Appeal No. PA/1322/02/ST

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 February 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
(SITTING ALONE)

KATHARINE MACKENZIE	APPELLANT

BURNLEY BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

(RULE 3(10) APPLICATION)

Revised

	APPEARANCES

For the Appellant	MR C GOODALL
(Representative)	

JUDGE J McMULLEN QC:

1	This is an application from a decision of the Registrar in respect of a Notice of Appeal lodged on 7 October 2002 by the Applicant.  I will refer to the parties as Applicant and Respondent. The Applicant claimed that her fixed-term contract with the Respondent Council had been terminated by way of wrongful dismissal on the grounds of redundancy. The Respondent indicated that the proper Respondent was not Burnley Borough Council.

Introduction
2	Arguments took place before the Employment Tribunal sitting at Manchester, Chairman Mr J.E. Goodman on that issue leading to a decision promulgated on 5 September 2002, after a hearing on 19 August.  The Applicant had not been employed ever by the Respondent, and it thus determined the preliminary issue against the Applicant and dismissed the Originating Application.  

3	The Applicant represented herself, called no witness but gave evidence herself.  The Respondent was represented by a Solicitor, who called the Programme Officer.

4	The Applicant appealed against the decision. The Registrar determined on 30 October 2002, that the EAT did not have jurisdiction, since her Notice of Appeal did not indicate any error of law.  This decision was made following the sift of the Notice of Appeal in accordance with PD 2002 by Mr Justice Wall. He had indicated in a document disclosed to the Applicant that it seemed unarguable that the Applicant was employed by the Respondent Council and so recommended that the Registrar exercise her power under Rule 3(7).

5	Today, Mr Goodall has appeared and made succinct arguments to back up a detailed skeleton argument and affidavit produced by the Applicant.  It is important to understand my jurisdiction under Rule 3(10) and Employment Tribunals Act 1996 s. 21(1), which is to consider whether the Notice of Appeal raises a question of law.  In my judgment it does not, and I will dismiss the application from the Registrar and uphold her decision.  

Employment Tribunal findings
6	The Applicant had been engaged by the South West Burnley Development Trust (a Company Limited by Guarantee) and had been offered a contract of employment by them on 2 May 2001 for a fixed-term period expiring on 30 March 2002.  Her case was that she was an employee of the Respondent Council, because the Council effectively controlled all the activities of the Trust, as a result of the funding arrangements under which the Trust operated.  

7	The issue therefore for the Tribunal was, as the Applicant put it, a question of reality.  It decided to look at the facts behind the relationship.  It considered properly the facts which pointed towards, and away from, the Applicant being employed by the Council or by the Trust.  It also directed itself in accordance with what it described as “relevant legal provisions” in a way which I consider to be entirely correct.  

8	The Tribunal reached the conclusion that the Respondent did not have a controlling interest or influence over the Committee which ran the Trust.  The Applicant conceded that, whenever advice was required on a day-to-day basis, she would consult the Project Manager employed by the Trust or one of the Trustees.  Disciplinary action had also been conducted against co-employees by the Trust and not by the Council.  The Tribunal noted as follows:

“26	We are not unsympathetic to the applicant’s situation as a result of the termination of her employment.  She is, however, in precisely the same situation as many other employees who are made redundant due to an investor or lender withdrawing funds from their employer.  Other than in the most exceptional circumstances (which do not apply in this case) the survival or closure of a business or undertaking as a consequence of the decision of an investing or lending institution to continue to provide or terminate funding facilities does not create an employer/employee relationship between the investing or lending institution and the staff of that undertaking notwithstanding the fact that the termination of the staff’s contracts of employment is directly connected to a decision to withdraw funding and irrespective of whether the funding is within the private sector or the public sector.”

9	Having heard the evidence the Tribunal was entirely satisfied about the decision which it was making.  In my judgment the way in which this case was conducted was to consider the reality of the relationship within the factual context in which the claim arose.  The Tribunal noted that the Applicant had not brought proceedings against the Trust, despite the invitation from the Tribunal to do so.  Mr Goodall told me today that the reason was that the Trust was insolvent.  Nevertheless, that entirely pragmatic decision by the Applicant, which is highly understandable, cannot control the application of the law to the facts in this case.

10	The Respondent is correct in the submissions, dated 3 February 2003.  The Applicant was employed by the Trust;  that is not only the legal analysis but the reality of the position.  I accept that the two were completely separate legal entities and that the analysis given by the Tribunal, of the relationship between an investor, is quite apt to describe the position here.  

11	The Respondent Council was an accountable body for the purposes of funding from Central Government under a statutory regime which has not been shown to me, but which I understand from the description given by the Respondent. Thus it is that the Applicant’s employment relationship is with the Trust

12	This appeal raises no question of law, simply disagreement with the factual findings by the Employment Tribunal following a correct self direction on the law.  I therefore uphold the Registrar’s decision.  No further action is to be taken and the Notice of Appeal is dismissed.