal with the question of unlawful deduction by concluding that as the Appellant was self-employed, the regulations to which we have referred applied. Of course if the Appellant had been an employee, which they found he was not, in any event those statutory deductions would not have been unlawful.[11]It appears to us, therefore, that the Tribunal fully addressed the right issue, the one that was placed before them. Put in general terms – If there is employment, has there been a sufficient document of written particulars of employment supplied? Yes, there has been, and it has been signed. And - have there been unlawful deductions? No, there have not been unlawful deductions, because we are satisfied that he is self-employed but that the Regulations apply, alternatively the same answer even if he were employed.[12]This appeal therefore has no substance whatever. There is no basis at all for any suggestion that the Chairman did not accurately identify, or certainly not deal with, the issues that were before him to resolve. This appeal must consequently be dismissed.[13]There is an application before us by Mr Green for the costs of the appeal. He asserts that the costs should be payable within Rule 34 of the Employment Appeal Tribunal Rules 1993 , which reads as follows:
"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."
We are entirely satisfied that it is appropriate to make an order on all those four bases. Suffice it to say as follows: (1) The original appeal was pursued on a number of grounds which were found to be unsustainable by Charles J and his Tribunal, including a number of seemingly scandalous allegations. (2) The one ground that was permitted by Charles J and his Tribunal to go forward, was a ground based upon an allegation which appears to be wholly unsupportable and scandalous, that there was forgery, given the background to the fact that there was a letter, which was not shown to Charles J from the Appellant himself, which had been before the Employment Tribunal, which recorded that he had in fact himself signed the document. (3) To similar effect, quite apart from the allegation of forgery, he did not disclose that fact, namely, that there had been such a letter which reflected that he himself had signed the document, to Charles J, and left it to be inferred that there was no evidence that he signed it, and that his case was that he had not done so, while failing to disclose to the Tribunal the fact that there was that letter which recorded that he had in fact signed it. It was only, it seems to us, on the basis of that assertion, namely, that he was putting forward a case which had not therefore been adequately dealt with by the Chairman, that his appeal was permitted to go forward at all. (4) Without at this stage going into the rights and wrongs as to why the Brighton proceedings have been stayed, nevertheless, they have remained so stayed, and this appeal also would have remained stayed until and unless the stay was lifted on those Brighton proceedings but for his own lifting of the stay, or taking of action notwithstanding the stay, so as to restore this appeal, which he has not attended, contenting himself with written submissions. That of itself would render this appeal quite unnecessary because in fact he could have left the matter as it was, pending the outcome, if there is to be an outcome, in Brighton. In fact he chose to activate the appeal, which has led to the totally unnecessary expenditure today, which now leads to its dismissal. For all those grounds, we are satisfied that Rule 34 is entirely applicable and that costs should be paid by him.[14]We have been shown a schedule by the Respondents which purports to evidence a sum of nearly £21,000. Plainly, this appeal has put the Respondents to a considerable amount of expense, but we have no idea precisely what sum will be justifiable and conclude that it is appropriate that it be assessed on the ordinary basis, which would give the opportunity of the Appellant to challenge any specific items. We have no doubt whatever however that the sum of at least £6,000 must, on any view, be due, and we make that interim order, payable in twenty eight days by the Appellant. As to the balance, it is to be referred for assessment.[15]In his Skeleton Argument, the Appellant has somewhat eccentrically asked for leave to appeal to the Court of Appeal to be granted regardless of the outcome of the case. We take that, at any rate for the purposes of today as it now falls, to be an application for leave to appeal to the Court of Appeal, he having lost this appeal. We conclude that there are no grounds for any such appeal to the Court of Appeal and we refuse it.