Appeal No. EAT/1374/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 March 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MR J R RIVERS

LONDON BOROUGH OF CAMDEN	APPELLANT

(1) MRS R N PALMER
(2) KELLS NURSING BUREAU	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS ADRIENNE MORGAN
(of Counsel)
Instructed by:
London Borough of Camden
Legal Services
Town Hall
Judd Street
London WC1H 9LP	

JUDGE J McMULLEN QC

1	This case is conducted in accordance with section 28(3) of the Employment Tribunals Act 1996, the Respondent consenting to the case being heard by a two member EAT division, because of transport problems today. 

2	The appeal concerns the definition of “employee” for the purpose of claims of unfair dismissal and sex discrimination.  It is an appeal by the Respondent against a Decision of an Employment Tribunal which sat for three days in 2001 and promulgated its Decision with Extended Reasons on 28 September 2001.  The Applicant was represented by Counsel from a Law Centre, and the Respondent, as here, by Miss Morgan of Counsel.  

3	The Applicant claimed unfair dismissal and sex discrimination.  A preliminary point was defined at an earlier directions hearing and was as follows:  was the Applicant an employee within the meaning of section 230 of the Employment Rights Act 1996?  If so, by whom, and whether a contractual relationship existed between the Applicant and the Respondent, Camden, and if so, of what nature.  

4	The Tribunal determined the preliminary point in favour of the Applicant, at least as against the First Respondent, Camden.  It dismissed the applications against the Second Respondent, Kells Nursing Bureau and it set out a procedure for hearing the substantive claims.  There is no appeal by the Applicant against the dismissal of her claims against the Second Respondent.  

5	The relevant facts are that Camden Social Services Department is responsible for maintaining accommodation for elderly and vulnerable people.  It operates a number of residential homes.  The Applicant worked in a number of these homes from 1991 until the relationship terminated.  The Applicant had worked at one home from 1991 until its closure in 1999, and she was transferred by Camden until the termination of the relationship some time in 2000.  The Second Respondent to the proceedings, Kells, is an employment agency which places temporary nursing and care staff with health authorities, they operate a bank of nursing and care workers.  It should be noted that a full description of this term is contained in the judgment of the Court of Appeal in Clark -v- Oxfordshire Health Authority [1998] IRLR 125.  It is common ground that the Second Respondent had very little contact with the Applicant and had no control over the way she did her work.  We need say nothing more about the relationship between the Applicant and the Second Respondent.  

6	The issue for the Tribunal was to determine the relationship between the Applicant and the Respondent and to investigate whether there existed a contract of employment.  The two essentials in any such approach are to consider the irreducible minimum of mutual obligation as between employer and employee, and the existence of control by the employer - see Montgomery -v- Johnson Underwood Ltd [2001] IRLR 269, Buckley J. with whom Brooke LJ and Longmore J. agreed.  Carmichael [2001] IRLR 43 HL is cited.  The Tribunal recognised that in the absence of documentation, Carmichael directed the attention as a question of fact to material other than that on paper.  As the Tribunal correctly directed itself at paragraph 18 of its Extended Reasons:
“When the intention of the parties objectively ascertained has to be gathered partly from documents but also from oral exchanges and conduct, the terms of the contract are a question of fact.”

The Employment Tribunal was thus engaged, correctly we think, in assessing the facts as produced before it during three days examination under this preliminary point.  

The criticism made by the Respondent today is that the Tribunal paid lip service to the proper law and considered, as Miss Morgan put it, a hotpotch or ragbag of factors and was distracted from the essential task of looking for the irreducible minimum.  She accepts that the Tribunal correctly directed itself and made proper findings in relation to the issue of control and no appeal lies against its finding that the Respondent exerted such control as was appropriate to the existence of an employment relationship.  She contends, however, that that must be bolted on to the other factor, that is a mutual obligation to work and provide work.  In its approach to the organisation of factors, the Tribunal has regarded itself as being influenced by certain factors which it sets out in paragraph 18 of its Extended Reasons.  The approach of a Tribunal in looking at factors and weighing them and giving emphasis as appropriate to certain of them, is one which is enjoined upon it from authorities such as O’Kelly -v- Trust House Forte [1983] ICR 728 CA.  

7	In this case, particular criticism has been made on behalf of Camden of the Decision by the Tribunal relating to the obligation of Mrs Palmer to provide work or otherwise.  The Tribunal recorded that the Applicant had worked the staff rota which was posted a month ahead and indicated absences. Every time Mrs Palmer was to be away, which the Tribunal found to be on relatively few occasions, her place was taken by others doing extra shifts.  The Tribunal recorded that it was common ground that the Applicant performed at least the great majority of her duties to the same extent as would have a permanent member of staff.  

8	It also found that the Applicant had a very well founded expectation of continuing work which had been refined into an enforceable contract by the regular giving and taking of work over such a long period, basing itself on Nethermere (St Neots) Ltd v Gardiner [1983] ICR 319 EAT.  The Tribunal, on a number of occasions, compared the Applicant to being in a position equivalent to those employees who had signed a written contract of service.  The Tribunal regarded itself as entitled to look not simply at the way matters stood at the beginning of the relationship, but also at how matters evolved over time.  It found that there had been an evolution and that at the Respondent’s request the Applicant had, some years into the contract, made herself available on a regular basis to cover five shifts a week and that was equiperated to a person who had signed a contract of employment.   

9	The factors which the Tribunal considered as particularly influential included: that the Applicant had been engaged over nine years; that the Respondent had asked her to work effectively for a time equivalent to that of permanent employees; the nature of her work was the same; she was an integral part of the day to day operation, a key member of the team; she was rostered in advance four weeks at a time; Camden set the level of pay; and that the working relationship between Camden and the Applicant had crystallised long before the Second Respondent became involved.  

10	The Tribunal expressly directed itself in accordance with the authorities which were put before it and us.  In particular, the Tribunal regarded as placing at the forefront of its considerations “the irreducible minimum facets of a contract of service” as it put it, mutual obligation, on the one hand of the employer to provide work and on the other of the employee to undertake the work so provided.  

11	Miss Morgan does not criticise the self-direction based upon the relevant authorities, but simply the application of that direction to the facts of the case.  She drew our attention to the judgment of the EAT in Hewlett Packard -v- O’Murphy [2002] ICR 4,  Douglas Brown J. which she said contained a number of seminal similarities to our own case, see.  That case contained a review of the authorities including those dealing with simple labelling, see paragraph 48 - 50 and also a reference to the question of integration into the workforce.  We do not consider that the instant case involves a problem as to labelling, this being a low priority in our view through the eyes of the Employment Tribunal and a matter entirely for it to weigh.  

12	It is noted that in a passage from Morison J. (P), in his judgment on behalf of the EAT, in Secretary of State -v- Bearman 1998 ICR 431 that the issue of being integrated into the workforce, or being part of the team, is neutral, i.e. it is consistent with either employment or self-employment.  It seems to us that that is a matter the Tribunal should take into account.  The Tribunal has indicated that in this case, being integrated into the team, being a key worker, and being so established, subject to regular staff appraisal and so on, was a factor which indicated more of an employment relationship than of a non-employment relationship.  We do not consider the Tribunal can be faulted as a matter of law in taking that factor and placing such weight on it as it saw fit, and in coming to the conclusion that in the circumstances of that case, it was not simply a neutral indicator, but tended towards the employment analysis.  The Tribunal directed itself in accordance with Montgomery v Johnson Underwood [2001] IRLR 269 CA and Carmichael -v- National Power [1999] ICR 1226 HL and applied the law correctly to the material in front of it.

13	It is, of course, possible for the decision to have gone the other way, but we detect no error in the legal direction on mutual obligation nor in the application of that direction to the facts with which it was concerned at the preliminary hearing of this case.  That from the list which particularly influenced the Tribunal, it is possible to say the Tribunal emphasised or played down certain factors does not mean the Tribunal has committed an error of law. 

14	It is, in our view, the task of the Tribunal to examine all the facts to weigh the factors as pointing one way or the other in an “employment” relationship and to come up with a judgment, which may yet, in the hands of a different Tribunal, point to a different conclusion.  This Tribunal reached a correct Decision on the material it had in front of it, and correctly directed itself according to the law.  We therefore dismiss the appeal by the Respondent, Camden.  

15	We are grateful to Miss Morgan for her very helpful submissions today, drawing out her Skeleton Argument which we had before us.