Appeal No.	 EAT/973/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 January 1997

Before
HIS HONOUR JUDGE C SMITH QC
SIR GAVIN LAIRD CBE
MRS M E SUNDERLAND JP

MR A BRILL	APPELLANT

JOHN CRILLEY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR A BRILL
APPELLANT IN PERSON	

	JUDGE C SMITH QC:  This is an application by Mr Brill for leave to proceed to a full hearing of an appeal by Mr Brill against the decision of an Industrial Tribunal held at London (North) on 3 June 1997 for which extended reasons were sent to the parties on 17 June 1997 when the Industrial Tribunal decided on a preliminary issue that Mr Brill had not been continuously employed for a period of two years on the termination of his employment on 21 November 1996 and, therefore, they held on the preliminary issue that he did not qualify to bring a claim alleging unfair dismissal under the Employment Rights Act 1996.

	We have heard Mr Brill in person today in support of his application for leave to go to a full hearing.  He has presented the matter extremely courteously, clearly, and helpfully and we all find that we have sympathy for his position in the light of what he said to us.  We have, of course, also considered the documents that he has placed before us, including the skeleton argument and so on.  However, we have to remind ourselves as well that it is necessary for us to find an arguable point of law before we could allow this matter to proceed to a full hearing.  It is not a question of whether we would reach the same conclusion as the Industrial Tribunal because provided the Industrial Tribunal applies the correct principles of law it is a question of fact at the end of the day for the Industrial Tribunal to decide one way or the other whether someone is or is not an employee.

	As appears from the findings of the Industrial Tribunal the preliminary issue turned on the question of the status of Mr Brill prior to 1 February 1995 since it was admitted, as it had to be admitted, that between 1 February 1995 and 21 November 1996 Mr Brill had been employed by John Crilley Ltd, the Respondent.  It was further admitted that John Crilley Ltd and Capita Resource Management Ltd were associated employers within the definition of that term, as contained in s.218 of the 1996 Act, so that the issue before the Tribunal was whether Mr Brill’s status in regard to his engagement by CRM Ltd between May 1994 and February 1995 was that of an employee or whether it constituted a contract for services.  This is always a difficult issue and has given rise to an enormous amount of case law.  The position is that there is no one definitive or conclusive test.  The Industrial Tribunal has to look at a variety of different factors and analyse the facts before them and any contract that may be before them and decide, having considered all aspects of the matter, all the relevant facts, on which side of the line a particular case falls.

	We mentioned that because we note that this is the approach the Industrial Tribunal took in this particular case because we see that at paragraph 11 they set out the law and they referred to one of the leading cases, O’Kelly v Trust House Forte [1983] IRLR 369 and they cited a passage from the Court of Appeal in that case which required them to:

“consider all aspects of the relationship, no single fact being in itself decisive and each of which may vary in weight and direction, and having given such balance to the factors [as] seems appropriate, to determine whether the person was carrying on business on his own account.”

They referred to that and they obviously guided themselves by reference to that authority.  They also referred to the case of MacMeechan v Secretary of State for Employment [1997] IRLR 355.  With regard to that particular case, we agree with Mr Brill that that recent authority was not of direct relevance to the situation which the Tribunal was considering in his case, because that was a case which was concerned principally with the difficult problem relating to the status of persons who are on the books of employment agencies under the terms of both a general engagement and who are then contracted out on a series of specific engagements.  That situation gives rise to its own special difficulties which, in our judgment, did not arise in Mr Brill’s case.  However, in our judgment the Industrial Tribunal were entitled to refer to that authority since it does again re-emphasize, in the judgment of Waite LJ, the importance of construing the terms of a particular engagement which is in issue and making a balancing exercise in relation to those terms of engagement along with all other relevant factors and that is why, no doubt, the Industrial Tribunal did refer to that decision.

	What then happened was that the Industrial Tribunal proceeded to construe the agreement and they set out, indeed, the material clauses of the agreement in full at paragraph 5 of their decision, that is to say, the first 18 clauses.  They did not deal with the last few clauses, as Mr Brill pointed out to us, but no argument has been addressed to us in relation to that omission.  They set them all out and then in paragraph 12, having set out all those terms and conditions, they set out a table relating to the various clauses under various headings, whether a clause was in favour of a decision that there was an employee-employer relationship under the heading “PRO”, whether it was quite neutral, or whether it was against, under the heading “CON”, such a status ie in favour of the self-employed or independent status of Mr Brill at that time as really being in business on his own account.  They undoubtedly made one error in that regard because they have not placed clause 10 anywhere, whereas they have put clause 16 on each side of the balance sheet.  That must be a mistake and we have no doubt that they must have intended to put clause 10 in the PRO column.

	In our judgment, with that exception, they were entitled to place those various clauses in those columns, that was within their discretion and then we note that they took into account various other factors.  One of the criticisms that is made by Mr Brill is that they took into account the fact that there were no pension provision.  He submits that they laid far too much emphasis on that, particularly in circumstances where he was making his own pension arrangements and that would not have been inconsistent with his being an employee.  In our judgment that was only one of many factors which the Industrial Tribunal were taking into account and what they said about it was correct, there was no pension provision in that agreement with CRM.  Again, Mr Brill points out, that the fact of there being no grievance procedure, which the Industrial Tribunal also noted at paragraph 13, should not have been regarded by the Industrial Tribunal as in any way an important or relevant factor, since this was a situation where everybody knew each other very well and he had known the people at CRM for a long time and dealt with their predecessor company, indeed, and therefore one would not expect there to be a grievance procedure but, again, in our judgment, the Industrial Tribunal cannot be said to have given any undue weight to that particular factor.  It was simply one of the many factors they took into account.

	Another matter is the matter of the P.45, and the suggestion was made in paragraph 10 that there was no P.45 available on the finding of fact by the Industrial Tribunal at a time when Mr Brill undoubtedly did become an employee.  But in our judgment the effects of the tax arrangements were properly dealt with by this Tribunal.  They noted that s.134 of the Income and Corporation Taxes Act 1988 is a deeming provision and does not throw light on the issue of whether someone is or is not an employee and that is why they regarded it rightly as neutral and, of course, the issue of a P.45 flows from the treatment that the Revenue give to somebody on the PAYE system as a result of s.134.  In those circumstances, in our judgment, there can be no complaint in relation to that.

	It is important to note here that Mr Brill did really acknowledge that there was a change in February 1995 from his previous status and there was an acceptance by him from then on that he was to be an employee and obviously the Industrial Tribunal were entitled to take that into account.  In our judgment, for those reasons, although we would like, in many ways, to be able to assist Mr Brill, we have concluded that at the end of the day the Industrial Tribunal here applied the correct test and reached findings of fact which they were entitled to reach and so we must uphold their decision and refuse this application.