Appeal No.	 EAT/335/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 November 1999

Before
HIS HONOUR JUDGE D PUGSLEY
LORD DAVIES OF COITY CBE
MR J R RIVERS

MR F OSHINUSI	APPELLANT

MOVING VENUE CATERERS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr A Olvfeko
Messrs Olufeko & Co
Solicitors
85 Kingsland Road
Shoreditch
London E2 8AG	

JUDGE PUGSLEY:
1	This is an appeal from a decision of London (South) where it found that the Applicant was not an employee. 

2	Before the Employment Tribunal it was agreed that the same issues arose in both section 230 of the Employment Rights Act 1996, and section 78 with the Race Relations Act. It was further agreed on the particular facts of their case that the race discrimination claim was dependent upon the assertion that the Applicant was an employee, this would effectively dispose of both claims if it were found the Applicant was not an employee.  We are grateful that this imcession has been repeated in the skeleton argument before us. 

3	We have carefully considered the skeleton argument which if we may say so seeks to re-plough the field before the Tribunal.  The position is summed up by the Employment Tribunal paragraph 6 where they say that: -

“ the Applicant worked for the Respondents as a waiter/silver service/ barman depending on the Respondents requirement at a variety of functions.  We find that on the vast majority of occasions the Applicant on his evidence worked in the evenings.  It was very rare indeed for him to work for the Respondents during the day.  A typical function we find would take up most of an evening from approximately 5:00pm until midnight, and insofar as these matters can be averaged, the average was therefore approximately six hours per function.  We saw no reason to doubt the wages figures put forward by the Respondents and upon carrying out a mathematical analysis of these figures we accept that the Applicant worked on average 31 hours or so per month in his last year of working.  For the year before he had worked somewhat greater hours.  That in turn presented the picture that the Applicant, in average terms carried out approximately five functions per month for the Respondent.  The wage information before us confirms that some months involved hardly any work by the Applicant for the Respondent.  The month of December involved rather more work by the Applicant for the Respondent”.

4	The Tribunal then went on to consider the case of O Kelly v Trust House Forte Plc [1983] IRLR page 36 and to find in paragraph 7: - 

“There was no written contract of employment.  The Applicant was not entitled to sick pay, holiday pay, pay over bank holidays, pension entitlement or any fringe benefits.  The Applicant provided his own white shirt where appropriate for functions.  Equally from time to time he was provided with a white jacket or “theme” tee-shirt on occasions by the Respondent.  He did not invest any of his own capital when attending functions.  When attending functions he was viewed as part of the Respondent organisation in its relationship with the customer and third parties.  Throughout the entire period the Applicant was paid monthly in arrears after deduction of income tax and national insurance contributions by the Respondent organisation”.  

The Tribunal went on in paragraph 8 to say: -

“The applicant’s own view of the employment relationship was we find consistent with the actual facts.  We have no doubt at all on all the evidence that the applicant always realised that he was viewed by the company as a “casual” worker who was not a member of the permanent staff.  The Applicant perfectly understandably relied heavily on a letter written by Mr Beggs in August 1995 for the purposes of an American visa for the Applicant.  Whilst that letter is certainly consistent with an approach by the Respondent that the Applicant had been “employed” we do not accept hat that was anything other than a letter written to help the Applicant obtain a visa for the USA, and it was not intended by either party to reflect the legal employment status of the Applicant.  We reject the argument that the letter somehow raised an Estoppel between the parties”. 

5	The Tribunal then went on to make a series of findings of fact about what happened and,  on the basis of those findings went on to decide that the Applicant was not an employee as there was not mutuality of obligation in this case.  The Tribunal noted that the fact the Applicant had worked for a number of years and no doubt on the majority of occasions did accept work does not of itself create mutuality of obligation.  

In paragraph 14 the Tribunal state: -

“We are satisfied that over that period the Respondent organisation had hired literally hundreds of casual staff upon a similar employment basis as they entered into with the Applicant.  The Applicant was very much atypical of staff used by the Respondent, the majority of whom were students or occasional visitors to the country and people of that kind.  There was no rota or system of any kind so far as we could deduce from the evidence as to who was allocated work when.  We find there was no pressure upon staff to accept bookings (as seem to be implicit on the findings in the O’Kelly case), and that the position of power exercised by the company in the a situation was not exploited by the Respondents in the way in which it sometimes can, and thereby perhaps give rise to a compulsion to accept work”.  

The Tribunal then went on to say this in paragraph 15: -

“Putting all the foregoing factors together we find that the preponderance of factors were inconsistent with a conclusion by us that there was ever a contract of employment and although these cases can sometimes be rather difficult, we came to the firm and clear conclusion that the reality of the relationship between the Applicant and the Respondent was indeed a casual hiring upon an ad hoc basis even though that occurred several times per month and had continued for a number of years”.

7	We have not read out all the salient features which can be found in the judgment.  We note with interest that the House of Lords decision has been reported today in the Times.  The reasoning in that case supports the reasoning of this Tribunal, (Carmichael to Another –v- National Power Plc) The Times – 23rd November 1999.

8	In this case much reliance has been placed on the fact, as was mentioned in the decision, at one stage Mr Stockton director of operations wrote to confirm the Applicant was an employee of The Moving Venue Caterers Ltd: -

“Mr Oshinusi has been employed by The Moving Venue as a Bartender for a period of approximately six years.

Should any person require further details of Mr Oshinusi’s employment with this company, they should contact myself at the address printed on this stationery”. 

9	It is suggested in the skeleton argument that this created an estoppel.  This argument was considered by the Tribunal. There is very clear authority that how the parties define the relationship is not in itself determinative of what the relationship is.  We do not consider the Tribunal erred in law.  

10	In the case of Hall v Lorimer  [1994] ICR 218/226 the Court of Appeal approved a test set out by Mr Justice Mummery.  During the course of that judgment Mr Justice Mummery said this: -

“In order to decide whether the person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity.  This is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from, a given situation.  The object of the exercise is to paint a picture from the accumulation of detail.  The overall affect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and making an informed, considered, qualitative appreciation of the whole.  It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details.  Not all details are of equal weight or importance in any given situation.  The details may also vary in importance from one situation to another.  The process involves painting a picture in each  individual case”.

11	In our view this Tribunal asked itself the right question and followed the approach laid down by Mr Justice Mummery.  We do not consider there is any arguable ground and we dismiss the Appeal.