Appeal No.	 EAT/0606/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 May 2001

Before
SIR CHRISTOPHER BELLAMY QC
MR D J HODGKINS CB
MS B SWITZER

MR P CAPODICI	APPELLANT

THAMES AND CHILTERN TRUST LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR P CAPODICI
(The Appellant in Person)	

SIR CHRISTOPHER BELLAMY QC

1	This is an Ex Parte Preliminary Hearing of an appeal brought by Mr Capodici against the decision of the Employment Tribunal sitting at London South the extended reasons for which were sent to the parties on 22 March 2000.  On this Preliminary Hearing our task is to identify whether there is any reasonably arguable point of law that arises on the decision.  It is only if there is such a reasonably arguable point of law that this Tribunal has jurisdiction to entertain the appeal.

2	Mr Capodici’s original complaint against the Respondent, Thames and Chiltern Trust Ltd, was for unfair and/or wrongful dismissal as presented in his IT1 of 27 October 1999.  It appeared that on any view Mr Capodici did not have the qualifying period of one year to bring a claim of unfair dismissal, so that part of his complaint was struck out in the Tribunal’s decision.  

3	There then, however, remained the complaint of wrongful dismissal.  That complaint turned in effect on the question whether Mr Capodici worked for the Respondent under a contract of services (not an employee) or a contract of service (an employee).  The Tribunal heard the matter on 10 March 2000.  They heard evidence from Mr Capodici.  They heard evidence from the witnesses for the Respondents and they considered various other matters, in particular, a document headed ‘CONTRACT FOR SERVICES BANK LIST STATEMENT OF TERMS’ produced by Mr Capodici.  A certain amount of confusion has arisen as to exactly which document that was.  We have a document in our bundle at page 3(f) which is headed ‘ CONTRACT FOR SERVICES BANK LIST STATEMENT OF TERMS’ issued in June 1999 which states that Mr Capodici will be paid at a remuneration of £5.75 per hour.  There is another document in the Tribunal’s bundle at page 20 which has the same heading and was apparently also issued in June 1999 which refers to a remuneration of £5.31 per hour.  It also has a provision in it about holidays and the wording under the heading ‘REMOVAL FROM THE LIST’ is somewhat shorter than the wording that appears in the other document at page 3(f).  Mr Capodici has however told us, and we entirely accept from him, that the relevant document is the document at page 3(f), because he was at all material times paid at the rate of £5.75 per hour.  It does appear from the Tribunal’s decision, particularly at paragraph 2 and paragraph 19, that that was in fact the document which the Tribunal was working off as well.  So for all practical purposes we are satisfied that we are looking at the correct document and the Tribunal itself was looking at the correct document albeit that, apparently, the Respondents had produced a document that was not correct.  The Tribunal having considered all the factors in its decision came to the view that Mr Capodici was not an employee.  They therefore dismissed his complaint for wrongful dismissal.

4	Mr Capodici then lodged an appeal with this Tribunal in a Notice of Appeal dated 2 May 2000 together with certain further particulars of that appeal which were received on 3 July 2000.  In that first appeal document the point that is raised is that Mr Capodici did not receive the necessary minimum period of notice, that is the principal point that is raised.  Whether there was of course any minimum period of notice applicable in this case depends in turn on the preliminary question of whether Mr Capodici was an employee and therefore entitled to take advantage of the provisions of the Employment Rights Act 1996.  

5	The matter then came before this Tribunal, the Employment Appeal Tribunal, for a Preliminary Hearing on 17 November 2000 before His Honour Judge Levy QC and colleagues.  On that occasion the Employment Appeal Tribunal noticed the difference between the two documents to which I have referred.  They pointed out to Mr Capodici that his appeal could not succeed unless and until the Judgment as to the Appellant being an employee had been overturned.  What they did was to recommend to him that he should seek legal advice and that the preliminary appeal should be adjourned to come on for a further hearing later in the year.  They made an order that Mr Capodici should prepare an amended Notice of Appeal challenging the finding that he was not an employee and showing proper legal grounds within 28 days of the order which was made on 17 November 2000.  They further ordered that any evidence the Appellant wished to rely on at the new hearing should be put in by way of affidavit.  

6	Mr Capodici then sent in a further document which is dated 10 December 2000 which refers to the omission from the bundle before the Tribunal of certain letters and raises the question of holiday pay and also refers once again to the question of the relevant period of notice which, according to Mr Capodici, should be one month.  That document does not really address the issue to which attention had been drawn in the Tribunal’s order of 17 November, which was to require the Appellant to prepare an amended notice challenging the finding of whether or not he was an employee and inviting him to put forward any further evidence that he wished to submit on that point.  

7	So, where we are now is more or less where these proceedings started which is to determine whether or not this decision of the Employment Tribunal contains an error of law on the question whether or not Mr Capodici was an employee or was working for the Respondent under a contract for services.  On that particular point today Mr Capodici has drawn attention to various findings by the Tribunal that he queries in the decision, notably, at paragraph 34, concerning his availability for shift work and similar matters.  He also points out, as the Tribunal itself does, that there is always a concern that particular arrangements may have been entered into in order to circumvent the provisions of the various statutes protecting the rights of an employee.

8	Our difficulty on this appeal is that we can only consider points of law.  We cannot go into points of fact, unless we can be satisfied on a proper basis that the conclusions on the facts are conclusions that no properly directed Tribunal could reasonably have come to.  We have very carefully considered the Tribunal’s decision and we have a great deal of sympathy for Mr Capodici in this case and can well understand his feelings; however, we are limited to the question of whether we can identify any error of law in this decision by the Employment Tribunal.  Unfortunately for the Appellant, having considered the matter very fully, we are unable to identify any reasonably arguable error of law in the very full analysis given by this Tribunal on the question of whether or not Mr Capodici was an employee.  Having failed to identify any such error we are left with no alternative but to dismiss this appeal.