Appeal No. EAT/1328/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 March 2001

Before
MR RECORDER LANGSTAFF QC
MR D A C LAMBERT
MR J C SHRIGLEY

ADJUSTMATIC BEDS LIMITED	APPELLANT

MR HUGH McALLISTER FULTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR ANDREW BURNS
(Of Counsel)
Messrs Fox Williams
Solicitors
City Gate House
39-45 Finsbury Square
London
EC2A 1UV	

MR RECORDER LANGSTAFF QC

1.	In giving permission for this case to go forward to a hearing at which the Respondent may be represented we are not making any decision nor expressing any confidence that the view which the Employment Tribunal carefully came at Sheffield which they set out in their decision of 13 September 2000 will be overruled. 

2.	However, we think it arguable and we say no more than that that upon a proper construction of the written contract which is the single important document in the case that Mr Fulton may have been an agent and not an employee.  In particular, we think there may be some force in three points, which had been made with courtesy and skill by Mr Burns.  First, that there is a difference between an employee and an agent in that an employee one would normally expect to have some minimum income guarantee.  Secondly, it appears on reading the contract that the expenses of recruiting and training agents, that is in phone calls and travelling expenses, were for the employee or agent alone to bear without reimbursement from his principal.  And thirdly, if and to the extent that there may be any uncertainty as to the terms of the agreement, the parties themselves had chosen to place a label upon it.  This might, if the full Tribunal takes the view that there is ambiguity or balance in the other factors which tend towards on the one hand employment and the other agency, make the difference.

3.	We think the matter will take no more than one half day to hear.  Skeleton arguments, fourteen days beforehand.  Copies of any authorities to be relied upon seven days beforehand.  Category B for listing purposes.  There is one further direction, which we must give in this case.  Mr Fulton, we are told, was on 12 March told by the Employment Tribunal that his claim for unfair dismissal had been rejected.  He has not yet submitted an Appeal.  If he does not submit an Appeal then this case has academic importance only as it is accepted it should not proceed further and will be withdrawn by the Appellant.  If however, he appeals then depending on the substance of that Appeal it may be sensible that this case and that Appeal be heard together on the grounds of economy and convenience and if that is to happen then the timing which we have given may need to be revisited.