Appeal No. EATS/0073/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 26 March 2004

 
Before
THE HONOURABLE LORD JOHNSTON
MR A G McQUAKER
MISS A MARTIN

 

(1) MRS FIONA ANNE McDOUGALL
(2) MRS PAULINE CLARK	APPELLANTS

 

GLASGOW CITY COUNCIL	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellants	Mr A McGrade, Solicitor
Of-
Messrs McGrade & Co
Solicitors
Sovereign Centre
5 St Vincent Place
GLASGOW   G1 2DH

 
For the Respondents

 

 

 	 
Mr I D Truscott, Queen’s Counsel
Instructed by-
Glasgow City Council 
Legal Services
City Chambers
George Square
GLASGOW   G2 1DU

 	 	 	

LORD JOHNSTON:
 
1.	This is an appeal by two appellants in respect of a finding by the Employment Tribunal sitting in Glasgow, that during the time they worked as gymnastic coaches for Glasgow City Council, they were neither employees nor workers.
 
2.	Historically, the first appellant put in a number of applications to the Tribunal between March 2000 and July 2002.  These applications made a number of demands but related to a substantial period in terms of what was said to be the period of employment.
 
3.	In the case of the second appellant, she put in only one application on 30 September 2001, claiming merely, “pay and payment”.  However, again, it was over a substantial period of time, stated to be from 1989 to the present.  This is of importance in one aspect of this case.  However, unless this Tribunal can be satisfied that the Employment Tribunal erred in respect of its classification of both persons as not being either employees or workers, none of these claims can get off the ground.
 
4.	The appellants are gymnasts and taught, effectively, as we understand it, PE.  They worked, apparently, in blocks of some number of weeks, some of which were joined together and some of which were separated.  
 
5.	In May 1998 the Council required the appellants inter alia to sign a document headed “Consultancy Agreement - Leisure Activities Coaching”.  The first appellant signed it, although she was reluctant to do so, regarding herself up to that point as an employee of the Council.  Apparently the second appellant ignored it.
 
6.	With regard to the first appellant, accordingly, an issue arises as to the status of this document and its effect on the case.
 
7.	It is clear from its terms that it is stating the status of the signatory to be a self-employed consultant.  The specific declaration being as follows:-
 
“an independent contractor who has certain skills and abilities which may be useful to the department from time to time.”  It also provided that “the consultant was to hold adequate public liability insurance to cover all risks and exhibit said insurance to the department for approval, within 14 days of the signing of the agreement …”
 
8.	There is no doubt that the first appellant signed this agreement with great reluctance, it not being her intention or wish to become a consultant.  However, she makes no attempt, even at this stage, to suggest that she signed it under duress or that some issue of facility and circumvention arises so as to render the document void, or at least, voidable.  It therefore must follow that the document, from the date of signature, regulates the arrangement between the first appellant and the Council and that is plainly one of consultant.  This is the conclusion that the Tribunal reached on this aspect of the case and we will endorse it.  This does not, however, apply to the second appellant.
 
9.	Both appellants then proceeded to a ground of appeal which suggested that the Tribunal had erred in holding that there was no mutuality of obligation with regard to the arrangements between both appellants and the Council, but this ground of appeal was withdrawn by Mr McGrade, which has the result of endorsing again the decision the Employment Tribunal, both in that respect, and on the subsidiary question of whether they should also be regarded as workers within the definition of the Working Time Directive, placing reliance on the case of Byrne Brothers (Formwork) Ltd v Baird [2002] IRLR 96.  Those issues accordingly disappear.
 
10.	What is left is what is raised by a supplementary ground of appeal lodged by Mr McGrade shortly before the hearing before us and which we allowed in under reservation. 
 
11.	It is in the following terms;-
 
“The tribunal also failed to consider whether there was a specific contract giving rise to a contract of employment.”
 
12.	Mr McGrade developed this argument against the background of McMeechan v Secretary of State for Employment [1997] IRLR 353 and Clark v Oxfordshire Health Authority [1998] IRLR 125 to reflect that, whatever might be the overall position, contracts of employment proper could be spelled out for specific periods concentrating on the so-called 10 week blocks.  This was something, he submitted, the Tribunal should have considered and he invited us to remit it back again to them for such consideration.
 
13.	We do not take this matter any further because we agree with Mr Truscott that, whatever may be the general law in this respect, the circumstances of this case militate against it being fair and appropriate at this stage of the process to allow this to be investigated.  As we indicated at the beginning of this decision, both applicants applied in their applications for claims extending over a continuous period of employment over a number of years and it was against that background that the Tribunal was invited to consider their employment status.  It would, in our opinion, be entirely inappropriate at this stage to embark upon a wholly separate exercise of trying to determine whether or not within those periods there were certain periods where the contract of service rather than for services could be spelled out.  We also, as Mr Truscott emphasised to us, have considerable doubts as to the practical applications of such an exercise.
 
14.	We will therefore determine this matter entirely on the basis that, procedurally, it comes too late, and should not be further investigated either by us or by the lower tribunal.  This ground of appeal will therefore be refused.
 
15.	In these circumstances these appeals are dismissed.