Appeal No.	EAT/0393/03/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 October 2003

Before
HIS HONOUR JUDGE J R REID QC
MR K EDMONDSON JP
MISS S M WILSON CBE

MARTIN ALEXANDER REID	APPELLANT

ELMCREST PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C WOOLLISCROFT
(Solicitor)
Messrs Hacking Ashton
Solicitors
Berkeley Court
Borough Road
Newcastle Upon Tyne
ST5 ITT	
For the Respondent	MR W OSMOND
(Solicitor)
Messrs Osmond & Osmond
Solicitors
1 & 2 Hare Place
47 Fleet Street
London EC4Y 1BJ	

HIS HONOUR JUDGE J R REID QC

1	This is an appeal from a Decision of an Employment Tribunal held at London Central on 5 March.  The Decision was sent to the parties and entered on the register on 31 March.  By the Decision the Employment Tribunal unanimously held that Mr M A Reid, the Applicant, was not an employee of the Respondent, Elmcrest PLC, and further that he was not a worker within the meaning of section 230 of the Employment Rights Act 1996.  They therefore dismissed the Applicant’s claim.  

2	The view we take is that in the light of all the material before us, the only proper way of disposing of this matter is by remitting the case to a differently constituted Tribunal to be re-heard.  

3	In those circumstances the less we say about the facts of the case the better.  In brief the position was that Mr Reid had been a director of an earlier company which went into liquidation.  He was also contemporaneously a director of Elmcrest, the Respondent, until 3 May 2002, at which point he resigned.  He continued to do work for Elmcrest until late August 2002.  The bulk of that work appears to have been at the Ministry of Sound, where he was installing, with the assistance of others, a financial package known as “Willow”.  

4	The complainant asserts that he was an employee and that he was not paid wages for July and August because, in the case of the July payment, the cheque was stopped and he never received a cheque for the August payment.  He further asserts that he was entitled to a payment in respect of March, being a period during which he was employed by Elmcrest’s predecessor, but he asserts that by virtue of TUPE the liability for that payment was transferred to the Respondent.  

5	The Tribunal was confronted on the one hand by his assertion of employment, and on the other hand by an assertion that he was neither an employee nor a worker, but each side appears to have asserted that the Appellant was working full time at the Ministry of Sound, subject to doing a certain amount of administrative and other work in connection with servicing the Willow package installed at UBS Warburg.  

6	The difficulties that the Tribunal had were compounded by the fact that Mr Reid produced timesheets to Elmcrest purporting to show that in effect he was working full time for Elmcrest, but the Tribunal took the view that he had not in fact been doing sales or management work, as asserted in those timesheets.  

7	The Tribunal was also confronted with invoices for work at the Ministry of Sound produced by Mr Reid, showing that he did work for Elmcrest at the Ministry of Sound but those invoices are themselves inconsistent with his own timesheets.  Elmcrest asserted in its answer that he had indeed worked full time on the Ministry of Sound project, but that by virtue of some arrangement he had come to with the Ministry of Sound, he was under-billing them, that is to says he was indicating that he had worked less time for them than in fact he had.  

8	Against that confused background, the Tribunal’s findings are, not surprisingly, not of the clearest.  They found that the evidence showed quite clearly that only part of each week was engaged on the Ministry of Sound project.  They found that, we think this is a proper reading of paragraph 6, that he did not do the managerial and sales work that made up the difference of his working hours.  They found no evidence of managerial instructions and they went on to find that they were not satisfied that there was any requirement of the Respondent, that is to say Elmcrest, that work had to be carried out personally by Mr Reid.  

9	They spell out very little of the evidence on which they reached those conclusions and they say very little about the credibility or otherwise of the witnesses.  They make no mention of Mr Fonseka, who was the representative of a director, a principal witness, if not the only witness, of the company and insofar as they say anything about Mr Reid’s credibility, it is only by inference from the passages in paragraph 6 that I have referred to.  

10	In our judgment, in those circumstances, it is not possible to say with any degree of certainty why it is that Mr Reid was held not to be an employee or a worker, but equally it is not possible for us to say on the findings of fact as they have been made, whether he fell into one or other of those categories.  It is, we think, a result largely of the way in which the employer pleaded its case and the employee has presented, or failed to present, evidence in relation to what he was doing that has made the factual background so opaque, but we take the view that in all the circumstances of the case, the Decision is not one which can safely stand and that there is no alternative but to remit the case for a re-hearing before a differently constituted Tribunal.  

11	We will therefore allow the appeal for that purpose.