Appeal No.	 EAT/359/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 January 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR T C THOMAS CBE
MR D A C LAMBERT

MR P COLLETT	APPELLANT

R MILLER & N MILLER LIMITED	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	The Appellant in person	
For the Respondents	The Respondent neither present nor represented	

	HIS HONOUR JUDGE CLARK:	This appeal raises the question of whether or not the Appellant, Mr Collett, was an employee of the Respondent, R. Miller & N. Miller Limited within the meaning of Section 130 of the Employment Rights Act 1996.  There is the added complication that different Employment Tribunals at Stratford have reached different conclusions in cases involving the same alleged employer and different workers.

	We remind ourselves than on appeal the question as to whether or not the Applicant was employed by the Respondent under a contract of employment, in the absence of a written contract as in this case, is essentially one of fact and degree for the Employment Tribunal.  Absent a self- misdirection in law or perversity on the face of a decision at the Employment Tribunal level, it will not be open to this Appeal Tribunal to interfere with the Employment Tribunal’s conclusion O’Kelly v Trusthouse Forte 1983 ICR 728.  However to that must be added the well known principle to be found in Meek v City of Birmingham District Council 1987 IRLR 250 that there is a duty on an Employment Tribunal to explain its reasoning in reaching its conclusion in any given case.  We shall return to that point later.  

	Secondly, it cannot be assumed that where two or more Employment Tribunals have reached different conclusions on the same or similar facts, one or other has necessarily made an error of law Kent County Council v Gilham (1985) ICR 233.

	In the present case the evidence before the Employment Tribunal showed that Mr Collett, began work for the Respondent as a labourer in June 1990.  His evidence was that he worked every day that was available.  If there was no work he told the Tribunal that he signed on and received benefit.  That was what happened during the three week break over the Christmas period.  Twice he was laid off. In 1991 he had no work for 2 months.  He received no sick pay or holiday pay.  He was remunerated at  £50 per day.  He was paid by cheque, he tells us weekly, and there was a 24% deduction for tax.  He chose to be treated for Revenue purposes as self-employed.  Between 6 May and 7 August 1995,  he was off sick and received no payment from the Respondent but claimed state incapacity benefit.   No work was provided by the Respondent after 27 March 1997 and we understand that it has now ceased trading.  In these circumstances, the Applicant claimed a redundancy payment.

	The matter came before the Employment Tribunal sitting at Stratford under the Chairmanship of Mrs E. Prevezer on 14 November 1997.  That Tribunal held that he was not an employee and hence not entitled to a redundancy payment in a decision with extended reasons dated 8 January 1998.

	The Tribunal went on to find that had he been an employee, his continuity of employment had been broken by his absence from work between 6 May and 7 August 1995, so that he had not completed two year’s service upon termination on 27 March 1997.

	Our attention has been drawn to a decision of a Chairman, Ms Beverly Lang, sitting alone at Stratford on 19 December 1997, in the case of Mr Parish, a bricklayer with the Respondent.  On the facts found in that case Ms Lang concluded that Mr Parish was an employee.  A similar conclusion was reached by a different Chairman in the case of Moran v Miller.  We have seen that Chairman’s reasoning in a decision dated 12 November 1997 in that case.

	At a preliminary hearing before a division of this Tribunal, presided over by Judge Levy QC, this appeal was allowed to proceed to a full hearing.  It appeared to the Tribunal on that occasion that the appeal was arguable on the ground of perversity in the light of the decisions reached in the cases of Parish and Moran.  We assume that the Tribunal’s attention was not drawn to the Court of Appeal decision in Gilham on that occasion and that has been confirmed by Mr Thomas who sits on this Tribunal.  On that occasion the Appellant was represented by Mr Snelson under the ELAAS pro bono scheme.

	Leave was granted to the Appellant to file Amended grounds of appeal and we have considered those grounds and the submissions of Mr Collett before us today.  The first ground of appeal in the Amended Notice raises the issue as to the extent of the Tribunal’s reasoning in their decision.  It is submitted that the question of whether or not the parties entered into mutual obligations, the degree of control which the Respondent exercised over the Appellant in the performance of his duties, the overall question as to whether he could properly be regarded as in business on his own account and whether he was obliged personally to perform the work entrusted to him or was free to engage others for that purpose, and whether or not he stood the risk of profit and loss were not addressed by the Employment Tribunal.

	Having considered the reasoning, we see the force of that submission.  Having set out the facts and referred to Section 230 of the Act, the Tribunal simply say this:

“Having reviewed the facts relating to this case, we find that the Applicant was not working under a contract of employment at the time that the work ceased on 28 March 1997 but was a sub-contractor.  We return to the principal in Meek.  It seems to us that the Tribunal’s reasoning in this case is defective.  We are quite unable to discern from the reasons the Tribunal’s process of reasoning leading to the conclusion that the Appellant was not an employee.  On that ground and that ground alone, we shall allow this appeal and remit the matter to a fresh Employment Tribunal for rehearing on the issue of whether or not he was an employee.

	The next point relates to the Tribunal’s finding that there was a break in continuity.  That matter will also be remitted for consideration by the fresh Employment Tribunal.  It seems to us that continuity may have been preserved by the provisions of Section 212(3)(a) of the Act in that the Appellant was during the relevant period, incapable of work in consequence of sickness and injury.  The period being one of less than 26 weeks (see Section 213(4)).  We express no concluded view on that point.  It will again be a matter for the fresh Employment Tribunal to consider.

	Accordingly, the appeal is allowed and the case remitted for rehearing.