MR S AUGUSTIN v 1) TOTAL QUALITY STAFF LTD 2) MR G HUMPHRIES [2008] UKEAT 0343_07_0102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0343_07_0102Case No Appeal No. UKEAT/0343/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S AUGUSTINAPPELLANT1) TOTAL QUALITY STAFF LTD 2) MR G HUMPHRIESRESPONDENTS
Before
His Honour Judge Peter ClarkDate 1 February 2008
[1]APPEARANCES For the Appellant MR E DIVARIS (Representative) Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ For the First Respondent MR B DRUKER (Representative) For the Second Respondent No appearance or representation by or on behalf of the Second Respondent SUMMARY JURISDICTIONAL POINTS Worker, employee or neither Continuity of employment Whether agency worker employed by agency under a series of daily contracts of service as opposed to an overarching contract. Held: he was. The question of continuity of employment remitted to the Employment Tribunal. HIS HONOUR JUDGE PETER CLARK This is an appeal by the Claimant, Mr S Augustin, against the judgment of an Employment Judge, Miss Sarah Moore, sitting alone at the Stratford Employment Tribunal on 19 March 2007 at a Pre Hearing Review, by which judgment she dismissed the Claimant's claim of unfair dismissal and wrongful dismissal brought against the First Respondent, Total Quality Staff Ltd. That Judgment with reasons was promulgated on 18 April 2007.[2]The issue at the PHR is set out in this way at paragraph 1 of the Reasons:
"The purpose of this Pre Hearing Review is to determine whether or not the Claimant was an "employee" of the First Respondent at the relevant period of time."
It was accepted by the Respondent that the Claimant was a worker within the meaning of s230(3) of the Employment Rights Act 1996 and indeed for the purpose of entitlement to holiday pay under the Working Time Regulations 1998.[3]The Employment Judge found as fact that the Claimant first began work as a fork lift driver and warehouse worker at the premises of Coca Cola in August 1996. He was supplied by the Respondent employment agency. There is before me, and was before the Employment Judge, written terms of engagement signed by the parties. I should set out clause 5 of that document:
"The Temporary Worker is under no obligation to accept any shifts offered to him. However, once a worker has accepted he is then obliged to carry out his duties (to the best of his ability and always within the boundaries of any Health & Safety legislation) until the shift is completed. The Company reserves the right to deduct an equivalent amount from your pay for substituting cover, if for whatever reason, the Temporary Worker does not complete a shift having started it or accepted it."
[4]The findings of fact include the following. That when working at the warehouse the Claimant and his colleagues were under the supervision of a Mr Humphries, who was employed by the Respondent. The Claimant worked long and regular hours during the period from August 1996 until final termination of the relationship. When working he was provided with a uniform. It was accepted by the Employment Judge that he fell under the control of Mr Humphries, the Respondent's supervisor, rather than Coca Cola.[5]In determining the question as to whether or not he was an employee, the Employment Judge identified what seemed to her to be the real question at paragraph 8 of her Reasons in this way:
"The real question is therefore whether there was an over-arching umbrella or global contract of employment that existed over and independently of those individual contracts of engagement that came into effect on a daily basis under the express terms of engagement;"
And there is a reference to the Judgment of Elias JP in James v London Borough of Greenwich [2007] IRLR 168 para 19.[6]I have been shown a number of authorities by the advocates before me. Of particular interest is the Judgment of His Honour Judge Richardson delivered on 12 December 2007 in North Wales Probation Area v Mrs Edwards UKEAT/0468/07/RN. In that case the claimant was on a list of persons who were offered 'sessional employment', as it was described, as relief hostel workers for the respondent. There was no obligation on the respondent to offer work; nor on the claimant to do it if offered. However, when she was offered and accepted work, the claimant worked in all respects as a member of permanent staff would work, subject only to limitations on the duty she was required to perform. She worked under the direction of a senior probation officer in charge of the hostel and was required to carry out his instructions. The Employment Tribunal Chairman found that, in these circumstances, there were a series of contracts of service when the claimant was working, but no overarching contract of employment which covered the periods of absence from work. That decision was appealed to the Employment Appeal Tribunal. Judge Richardson upheld the Chairman's finding. In doing so, reference was made to the decision of the Court of Appeal in Cornwall County Council v Prater [2006] IRLR 362 , particularly the judgment of Mummery LJ at paragraph 40(5). That was the case of the music teacher who was not obliged to take work offered by the County Council, nor was the County Council obliged to offer her work. But when she, as a music teacher, took a pupil, she was obliged to fulfil her commitment to that particular pupil.[7]I have also drawn the attention of the parties to the judgment of Mr Justice Langstaff in Cotswold Developments Construction Ltd v Williams [2006] IRLR 181 on the question of whether a succession of contracts of short duration may in themselves be contracts of service, drawing on the judgment of Elias J in the case of Stephenson v Delphi Diesel Systems Ltd [2003] ICR 471 : see particularly paragraphs 11 and 12 of that Judgment.[8]Looking at the current state of the authorities, it seems to me that the question in this case was not simply whether or not there was an overarching, umbrella or global contract of employment, as the Employment Judge thought (see paragraph 8 of her reasons), but whether there were a series of daily contracts of service. As to that, looking at the findings of fact, and particularly at the question of control, exercised unusually by the Respondent agency rather than by their client or end user, it seems to me clear from clause 5 of the agreement made between the parties that once a day's work was offered and accepted by the Claimant, then for that day a contract of service came into existence. Thus, the appeal against the finding that the Claimant had no employee status succeeds.[9]However, that raises a further question. In Edwards , Judge Richardson noted at paragraph 13 of his Judgment that the issue for the Tribunal Chairman at the Pre-hearing Review was simply whether Mrs Edwards was an employee. If, as the Chairman held, she was an employee under a succession of short contracts, questions would arise about the continuity of her service for the purposes of unfair dismissal, which was the remedy claimed under the 1996 Act. The Chairman was not concerned with those questions at the Pre Hearing Review.[10]I have been addressed by both advocates on the application of s212(3), particularly sub-sub-section (b) of the 1996 Act in relation to continuity of employment in the present case, having found that the Claimant was employed under a succession of contracts of service when working, but not when absent from work through sickness, holiday, or on one occasion when for quasi disciplinary reasons he was not offered work for two weeks: see paragraph 10 of the Reasons.[11]That issue, it seems to me, was not strictly before the Employment Judge at the Pre-Hearing Review on the basis of the preliminary issue as formulated for her determination. In these circumstances, in my judgment it must be for the Employment Tribunal to determine the question of continuity, if it is raised. I say that because there is a presumption of continuity under s210(5) of the 1996 Act. It seems to me that if the issue is to be raised it must be determined on the facts, and I am not satisfied that the necessary relevant findings of fact were made on the last occasion. Thus I shall remit this matter to the Employment Tribunal for determination either by way of a further Pre-Hearing Review before a different Employment Judge or at a substantive hearing, this being a case in which the claims of race discrimination and outstanding holiday pay must be determined on their merits in any event. That will be a matter for directions by the Employment Tribunal. To this extent the appeal succeeds and is allowed.