MR A MELHUISH v REDBRIDGE CITIZENS ADVICE BUREAU [2004] UKEAT 0130_04_2405

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0130_04_2405Case No Appeal No. UKEAT/0130/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A MELHUISHAPPELLANTREDBRIDGE CITIZENS ADVICE BUREAURESPONDENT
Before
Mr Justice BurtonDate 24 May 2004
[1]APPEARANCES For the Appellant The Appellant in person For the Respondent Miss Lucy McLynn Solicitor Messrs Bates Wells & Braithwaite Solicitors Cheapside House 138 Cheapside London EC2V 6BB SUMMARY Unfair dismissal Exclusions including worker Appellant, an unpaid voluntary worker at CAB, receiving reimbursement of expenses and free training, claimed unfair dismissal. No mutuality, no contract of employment and no contract at all except to reimburse expenses if incurred: Prior v Millwall Lionesses FC EAT 341/99 and South East Sheffield CAB v Grayson [2004] IRLR 35 applied. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of the appeal by Mr Melhuish against the unanimous decision of the Employment Tribunal at Stratford, after a hearing on 28 October 2003, by a Decision handed down on 1 December 2003, that the Originating Application brought by the Appellant against the Redbridge Citizens Advice Bureau as Respondent, should be dismissed because the Applicant was not an employee of the Respondent, and consequently was not entitled to bring a claim for unfair dismissal.[2]The Appellant has appealed, and has rerun the arguments that he ran below before us. As we have explained to him, and as we believe the Appellant, as a previous adviser at the Citizens Advice Bureau well understood, we are a Tribunal of law, requiring appeals to be on points of law and do not allow for the re-hearing of a case based on fact.[3]The Tribunal made findings of fact in this case. The fundamental point, which was never in issue, was that the Appellant was a volunteer and received, and was entitled to, no remuneration. He clearly, for some years, publicly spiritedly, acted as a volunteer, and in return received only expenses, including travelling expenses from his home and back, which are of course not normally paid, if ever, to employees.[4]The findings of fact of the Tribunal, for our purposes, are as follows: we refer to the relevant paragraphs of the Decision:
"9 On 13 June 1997 Mr Melhuish was interviewed by Mrs Holkar and two other persons. Mr Melhuish was told that if selected he would be expected to attend the bureau at least two days per week and if seeking employment needed two years' working experience. Mr Melhuish was also told he would be paid his expenses and his training would be free. Mr Melhuish was asked what days he should work and was told he could nominate them. Mr Melhuish was told of the need for induction and further training. Mr Melhuish was also advised of the importance of confidentiality and impartiality in dealings with the public. … 12 The Respondents have paid employees and volunteers. Paid employees are required to attend staff meetings whereas volunteers are encouraged to attend general staff meetings if they can. Paid employees do not get expenses for travelling to and from work whereas volunteers do. Apart from the induction course, training courses are not (as far as the Tribunal is aware) obligatory for either group, but in practice both volunteers and paid employees attend training courses on occasion. Unlike paid employees, volunteers have no contract of employment, no holiday entitlement, no sick pay, no notice requirements, and no disciplinary or grievance procedures apply to them. … 14 Mr Melhuish generally worked an average two days per week but from about September 2002 until December 2002 this dropped to about one day a week because of the closure of a branch of the Respondents. If Mr Melhuish could not work on his designated day he would let the Respondents know and a supervisor would find a substitute if possible. 19 …… Although we conclude that the Respondents were not obliged to provide work, nor Mr Melhuish to do it, once Mr Melhuish had committed himself he was expected to give notice if he could not keep the booking. Although the parties expected Mr Melhuish to work two days a week, this did not always happen. 21 …… We have already concluded that the Respondents were not obliged to provide work and Mr Melhuish was not obliged to do it. Certainly the parties had expectations of each other, but in our view no binding obligations existed. "
The Appellant has submitted that the Tribunal's conclusions were perverse. They make no specific reference to any part of the witness statement of Mr Sharma, who was the witness for the Respondent, which the Appellant says was false in certain respects.[5]None of those matters have been identified before us in such a way as to indicate any particular areas in which the alleged falsity of Mr Sharma's evidence would be relevant, but the Tribunal was not obliged to make specific reference to any witness statement, although in fact it does at paragraph 5 record that both the Appellant and Mr Sharma gave evidence, and reference was made to some of the documents in the bundle before them. But, in any event, it is quite clear that there was sufficient evidence before it as to which it was entitled to make up its mind, and by reference, in any event, to those documents, to justify the conclusions to which it came.[6]The Appellant has sought before us to persuade this Appeal Tribunal to order the production of two further documents. With a letter which accompanied his Notice of Appeal he set out a whole host of documents which he said that he requested to see. No order was made in relation to any such requests when this appeal was set down, and a letter of 15 March 2004 from the Respondent's solicitors rightly indicated to him, when he mentioned some of those documents in correspondence, that an order would need to be sought from and made by the Employment Appeal Tribunal, which would be an exceptional order, because of the fact that the documents which he was mentioning were in existence prior to the Employment Tribunal hearing, but not entered as evidence at that hearing; and the Respondent referred the Appellant to paragraph 8 of the Employment Appeal Tribunal's Practice Direction 2002, indicating to him that if he did wish to pursue such an application, it would recommend that the Appellant wrote to the EAT within the terms of paragraph 8 of the Practice Direction. He did not, but simply wrote a letter of 22 April 2004 eventually to this Tribunal, saying that he was still requesting the documents, but making no attempt to comply with paragraph 8 of the Practice Direction which laid down the procedure whereby the exceptional course can, occasionally, be taken by this Tribunal of permitting fresh evidence, if persuaded that it falls within the very stringent tests for additional evidence that are referred to in the Practice Direction.[7]He has renewed his application before us today, by reference only to two alleged documents. The first is an agreement which he says exists between the Respondent and the local council, with regard to the service level which the council wishes, which he describes as the "Service Level Agreement", and the other document, or documents, are in generic terms are what he has called the "NACAB Audit Guidance Sheet" which he submits to be documents prepared for the purposes of an audit by the National Citizens Advice Bureaux body, again to inspect or check on the level of service provided by this particular Citizens Advice Bureau.[8]We are entirely satisfied that such application is of no merit at all.(1) He accepts that he did not seek those documents prior to the Employment Tribunal hearing.(2) He did not seek them at the Employment Tribunal hearing nor, as he accepts, did he ask for any adjournment of that hearing, so that he could seek such documents.(3) There is no reference in his Notice of Appeal to any failure by the Employment Tribunal in regard to any absence of documents, or any absence of an order for disclosure of such documents.(4) Those documents, if they exist at all, existed prior to the Employment Tribunal hearing.(5) They do not appear to us to be of any materiality to the issue being decided before us. At best, they would go, as he explained them to us, to the service level to be provided by the Respondent, which he submits could only be provided by the imposition upon volunteers such as him, as well as employees in the usual sense, of obligations and standards, which he says would be part of a discussion, at the very least, as to whether he was an employee.[9]In fact, even if such documents could be of any relevance, it would, it is quite clear, take him no further than the finding that the Tribunal, in any event, made in paragraph 20 of its Decision, as follows:
"…. we believe from what we did hear that there were - and quite rightly so - various constraints placed on Mr Melhuish in regard to his work. Mr Melhuish had to comply with national standards of performance and was subject to monitoring. Rules existed as to what Mr Melhuish should keep of interviews and such like."
Those are quite plainly findings of fact which would have been only corroborated by the kind of matters which the Appellant now says he would have liked to have put before them, and would seek to put before us. This application for fresh evidence is hopeless.[10]We turn then to a consideration of the Employment Tribunal's Decision on the basis of the findings of fact that it made, with the clear finding by us that there is no basis for any possible suggestion that those findings of fact are perverse. The unquestioned position is, as we have indicated, that there was no remuneration and although the Appellant was entitled to take part in the training which was provided, which was of some benefit to him, and no doubt of some benefit to the Respondent, that is the only additional matter, apart from the reimbursement of expenses, upon which the Appellant relies, to support his case. It is plain that he was, on any basis, a volunteer worker.[11]The issue of law revolves around section 230 of the 1996 Act, which is the definition section for the purposes of the claim of unfair dismissal, and section 230(1) and (2) reads as follows:
"30. (1) in this Act "employee" means an individual who has entered into or works under …..works under .. a contract of employment. (2) In this Act "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing."
It is only if the Appellant is an employee, as so defined, that he has an entitlement to claim unfair dismissal, because section 94 of the 1996 Act specifically provides, under the heading "The Right":
"(1) An employee has the right not to be unfairly dismissed by his employer"
This is a more restrictive definition of the term than "employee" or "contract of employment" than is provided for the purposes of the Disability Discrimination Act 1995 by section 68. Section 68 is the definition section, and for the purposes of that Act, employment is defined as follows:
"subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and relation expressions, are to be construed accordingly"
. It is therefore clear that for the purpose of the Disability Discrimination Act there is a wider definition of the concept of employment, which includes not only a contract of service, but also a contract personally to do any work.[12]The Employment Tribunal in this case did not have the benefit of two important and recent decisions of the Employment Appeal Tribunal. The first is the decision of this Employment Appeal Tribunal in Prior -v- Millwall Lionesses Football Club EAT/341/99, given on 28 February 2000. The judgment was given by me, as part of a panel in which I sat with Mr Hodgkins CB and Mr Willis. It was not reported, although no doubt available on the Employment Tribunal website, and was not cited by either party to the Employment Tribunal or by the Employment Tribunal itself. It was thus binding at the time on the Employment Tribunal but not, for the reasons that we have given, available to it for the purpose of its decision.[13]The second decision is that recently given, again by the Employment Appeal Tribunal, this time presided over by Mr Justice Rimer, in South East Sheffield Citizens Advice Bureau -v- Grayson [2004] IRLR 35 ; this, as has been indicated, was reported. The decision made relates to a claim under the Disability Discrimination Act by an employee of the Citizen Advice Bureau, and there appears to have been no issue as to whether the Applicant was an employee, but the question was whether the Citizens Advice Bureau employed fewer than 15 employees, such as to be excluded from the coverage of the 1995 Act, by virtue of section 7, and the issue was therefore whether a number of the Citizens Advice Bureau voluntary workers could be found to be employees for the purposes of the Act.[14]As can be seen, that decision is not by reference to the restricted definition under section 230 of Employment Rights Act 1996 , but by reference to the wider definition under the 1995 Act. But, of course, the fact that, as will appear, it was concluded that such voluntary workers were not within the definition for the purposes of section 68 of he 1995 Act, makes it a fortiori for the purpose of the 1996 Act, section 230. Not only were they not serving under a contract of employment, on the findings in Grayson , but they were not even serving under a contract personally to provide service.[15]We are not strictly bound by those two decisions, but it would only be in exceptional cases that this Tribunal would not follow two such recent fully argued decisions, which are so close to the facts of this case, the one because it is directly on point, so far as the relevant section is concerned, the other because it is overwhelmingly supportive of the Respondent's case, albeit under a different section, and further relates to the very structure of a Citizens Advice Bureau, which was in consideration here. Recent, fully reasoned, relevant decisions of the Employment Appeal Tribunal are of very persuasive effect, and this is not a situation in which there is any earlier inconsistent decision. Both decisions go the same way. We see no reason whatever to depart from those decisions, and we are convinced by them.[16]The Respondent, in a Respondent's Notice, took issue with the Tribunal's apparent finding, in paragraph 19 of the Tribunal's Decision, that there was a contract between the parties, albeit one in which the Respondent had the benefit of the Appellant's services free of charge, as it was put by the Tribunal, and in its Respondent's notice the Respondent pleads as follows:
" 1. Insofar as the Tribunal's conclusion that there was a contract between the parties went beyond concluding there was a contractual obligation in respect of expenses (and it is not entirely clear whether this is in fact the Tribunal's decision), the Respondent contends that the Tribunal erred in extrapolating an intention to create legal relations beyond the repayment of the expenses. There was no evidence from which such an intention could be inferred."
[17]Our conclusions are as follows:[18]First, plainly on the facts found by the Employment Tribunal there was no mutuality of obligation. The Respondent referred before the Tribunal, and, in written submissions, before us, to Carmichael -v- National Power Plc [2000] IRLR 43 , and indeed the Appellant himself addressed his submissions to that case. If the Appellant, or any other voluntary worker, attended at the Citizens Advice Bureau, on the one or two days expected of him or them, then that voluntary worker must comply with certain standards and guidelines, and that is made clear in the paragraph of the Employment Appeal Tribunal's decision, paragraph 20, to which we have already referred; but, as the Tribunal plainly found, there was no obligation on the Appellant to attend, and if he notified the Respondent that, contrary to expectations, he was not attending, then they or he would do their best to find a substitute, but there would be no sanction for his non-attendance. The existence of required standards or guidelines, if the Appellant did attend, does not create an obligation upon him to attend, or create mutuality of obligation, the central part of which is the obligation on the employee to attend and upon the employer to provide work.[19]Secondly, in any event, it is quite plain that this is not a contract of service. There is no master and servant, or employer and employee relationship, unlike the relationship between the Respondent and its actual employees. The most important decision, of course, in this area is Ready Mixed Concrete [1968] 2 QB 497 at 515C, which formed the basis of the decision of this Appeal Tribunal, to which both parties' attention was specifically drawn by this Appeal Tribunal shortly after the appeal was lodged, in Prior .[20]The relevant passages of Prior are to be found in paragraph 9, and following, to which we shall refer; but the judgment in that case started with Ready Mixed Concrete , and then referred, as will appear, to the Court of Appeal's incorporation and approval of Ready Mixed Concrete in Nethermere (St Neots) Ltd v Taverna and Gardiner [1984] ICR 612 and then, of course, to the further approval of both cases in Carmichael -v- National Power Plc [2000] IRLR 43 in the House of Lords.[21]Prior was a case in which the Applicant was a volunteer, who was General Secretary of a football club. The relevant passages of that judgment are as follows:
"9 The first question is whether there is, in this case, a contract at all. In order for there to be a contract, there must in English law be consideration. Mr Faheem" [who was the representative of Mrs Prior] " has submitted that the fact that the club has gained a benefit, as it undoubtedly has from Miss Prior's distinguished and considerable services, is enough, because that means that she, as one party to a contract, has provided a benefit, and thus consideration has moved from her. But plainly the provision of a benefit to another party is not enough to create a contract. It would amount to the gratuitous gift of services or goods and not a contract if it arose out of the simple provision of a benefit to another party. There has to be mutuality to any relationship in order to create a contract. Receipt by one of those two parties of a benefit is not sufficient. There must be a promise in return. "
I will give you something in return for your services." There is, it seems to us, no such bargain in this case, no such mutuality of obligation." We would interpose that the same applies on the findings of this Employment Tribunal, and on the clear picture which we derive also from the facts of this case here. "Mr Faheem, in the course of his skeleton and in his submissions referred to a unilateral contract, but a unilateral contract is not one in which there is no mutuality in the end, it is simply one in which, as in Carlill v Carbolic Smoke Ball Co 1893 1 QB 256 , one party offers something if, in due course, the other party does something in return and then, by doing that act, the second party is accepting the offer and providing the consideration. 10 The position here is not that there was any kind of staggered mutuality, but that there was no mutuality at all. Doing our best to see if we can spell out any promise, the highest it could be put would be; "I agree or promise that I will accept the benefit that you are providing for me" and that is no promise, unless there is a promise to do something in return more than simply to accept the benefit." And then, after reference to a case called SU Stores Ltd v Lee [1969] 1 WLR 626, the judgment in Prior refers to the fact there was only, in that case, as there is in this case, a reimbursement of expenses. Then in paragraph 12, we turned to the fundamental centrality of MacKenna J's judgment in Ready Mixed Concrete , and the relevant passage of MacKenna J's judgment at 515 C, where he said as follows:
"I must now consider what is meant by "contract of service"
. A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) the other provisions of the contract are consistent with its being a contract of service …… As to (i) there must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. We continued:- Later, in MacKenna J's judgment, at 524C, he continues:
"There are the four indicia of a contract of service, first mentioned in Park v Wilson's and Clyde Coal Company Ltd and repeated by Lord Thankerton in Short and J W Henderson Ltd."
The latter is a House of Lords decision, reported in 1946 62 TLR 427 at 429. MacKenna J. then set out those four indicia: - "a) The Master's power of selection of his servant b) The payment of wages or other remuneration c) The Master's right to control the method of doing the work d) The Master's right of suspension or dismissal." " And he again approved of those four indicia. We then said:- "14. Those passages in MacKenna J's judgment have of course been cited time and again. But particularly significant is their citation in the Court of Appeal in Nethermere (St Neots) Ltd v Gardiner [1984] I.C.R. 612 at 623 in the judgment of Stephenson L.J., in which the learned judge referred to the passage I have cited above from MacKenna J. in Ready Mixed Concrete at 515 …… And then he cites the central passage: - "There must be a wage or other remuneration otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill." And then Lord Justice Stephenson said:- "There must, in my judgment be an irreducible minimum of obligation on each side to create a contract of service, I doubt if it can be reduced any lower than in the sentences I have just quoted." Then in Prior we went on to refer to the fact that Stephenson LJ's passage had been approved in Carmichael . We continued at paragraph 15:
"We have already referred to the facts of this case, which show that it is accepted that no payment was made, and the only payment of any kind that was made was simply a reimbursement of part of Miss Prior's expenses, and cannot be, nor has been suggested to have been, of itself consideration for the services the Appellant provided."
Finally at paragraphs 18 and 19, in Prior :- "18 As we have indicated, there is no category that we have seen anywhere referred to or contemplated of gratuitous or unpaid employees. Mr Faheem has said that it is a matter for reconsideration, a matter of policy as there become more people who are giving services for example to charities and other bodies, for nothing, as we appreciate that, as more people retire early, more are doing. 19 Whether such valuable people have the protection of laws, for example of natural justice, well established rights to judicial review in certain circumstances, based on reasonable expectations of how they will be treated, which go back well before the days when employment rights were first recognised as giving the kind of sanctions which are now are available in these tribunals, would be a matter for consideration on the facts of any particular case. But this is a tribunal of employment law, and we are entirely satisfied that, for the purposes of section 230 of the Employment Rights Act, we look in vain for a contract of employment in this case"[22]We agree with this. The only differential here, on any argument put forward by the Appellant, is the fact that the Applicant had the benefit of the opportunity to take part in the training courses supplied by the Respondent, which, in our judgment, cannot begin to provide any kind of similar consideration to remuneration, which is referred to by MacKenna J as the fundamental of any contract of employment.[23]The decision in Grayson , to which we have referred, has the advantage of basing itself upon the position of another Citizens Advice Bureau, and, at paragraph 17 of that judgment, Rimer J said as follows:
"17 The Tribunal was impressed by the fact that the agreement makes it clear that the Bureau will reimburse volunteers for their expenses incurred in connection with the performance of work for the Bureau. It also found as a fact that this part of the agreement extends only to true expenses. We regard this feature of the agreement between the Bureau and its volunteers as entirely unsurprising. It would, in our view, be very surprising if unpaid volunteers were expected to bear their expenses incurred in the course of their work for the Bureau, and we do not regard this feature of the agreement as providing support for the contention that in truth the agreement was one of service or for the personal provision of services. 18 We are prepared to accept that this element of the agreement, and also the provision in it to the effect that the Bureau will indemnify advisers against negligence claims by disgruntled clients, probably do, or at least may, evidence a binding contractual relationship between the Bureau and the volunteer, namely a unilateral contract in the nature of what is sometimes referred to as an 'if' contract, one which can be expressed as follows: 'if you do any work for the Bureau and incur expenses in doing so, and/suffer a claim from a client you advise, the Bureau will indemnify you against your expenses and any such claim'. But that contract is still not one which imposes on the volunteer any obligation actually to do any work for the Bureau."
And then at paragraph 20 Rimer J said this:
"… We do not ourselves regard provision to the volunteer of training as amounting to consideration for a commitment by the volunteer to provide services in exchange. The training is certainly so as to enable the volunteer to do the job, and the Bureau will reasonably expect its trained volunteers to do work for it which will show the provision of training to have been worthwhile. But the training cannot, in our view, be regarded as consideration of what the tribunal appears to have found to be some form of reciprocal undertaking by the volunteer to honour some minimum commitment. The agreement itself makes no such suggestion, nor can we see how the acquisition by the volunteer of experience in the course of the provision of his services can amount to consideration for what the tribunal appears to have found to be such a reciprocal undertaking. The notion that the acquisition of the experience which the doing of a particular job will give can be regarded as consideration for the performance of the job itself is one which we cannot understand."
As we have indicated, that decision of Rimer J is a fortiori, because not only does he reject the suggestion implicitly that there is a contract of employment, but he concludes there is not even a contract personally to do any work.[24]We are satisfied that in any event there is no contract at all here, contrary to the view, if such there was, of the Employment Tribunal in the passage to which exception is taken in the Respondent's Notice. All there is is what Rimer J has referred as an "if" contract, or a "limited unilateral contract", that if the Appellant attended, his expenses would be reimbursed, such that he could have claimed any unpaid expenses in the County Court. However, he has no claim for unfair dismissal, and the Employment Tribunal was right, not only for the reasons it gave, but also, by virtue of the correction we have made in relation to paragraph 19, for the reasons which we have set out by reference to the authority, binding on it, in Prior , which was not cited, and the subsequent authority in Grayson , which could not be cited.[25]In those circumstances this appeal is dismissed.

Cited in 1 later judgment