APPEARANCES
| For the Appellant |
MR T STARR
Solicitor
Messrs Starr & Partners LLP
Solicitors
8 Queen Street
London
EC4N 1SP |
| For the Respondent |
MR I LAING
In Person |
SUMMARY
Contract Workers
The Claimant was employed by A to provide patient advocacy services at B's mental hospital. He was barred by B from access to a ward, allegedly after an incident with a patient. A then suspended him. He claimed that both A and B were guilty of race discrimination. On a preliminary issue the Tribunal held that he was a contract worker of B, within S7 of RRA. On appeal held that the Tribunal had reached a factual finding open to them and had made no error in principle. There have, I think, been very few contract worker cases; only 4 reported in 30 years; and this was the thinnest; but appeal dismissed.
HIS HONOUR JUDGE BURKE QC
The Appeal
- This is so far as is known one of only a very small number of cases since the Race Relations Act 1976, the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995 in which an Appellate Court has had to consider whether an individual was or individuals were a contract worker or contract workers within Section 7 of the 1976 Act, Section 8 of the 1975 Act and Section 12 now Section 4(b) of the 1995 Act.
- The appeal is from the judgment of Mrs Feeney, sitting as a Chairman alone at the Employment Tribunal in Manchester ant sent to the parties with written reasons on 27 September 2006. By that judgment she decided on a preliminary issue that the Claimant, Mr Laing, was at the material time a contract worker within Section 7 of the 1976 Act. She found that Mr Laing worked for the First Respondent to his claim, Partnership in Care Limited; ("PIC"); and PIC now challenge that decision.
The Statutory Provisions
- Section 7 of the Race Relations Act 1976 is, so far as is relevant,in these terms:
"7 … Contract workers
(1) This section applies to any work for a person ("the principal") which is available for doing by individuals ("contract workers") who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal.
(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a contract worker –
(a) in the terms on which he allows him to do that work; or
(b) by not allowing him to do it or continue to do it; or
(c) in the way he affords him access to any benefits, facilities or services or by refusing or deliberately omitting to afford him access to them or
(d) by subjecting him to any other detriment."
- There is no statutory definition of a "contract worker" other than that which is derived from Section 7 itself. Section 8 of the 1975 Act is in the same or similar terms. The words of the corresponding provision in the Disciplinary Discrimination Act are slightly different; but any difference is not relevant for present purposes.
The History
- PIC operates a number of medium-secure hospitals for patients suffering from mental illness. One of those hospitals is The Spinney, at Atherton, Manchester. All of the patients there are compulsorily detained under various sections of the Mental Health Act 1983. The operation of The Spinney is highly regulated. It is PIC's policy that their patients at The Spinney and no doubt elsewhere should be provided with advocacy services, i.e. with the facility to use the services of an advocate to represent them in matters arising in relation to their care and treatment. There was before the Chairman a policy document called 'Advocacy in Partnerships in Care' which in paragraph 1 said:
"INTRODUCTION
Partnership in Care recognises the benefits in providing independent advocacy services to its patients/residents."
- A Department of Health statement of minimal standards, published under Section 23(1) of the Care Standards Act 2000, which set out at Paragraph M23 minimum standards to be achieved by the operators of private health establishments in relation to advocacy, prescribed that all new patients should be given written details of organisations providing independent advocacy and that such details should be displayed in the establishment. Section 35 of the Mental Capacity Act 2005 will, when it comes into force, require, in cases such as that of The Spinney, that reasonable arrangements are made to enable "independent mental capacity advocates" to be available to represent and support persons to whom acts or decisions proposed under Sections 37, 38 and 39 relate.
- Mr Starr, who has appeared on behalf of PIC in this appeal, agreed with my encapsulation of the Tribunal's findings about PIC's policy that the Chairman took the view that PIC's policy was voluntarily to act as the 2005 Act, when it comes into force, will require of them. She found that PIC went further than the existing minimum requirement and provided an independent advocacy service on their premises. They achieved that provision at The Spinney by entering into a service level agreement with Rethink, the operating name of the National Schizophrenia Fellowship which is described in the service level agreement as the largest mental charity in the United Kingdom, pursuant to which Rethink would provide advocacy services to The Spinney.
- Paragraphs 2.1, 2.2, 2.3 and 2.4 of that document provided as follows:
"2.1 The Rethink Advocacy Service will provide free, impartial confidential advocacy to ensure that the views, wishes and concerns of individual patients in relation to their mental health needs are appropriately addressed, by focussing on the way patients needs are met within The Spinney, and also providing support in relation to meeting patients needs on discharge to their home community as appropriate.
2.2 The Advocacy Service will work with patients in enabling them to resolve matters of concern to them in supporting patients in clarifying how they wish to pursue a particular issue, providing full and impartial information on the options available, and where appropriate, act on patients on behalf in securing the outcomes
2.3 The service will aim to address patients' requests initially at an informal level. Where a resolution is unsatisfactory to the patient, the service will consult the patient regarding the option or more formal means.
It is anticipated that many issues will be resolved as a result of one contact with the Advocacy Service. This is where the request: is simply for information. Those with more complex issues to resolve will be offered ongoing advocacy support until an outcome is reached.
2.4 The Advocacy Officer will perform the following key tasks:
- Support patients in raising issues pertaining to their care and treatment at The Spinney.
- Support patients in reviews, ward rounds and care plan approach meetings.
- Support patients in Mental Health Review Tribunals and Managers Appeals
- Provide patients with relevant information.
- Support patients with complaints."
Paragraph 2.6 said, among other things, that the advocacy officer who would operate under the service level agreement would, by arrangement with the relevant ward staff, make regular visit to wards and units. The service was to be provided by and indeed was provided by an operating officer employed by Rethink who would work upon the provision of those services at The Spinney. The Chairman found at paragraphs 11 and 12 of her decision that the The Spinney were, under the agreement, to provide premises within the hospital where the independent advocacy service could take place and that Rethink had the power to withdraw services to the patients although the The Spinney would have to be involved; and that it would have to be in accordance with Rethink's policy and procedure and quality standards. The advocacy workers' key tasks were specified in the agreement and set out in paragraph 10 of the decision.
- Mr Laing began work as an advocacy officer at The Spinney on 22 February 2006. It is common ground that he was employed by Rethink and worked at The Spinney pursuant to the service level agreement to which I have referred. There was no evidence before the Tribunal as to whether he also worked anywhere else or, if there was any such evidence, it is not recorded in the decision and I have not been told about it; but I am confident that there was not any such evidence because of the limited nature of the evidence before the Tribunal, to which I will come in due course.
- The events which led to the present litigation need be described only briefly. The facts in so far as they are in issue - and they are substantially in issue - have not been determined. Mr Laing has presented two claims to the Tribunal. In the first claim, to which he made PIC and Rethink Respondents, he claims that he was the victim of race discrimination in that, on 7 April 2006, PIC made an allegation against him which they knew to be untrue and prohibited him from access to a ward at The Spinney and, further, that he was on 19 April suspended by Rethink following the making of a baseless allegation by PIC. In their response PIC denied, in paragraph 3 of their Grounds of Resistance, that Mr Laing was an employee of theirs or that he was a contract worker for them. They asserted, therefore, that the Tribunal had no jurisdiction to hear his complaint in so far as it related to them. They went on to deny discrimination. They said that there was an incident involving a patient and that patient's mail as a result of which it was decided that Mr Laing should refrain from entering the ward where that patient resided. They went on to say that they then informed Rethink of the nature and substance of an allegation that there was a further incident on 13 April which gave rise to concern because Mr Laing was alleged to have become involved in a clinical intervention between a patient and staff and this was reported to Rethink by PIC.
- On 24 July 2006 Mr Laing was dismissed by Rethink. On 2 August he presented a second claim to the Tribunal, claiming that his dismissal was a continuation of the course of discrimination on the part of PIC and Rethink and was victimisation.
- Since the hearing before the Chairman which has given rise to this appeal it has been ordered, sensibly if I may say so, that the two claims should be heard together; but at the time of the Chairman's hearing the response to the second claim had not yet been submitted and it was not before her nor, for that reason, is it before me. I understand, and it is undoubtedly likely to be the case, that the same point as to jurisdiction is taken in the second response; as in the first response but the Chairman's decision which has led to this appeal was made in relation to the issue as it arose in the first claim. It is, however, likely that the outcome of the determination of the preliminary issue which has led to this appeal, whenever that outcome is finally reached, will dictate or at least be very strongly persuasive of the outcome of that issue should it arise in the second claim. So far as the first claim is concerned a Chairman of the Tribunal directed that the jurisdiction issue should be decided as preliminary issue, and thus the Chairman came to decide that preliminary issue.
Preliminary Matters
- There are three preliminary matters which I have to mention. First, Rethink have in correspondence sought to have it clearly established that they are not a party to this appeal; that matter has been left by the Registrar for me to rule upon. The parties who have appeared before me that is to say PIC as Appellant through Mr Starr and Mr Laing who has appeared in person, agree that there is no reason for Rethink to be a party to the appeal; and, although the rules may appear to suggest that they must be, I think it right to dispense with any requirement upon them to serve an answer to the Notice of Appeal (if it was served on them which it may well not have been) and to say that they are not in any sense bound by the decision in this appeal and need not be regarded as a party to it. Secondly, there was a great deal of correspondence before this appeal came before me today about notes of evidence; but neither Mr Starr nor Mr Laing has raised that issue before me; and I need say no more about it. I have no notes of evidence, although I do have a copy of the witness statement of the only witness before the Tribunal, Mr Bennett who is the Regional Executive Director of PIC at The Spinney. Thirdly, Mr Laing sought to put before me seven documents which were not put before the Tribunal. Mr Starr was at first minded to resist Mr Laing's attempt to put those documents before me. It emerged from my questions to Mr Laing that most of those documents existed and he had them or had access to them before the Tribunal hearing; but after some discussion, with Mr Starr's consent, I indicated that I would look at the documents and see if there was anything in them which was, indeed, relevant to the appeal rather than spend a great deal of time resolving an argument as to whether the conditions on which new evidence could be put before an Appellate Tribunal were satisfied. Accordingly I did look at them; and I came to the conclusion that they did not help or hinder the case of either party and were not relevant to the issues in the appeal. It is fair to say that, without being so required by me, Mr Laing, when he came to his submissions, did not in fact refer to any of those documents; and I therefore say no more about them.
The Issue
- The Notice of Appeal correctly states that for a claimant to be able successfully to rely on Section 7 of the 1976 Act he must show that:
(a) he is not employed by the person in respect of whom he claims to be a contract worker, described in the Act as the principal
(b) he is employed by another person
(c) there is a contract between the principal and that other person
(d) the other person must supply the contract worker to the principal under that contract
(e) work must be available for doing by the contract worker and
(f) the work available for doing by the contract worker must be work for the principal.
- Mr Starr accepts that elements (a) to (e) were satisfied in this case. The issue was whether the last of those elements was satisfied. The Tribunal resolved that issue in favour of Mr Laing. I do not propose to go through the decision in detail. I have referred to some of the findings of fact already. At paragraph 15 the Chairman said:
"15 It was important to recognise that the role of the advocate was to be independent to advocate on behalf of the patent (sic)which involved challenging the first respondent as and when necessary."
And then she expressed her conclusions at paragraphs 20 – 24 as follows:
"Conclusions
20 I made my decision based on the evidence which I have received in terms of oral evidence and written evidence (which was unfortunately limited in this case as the claimant did not cross-examine the respondent's main witness and the respondent's main witness's evidence did not address all of the issues relevant to section 7). The question I have to determine is whether the claimant "did work for" the first respondent as no other mater is disputed by the first respondents. This is a broad question involving consideration, in my view, of all relevant factors.
21 The claimant here provided his services for the direct benefit of the patients of the first respondent. However, these were not his employer's patients but the first respondent's patients, therefore, indirectly there was a benefit to the respondents. In addition there was a commercial benefit to the respondents as they were likely to gain contracts themselves because they provided this service. Whilst the claimant was totally independent of the respondent and they could not influence his actual work I do not find this is determinative. They were not required to provide this service but chose to provide it because of now it reflected positively upon their own position. On balance, therefore, I find there was a benefit to the first respondent in providing this service.
22 In addition I find it is also necessary to consider the question of control and direction. In the Harrods case this was very high but it was not so high as to include direct managerial control of the work of the claimant. In Bassi there was some direction although to a much lesser extent that in Harrods. I find that in this case there was not a high level of direction apparent due to the nature of the role which was to be independent. However, there was a requirement for some direction and control in order for the first respondent to continue to operate its business and comply with regulatory frameworks. This was exemplified by the fact they could at least restrict the claimant's access to wards although the facts ultimately unilaterally withdraw access to the wards. I find it is inherently necessary that they would have this power. Against there being direction and control by the respondent is the fact that there was nothing in the contract between Rethink and the first respondents save that the code of Practice should be adhered to, which gives them any control over the claimant. However, having referred to what must be an inherent power to control access the ultimate consequence of which would be a possible dismissal where access was completely refused, I find that this was sufficient direction and control
23 This in addition to the benefit the first respondent received from the claimant's work is sufficient to establish that the claimant came within section 7.
24 I take this view as well in the light of exhortation not only in Harrods but in other cases to take a purposive approach to the legislation. Therefore on balance I find the claimant was a contract worker within the meaning of section 7 of the 1976 Act. The provision of his services whilst different in nature was as necessary as the provision of other services to the patient such as food and accommodation."
The Authorities
- In Harrods Ltd v Remick & Others [1997] three claimants relied on Section 7 of the 1976 Act. Two of them were employed by concessionaires who had a sales counter or something of that nature in Harrods. The third sought but did not obtain employment by a similar concessionaire. No-one could work at Harrods for a concessionaire without Harrods' approval. Those who had such approval had to comply with Harrods' dress code and were subject to other elements of control by Harrods. Under Harrods' contractual arrangement with the concessionaires the employees of the concessionaires would be selling goods which at the moment of sale belonged to Harrods and the receipts from such sales were paid over to Harrods who then accounted to the concessionaires, after deducting commission; but the employees were employed or were seeking employment by the concessionaires
- The Employment Appeal Tribunal, Mummery J presiding, at 1996 ICR 846 dismissed Harrods' appeal against the Tribunal's finding that the first two claimants were contract workers and allowed the third claimant's appeal against the Tribunal's findings that she was not. In the conclusion section of its judgment, the Employment Appeal Tribunal said at page 858E to 859D:
" (1) The evident purpose of section 7 of the Race Relations Act 1976 is to extend the scope of protection against race discrimination in employment beyond the case of discrimination on grounds of race by an employer against his own employee. The crucial question is whether that protection covers these cases.
(2) The class of persons protected by section 7 has to satisfy certain requirements. First, the persons must be employed "by another person." There is no dispute that that requirement is satisfied in these cases. It is common ground that Ms Remick was employed by Sheaffer Pens (U.K.) Ltd., Mrs Seeley by Brigade International Ltd, and Mrs Elmi by Moyses Stevens Ltd. None of them were employed Harrods Ltd.
(3) The second requirement is that that person who employs them "supplies then under a contract made with the principal." It is common ground that each of the employers of the applicants had made a contract with Harrods Ltd., i.e., the concession or franchise agreement. In that contractual relationship it was the employer, not Harrods Ltd., who engaged the individual employees. They engaged them as employees. The contract with Harrods Ltd. provided that the concessionaires would be responsible for, and be the employers of, the staff. They are, however, employed for work in the concession that was the subject of the contract with Harrods. The section does not require, contrary to Mr Goulding's submissions, that the workers are supplied to Harrods Ltd. All that is required is that there is a contract with a principal under which the other person supplies the workers. There was such a contract. Someone supplied the worker for the work available. It was not Harrods Ltd. The workers did not supply themselves. It could only be the employer of the worker.
(4) The critical question is whether the work, which was available for doing by those employees, was work "for" Harrods. If it was, then section 7 applies to that work and it would be unlawful for Harrods, in relation to work to which the section applies, to discriminate against such a worker in, for example, not allowing him to do the work or to continue to do it or by subjecting him to any other detriment.
(5) In our judgment, as a matter of interpretation, the expansion "any work for a person" goes wider than work done by an employee for an employer. The work may be for a person who is not the employer. That extends beyond work by an employee for an employer. That is implicit in the purpose and structure of the section. If the section extends beyond work by an employee for an employer, as it clearly does, it is a question of fact and degree in each case whether the particular work which is available for doing by the individuals is "work for a person." In the present cases, the industrial tribunals in the cases of Ms Remick and Mrs Seeley were entitled to find that the work in question was work "for" Harrods. It was work done in Harrods store for the benefit of Harrods and ultimately under Harrods' control, as Harrods may grant, refuse or withdraw store approval for the worker to do the work available. The fact that the applicants, as employees, also worked for their employer does not prevent the work which they did from being work "for" Harrods within the meaning of section7. It was work from which Harrods derived direct benefit without themselves having to employ a person to do the work available."
- It is important to note that the ratio of that decision, in numbered sub-paragraph 5 of the above citation, was that whether the work available is work for the principal is a matter of fact and degree; the appeals in that case of the first two claimants were allowed because the Tribunal were entitled, on the facts as found, to reach the conclusion that they had reached. The third claimant's appeal succeeded because Section 7 had not been considered by the Tribunal in that case. It is further necessary to refer to what the Employment Appeal Tribunal said as to the purpose of Section 7 in sub-paragraph 1 of the passage I have cited.
- The Employment Appeal Tribunal's decision was upheld by the Court of Appeal, reported at 1998 ICR 156. Sir Richard Scott with whom Waite LJ and Ward LJ agreed, said this at page 161H – 162C:
" The question, however, is whether, for section 7 purposes, the work available to be done by them is "work for [Harrods]." The appeal tribunal held that it was and I have no doubt that they were right. The work would, of course, also be work for the licensee, the employer. But it is implicit in section 7 that the work to which subsection (1) is referring will, not only be work done for the employer, in that it is work pursuant to the contracts of employment, but will also be work done for the principal. Under Harrods's contractual arrangements with its licensees the members of staff will be selling goods that at the moment of sale belong to Harrods. They will be receiving from customers the price for the goods. The gross sums they receive will be paid over to Harrods, leaving Harrods to account to the licensee after deducting the commission. All of this work of selling Harrods's goods and of receiving the purchase money for the goods is work required by Harrods, under its contractual arrangements with the licensees, to be done by staff employed by licensees. And the contractual arrangements entitle Harrods to impose rules and regulations governing the conduct of staff members in the course of carrying out the work. Against this background, the work done by the staff members can, in the ordinary use of language properly be described as work for Harrods."
He then rejected Harrods' argument that it was a pre-requisite of a finding that the alleged contract worker was working for the principal that he should be under the managerial power or control of the principal. He said at 162F to G:
"I am unable to accept these submissions for two reasons. First, they require a reading into section 7(1) of words that are not there. The statutory language, "any work for a person ('the principal') which is available for doing by individuals, "does not in terms limit the work to work in respect in respect for which the principal has managerial powers. Second, the proposed approach to construction would leave a person in the position of these complainants without a remedy in the event of discrimination against him or her by the principal."
- It is in my judgment important that, in the first of those two passages, at the last sentence, the Court of Appeal were (as Mr Starr accepted when I put this to him in argument) agreeing with the conclusion of the Employment Appeal Tribunal, namely that the issue of whether somebody is working for a principal is one of fact and degree. The Court of Appeal laid emphasis on the fact that the work done by staff members "can … properly be described as work for Harrods". Accordingly the Employment Appeal Tribunal's proposition, as endorsed by the Court of Appeal, that the issue is one of fact and degree has added to it the further principle that it is not necessary for the person claiming to be a contract worker to do the relevant work under the managerial power or control of the principal, albeit in that case the Claimants manifestly were to some extent under such control. The Court of Appeal, at page 163F, further said that a court should give to Section 7(1) a construction which is not only consistent with the actual words used but which also would achieve the statutory purpose of providing a remedy to victims of discrimination who would otherwise be without one. I should say, in passing, that Mr Starr has not suggested that Mr Laing would always have an effective remedy on the facts as he sets them out in this case in his claim forms were he not to be a contract worker.
- In C J O'Shea Construction v Bassi [1998] ICR 1131, Mr Bassi was employed to make deliveries of concrete to O'Shea. He claimed that he had been racially abused on O'Shea's site while delivering concrete by O'Shea's banksman. The contract worker issue again arose as a preliminary issue. The Employment Tribunal found that he was a contract worker of O'Shea; and the Employment Appeal Tribunal, presided over by Lindsay J, upheld their decision; at page 1137D the Employment Appeal said this:
"The matter is perhaps best left as the Appeal Tribunal left it at page 859 in the Harrods's case"
and they set out the quotation from sub paragraph 5 of the conclusion section of the EAT's judgment in Harrods which we have already set out.
They continued at paragraph 1137H:
"The contract between Pioneer and O'Shea (which, in the form of printed "standard conditions of sale" on Pioneer's behalf, was before the tribunal) included that deliveries should be made in accordance with the purchaser's O'Shea's, instructions. As a matter of fact and degree dependent on the surrounding circumstances in each case, the question was very much one for the tribunal which heard the evidence. We detect no error of law in its conclusion that Mr Bassi was engaged to work "for" O'Shea, notwithstanding that it was work for Pioneer, a fact which, of itself, by no means precluded its being "for" O'Shea."
- I refer next to two cases which were not before the Chairman, do not play any part in Mr Starr's skeleton argument and were found by Mr Laing, whose successful diligence is to be commended. I am told that Mr Laing has some legal qualifications and has academic qualifications of a high level; whether that is so or not, he found these cases; and I should refer to them. The first is Abbey Life Insurance Co Limited v Tansell [2000] IRLR 387. The facts there were that Mr Tansell offered computer skills and services through Intelligenta Ltd, a company in which he was the sole shareholder and one of four directors. He placed his name with several agencies, including an employment agency specialising in placing computer personnel with third parties. They entered into an agreement with Abbey Life to supply personnel to them; and Mr Tansell was providing services to Abbey Life pursuant to a contract which had the effect of putting him under the control of Abbey Life, that contract being between the agency and his own company. He was paid a salary by that company. There was no contract between Abbey Life and that company or Mr Tansell. His services were subsequently terminated when he was diagnosed as having diabetes; his claim was made under the Disability Discrimination Act. An Employment Tribunal held at a Preliminary Hearing that Mr Tansell was a contract worker. The Court of Appeal held that the Employment Appeal Tribunal had correctly decided the issue. The Court of Appeal in the judgment of Mummery LJ, with whom Ward LJ and Stuart-Smith LJ agreed, said at paragraph 35 that the language of Section 12; (the corresponding section in the Disability Discrimination Act) clearly covered the standard case in which a person makes office work available for doing by individuals employed by a temping agency and was equally capable of applying to the less common case such as Mr Tansell's case in which an extra contract was inserted so that the contractual chain had an extra element to it. No issue of principle which is relevant to this case was decided by the Court of Appeal in Tansell.
- In Jones v Friends Provident Life Office [2004] IRLR 783 Mrs Jones worked for her husband, as a secretary and personal assistant. He, under the trading name Winchester Investments, became an appointed representative for Friends Provident in Northern Ireland. Mrs Jones then became a company representative although she was an employee of her husband trading as Winchester Investments, to sell Friends Provident products. The Northern Ireland Court of Appeal held that the Employment Tribunal had not erred in finding that Mrs Jones' employer supplied her under a contract made with Friends Provident as a principal and that she was working for Friends Provident. The Court of Appeal emphasised, as it had done in earlier authorities, the purposive approach to the Section 7 of the 1976 Act which the court should adopt.
The Grounds of Appeal
- There are three grounds of appeal. They are:
(1) that the Tribunal erred in law by applying the wrong test in resolving the central question
(2) that the Tribunal, in resolving that question, reversed the burden of proof and in effect required PIC to prove that Mr Laing was not working for them
(3) the Tribunal's decision was perverse.
The Wrong Test
- Mr Starr puts this ground in two ways. First, he submits that the Tribunal erred in applying a test of control and direction and of benefit when they should have decided that there must be established an element of conducting the principal's business as well as an element of benefit to the principal from the work done by the supposed contract worker. He submits that Mr Laing, while working at The Spinney, did not report to, act for or work on the instructions of or with the staff at The Spinney; indeed his role was to act as an advocate for patients in relation to issues which could involve conflicts between patients and the staff at The Spinney. In truth the circumstances could only be regarded as demonstrating that Mr Laing was working on behalf of the patients and as part of Rethink's business to carry out their charitable work on behalf of patients at The Spinney who alone could benefit from it. He submits that if the Tribunal had asked as they should have done whether the work involved conducting Partnership in Care's business only one answer could possibly have been reached.
- There is, in my judgment, nothing in the judgment of the Employment Appeal Tribunal in Harrods or in Bassi or the judgment of Sir Richard Scott in the Court of Appeal in Harrods or in either of the subsequent cases which support this submission. The Court of Appeal rejected Harrods' argument that there must be an element of managerial power or control in the principal on the basis that Harrods' submission to that effect required reading into Section 1 which was not there; and the same reasoning applies, in my judgment, to Mr Starr's argument which is not the same as from but has elements in common with argument of Harrods which was rejected in the Court of Appeal. There is, as I see it, no warrant for erecting a further factual hurdle for the Claimant in the case of this type to have to leap over, when that hurdle is not to be found within the words of the statute and when erecting such a hurdle would be contrary to the purposive approach of which the authorities speak. The authorities, in my judgment, clearly set out that the approach which Mr Starr proposes is erroneous and that the correct approach is simply to apply the words of the statute and decide on the fact of each individual case whether the work the Claimant is doing or was doing is or was work for the principal.
- Mr Starr next submits that there was no element of direction and control such as to render Mr Laing a contract worker and that in so far as the Tribunal found that there was, at paragraph 22, namely in that Partnership in Care could restrict Mr Laing's access to a ward and ultimately withdraw access to the wards altogether, that was not an element of direction and control. It is submitted that PIC had to exercise a power to restrict the access of Mr Laing or anyone else to a ward of the hospital in order to protect patients, visitors and staff and to run their hospital in a highly regulated atmosphere with potentially dangerous patients effectively and appropriately and that the fact they had that power could not give rise to a sufficient or any recognisable level of control.
- The difficulty faced by this submission is the conclusion of the Court of Appeal in Harrods that it is not necessary for someone seeking to bring himself within Section 7 to establish that the principal has managerial power or control over him or his work. If the Chairman believed that direction or control was essential and her use of the word "sufficient" in the last sentence of paragraph 22 might so indicate, that that was an error of law on her part in PIC's favour and not one which they can now pray in aid by way of appeal.
- She was entitled to consider whether there was an element of control or direction as part of the factual material on the basis of which she had to make up her mind while it was not essential for Mr Laing to establish direction and control on PIC's part, it was relevant to the determination of the issue for the Chairman to consider whether there was any direction or control. Whether the Chairman should on the facts have found that there was some direction or control is a matter to which I will come in a moment when I come to deal with perversity; but I see no basis on which it could be said that in relation to direction and control, the Chairman applied a test adverse to the interests of PIC. In my judgment the Chairman adopted the correct approach, namely by looking at all the relevant factors and making a decision as a broad question of fact, as she indicated she was doing in the last sentence of paragraph 20.
Burden of Proof
- I am going to turn now to Mr Starr's argument as to the burden of proof. There is, of course, no doubt that the burden of proof on the balance of probabilities lay on Mr Laing. The hearing took an unusual course. Mr Laing declined the invitation to give any evidence. Mr Bennett, whose capacity I have described, was called to give evidence on behalf of PIC. There was a witness statement which was put before the Tribunal; and I think it is common ground that he was asked some further questions by the Tribunal and, quite possibly, by Mr Starr; but he was not cross-examined. Mr Laing had also not made any disclosure, although it is not suggested that he had been asked to or ordered to make any disclosure. Mr Starr's submission is that, in the absence of any evidence from Mr Laing, and any cross-examination of Mr Bennett by Mr Laing, what the Chairman did was to cast around looking at the evidence and such documentation as she had (most of which I described if not all of it) to see if she could find something which indicated that there might be evidence that Mr Laing was working for PIC and that, although she did not say so, by implication she must be taken to have reversed the burden of proof. Mr Starr points to the first part of paragraph 20 in which the Chairman said that she had made her decision based on the restricted evidence which I have described.
- I do not accept this submission. The Chairman had to make up her mind on the basis of the evidence before her. She could have decided that it was insufficient; but she decided in the other direction. There is nothing to show that she asked herself the question: 'Have Partnership in Care proved that Mr Laing did not work for them?' On the contrary she said, this in the penultimate sentence of paragraph 20:
"The question I have to determine is whether the claimant "did work for" the first respondent as no other matter is disputed by the first respondents."
There she was, in my judgment, plainly directing herself to answer the question whether it had been shown that the Claimant worked for PIC. The burden of proof was not reversed. While I entirely accept Mr Starr's point that PIC could have called no evidence, and if they had done perhaps, with hindsight, it might now be thought that Mr Laing's case might have been more difficult; but the fact is that there was Mr Bennett's evidence; there was the documentation; and in my judgment it was open to the Chairman to act on the evidence which she received.
Perversity
- I have already indicated that, on the authorities, the determination of the question central to the preliminary issue which the Chairman had to decide is a matter of fact and degree. Mr Starr accepts that, in order to succeed on his perversity ground, he has to jump over a high hurdle. In Yeboah v Crofton [2002] IRLR 634 (CA) the Court of Appeal held that, if a perversity argument is to succeed, perversity must be overwhelmingly demonstrated. As Mr Laing pointed out, cases which give rise to the issue as to whether a claimant is a contract worker may and indeed are likely to involve very different facts, as an examination of the authorities to which I have referred demonstrates (although it might be though that Jones and Tansell are perhaps relatively similar). Some cases will be at one end of the factual spectrum; others will be at the other end of the factual spectrum. Harrods could well be said to have been a very strong and perhaps overwhelming case in favour of the Claimants. The merits of Mr Laing's position in this case were manifestly less strong. But each case is to be decided on its own facts.
- Mr Starr submits that the Chairman was not entitled to conclude as she did in paragraph 21 that the work of M Laing was of benefit to PIC; it was only of benefit to the patients; and such benefit as that which the Chairman identified in paragraph 21 i.e. that Mr Laing's work was of commercial benefit to PIC because they were likely, in effect to improve their business because they provided the advocacy service was so indirect as not properly to be capable of being regarded as a benefit sufficient to justify the Chairman's decision.
- The Chairman was, in my judgment, entitled to consider the context. She had earlier set out that, as a matter of policy and in the interest of their patients and therefore in the interest of their business which was that of caring for their patients, PIC operated their business by making provision for advocacy services to be made available to the patients. It was, as I see it, open to the Chairman to conclude that a person whose work provided those services to PIC's patients was working for the benefit of PIC, even though in actually carrying out the work Mr Laing was, as the Chairman found, totally independent. I do not agree that no reasonable Tribunal could regard the facts as demonstrating a benefit to PIC's business from the work which Mr Laing carried out for their patients at The Spinney.
- As to control I have already indicated that, while not a necessary element, it is a potential element which may be considered by a Tribunal in looking at all the relevant factual material. The Tribunal found, as I have already said, that there was a measure of direction and control in the way in which it was open to Partnership in Care to restrict access to the wards and potentially to the premises. Mr Starr submits as he did in relation to the arguments about the right test, that PIC had to be able to withdraw access to a ward and to the hospital altogether to anyone if they felt it necessary for the reasons which I have earlier set out; but in this case it was, in my judgment, open to the Chairman to regard the potential exercise of that power of control, which must have extended to a case in which they exercised it not because of matters of safety but because there had been some kind of a complaint whether Mr Laing's conduct by a patient, as being a factor in favour of Mr Laing's working for PIC. The degree of control may not have been very great;but it was a factor for the Tribunal to assess; and the weight which the Tribunal gave to it was a matter for the Tribunal.
- My conclusion on the perversity arguments is that the Chairman reached a decision which was open to her and which was not one which has been demonstrated as one which a reasonable Tribunal could not reach or one which passes the 'my goodness me that must be wrong' test, the Chairman came to a decision which was not perverse.
Conclusion
- For the reasons I have set out this Appeal is dismissed.
