Appeal No.	EAT/1098/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 March 2000

Before
HIS HONOUR JUDGE COLLINS CBE
MISS C HOLROYD
SIR GAVIN LAIRD CBE

MR M R AMIN	APPELLANT

JOHN MOWLEM & CO PLC	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	John Antell
(of Counsel)
Instructed by:
Somerset Law Centre
Ringmarsh House
Horsington, Templecombe
Somerset
BA8 0EL	

JUDGE COLLINS:

1.	This is the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Stratford.  The reserved extended reasons were promulgated on 3 August 1999.  The Tribunal held that the appellant was debarred from making a claim in relation to unfair dismissal or racial discrimination because he had enjoyed less than two years service with the respondents. 

2.	By the Notice of Appeal dated 2 September 1999, Mr Antell who appears on behalf of the appellant asserts a crucial error of fact made by the tribunal.  He goes to paragraph 12 (c) of their reasons:-
“Mr Hall informed the Applicant that there was a position which might be available for the Applicant.  However, he stated that employment would be with a company which supplied labour to the Respondents for the Jubilee project, namely one MPB Structure Ltd.”

3.	Mr Antell says that the sole evidence for conclusion was a statement made by Mr Hall which the Tribunal had read but declined to admit in evidence. He maintains that the only basis on which that could have appeared in their reasons was that they had, contrary to their own ruling taken account of the evidence. 

4.	The basic facts are that the appellant worked as an assistant quantity surveyor on the Jubilee Line extension, managed by Mowlem, between 17 February 1995 and 16 November 1998.  There is no dispute that between 12 May 1997 and 16 November 1998 his contract of employment was with Mowlem. The question for the tribunal was by whom, if anybody, was he employed between 17 February 1995 and 12 May 1997.  Did MPB Structures Ltd employ him or was he self-employed?  In paragraphs 9 to 12 of their reasons, the Tribunal set out the law in unexceptionable fashion, indicating that they had to look at all the facts of the case in order to determine the question. In paragraph 12 they set out all the facts which they considered to be material.  The Tribunal's view that between 1995 and 1997 the appellant was self employed was dictated by the following principal findings:  
(i) that at the end of his first working week, the appellant was remunerated by MPB Structures Ltd.  
(ii) that during that period he received tax deductions certificates from MPB Structures Ltd and submitted accounts to the Inland Revenue on the basis that he was a self-employed person 
(iii) that in March 1997 he actually applied for a job formally with Mowlem stating in the course of his application that MPB Structures Ltd employed him.

5.	Mr Antell submits that all of those facts are beside the point because the initial oral contract, as to which only Mr Amin gave admissible evidence, was between Mr Amin and Mowlem and therefore the tribunal should have ignored all the facts which pointed in an opposite direction.  In our judgment that imposes far too narrow a restriction on the ambit of the Tribunal’s consideration.  In our judgment the Tribunal was correct to look at the whole history and the whole context in order to draw inferences and the principal facts which we have set out in this judgment are quite inconsistent with the appellant having been employed directly by Mowlem in the early years. Those inconsistencies stem unequivocally from his own conduct and own actions.  In our judgment the Tribunal made its decision on the basis of facts, which proceeded mainly from the appellant's own evidence and were quite sufficient to justify their conclusion. We detect no reasonably arguable point of law dismiss this appeal.