THE LONDON FITNESS CONSULTANCY v MISS L HICKSON [2005] UKEAT 0160_05_0906
[1]APPEARANCES For the Appellant MR MARTYN WEST Deputy Advocacy Litigation Manager Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB For the Respondent MR ADAM OHRINGER (Of Counsel) Instructed by: Law for All PO Box 230 Brentford Middlesex TW8 9FL SUMMARY Transfer of Undertakings, Contract of Employment -&- Unfair Dismissal Appeals against: Order refusing Appellant a review of decision that Respondent had been continuously employed for a period including time when Respondent worked for a previous employer. Appeal decision.[2]Employment Tribunal's decision on mitigation of costs – appeal allowed and remitted to different Employment Tribunal. THE HONOURABLE MR JUSTICE SILBER I. INTRODUCTION II. THE APPEAL AGAINST THE REFUSAL TO REVIEW THE DECISION "Subject to the provisions of this Rule, a Tribunal shall have power on the application of a party or of its own motion to review any decision on the grounds that (d) New evidence has become available since the conclusion of the hearing to which the decision relates provided that the existence could not have been reasonably known of or foreseen at the time of the hearing or (e) The interests of the justice require such a review." "9. In considering whether the Applicant was an employee of Portman Square Fitness Limited, the Tribunal applied a multiple test. The Tribunal looked at all factors which pertained to the relationship between the Applicant and Portman. The Tribunal took the view that all facts pointed to the Applicant being an employee, save for her tax treatment. 10. Such factors included those which had been set out in the findings of fact. They include the fact that the Applicant was provided with a job specification, the fact that she had fixed hours, the fact that she worked three fixed times on set shifts, the fact that Portman believed that she was an employee and treated her as such, the fact that she needed permission to take time off or to change her shift. The fact that she was told from June 2001 that she was entitled to holiday, the fact that after the Respondents took over in February 2002, there was no change in the work she did or the way that she was treated, the fact that she was subject to management control on a daily basis by Kerry Record and then Laurent Lery, the fact. significantly. that the Applicant was disciplined by Miss Record soon after March 2000, the fact that she wore the company's uniform and the fact that she ran the business while she was at work, fulfilling a variety of roles. 11. The Tribunal asked itself the question – was the Applicant in business on her own account? The answer plainly here was, no she was not. The Tribunal were not satisfied that the Applicant was self-employed when applying that test. 12. The Tribunal asked itself if there was mutuality of obligation which is an essential feature of employee status. The Tribunal took the view that there clearly was mutuality of obligation here. Evidence by the shifts which the company required the Applicant to work and the Applicant's obligation to work such shifts. 13. The Tribunal then asked itself what factors were inconsistent with employee status? The only factor that the Tribunal perceived was the Applicant's tax treatment and her belief that this made her self-employed. Although the Tribunal took this into account, the Tribunal did not consider that it outweighed the other factors which overwhelmingly pointed to employee status. The Tribunal's decision therefore is that the Applicant was an employee of Portman Square Fitness Limited. Her employment therefore started on 27 March 2000 and continued with them up until 31 January 2002". "I can certainly confirm that Ms Hickson would not accept employee status while she was working with Portman Square Fitness. She made it clear that her main profession was an actress and model. Therefore, not only was she limited in the number of hours she could work, but that she could not have a set work schedule as her time at the fitness club would have to be adjusted to her acting jobs. Portman accepted these conditions. I believe that our accountant, Jonathon Kendall, can confirm this. He recommended that we employ Miss Hickson but she made it clear that her other commitments took precedence". "Furthermore and more conclusively, the Tribunal were not satisfied that allowing the Respondents the opportunity to call Mr Harris to rebut the evidence of Kerry Record would have affected the Tribunal's decision". "The Tribunal noted firstly that the Applicant offered the exchange of witness statements to the Respondents by letter dated 8 April 2003 but the Respondents had not replied. If the Respondents had replied, it would follow that they would have had Kerry Record's statement prior to 10 April 2003". It is now accepted that the Appellants had not received this letter of 10 April 2003 and thus there might well be some error in the Employment Tribunal's determination. Nevertheless we do not consider that this means that an error of law was made by the Employment Tribunal for two reasons. First, as we have explained, the Employment Tribunal said that it was not satisfied that allowing the Respondents an opportunity to call Mr Harris's evidence to rebut the evidence of Kerry Record would have affected the Tribunal's decision. Second, in any event, it is pointed out that the Appellant could have sought an adjournment during the hearing of 10 April but it chose not to do so. Finally, we are of the view that having looked at the evidence and all the reasoning of the Employment Tribunal, it is quite clear that it carried out a fair and proper balancing exercise before concluding that a review should not be allowed. Thus, we dismiss the appeal against the refusal of the Employment Tribunal to review the decision that the Respondent was an employee of PSF. III. THE MITIGATION ISSUE