Carmichael and Another v National Power Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,LORD JUSTICE WARD,LORD JUSTICE CHADWICK,Lord Justice Ward |
| Judgment Date | 18 November 1999 |
| Judgment citation (vLex) | [1998] EWCA Civ J0327-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | EATRF 97/0156 CMS3 |
| Date | 18 November 1999 |
[1998] EWCA Civ J0327-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Kennedy
Lord Justice Ward
Lord Justice Chadwick
EATRF 97/0156 CMS3
MR B LANGSTAFF QC with MISS T GILL (Instructed by Messrs Andrew Freer, GMB Trade Union) appeared on behalf of the Appellants
MR E TABACHNIK QC with MR S WILKEN (Instructed by Peter Smith, National Power Legal Division) appeared on behalf of the Respondents
Friday, 27 March 1998
1. General
This is an appeal by Mrs Carmichael and Mrs Leese from an order of the EAT made on 24th May 1996 which dismissed their appeal from a decision of the Industrial Tribunal sitting at Newcastle upon Tyne which was entered on the register on 11th September 1995. I regret to say that I find myself unable to agree with my Lords that this appeal should be allowed, and so I must endeavour to explain why I reach a different conclusion.
2. Outline and Issue.
From 1989 until relatively recently Mrs Carmichael and Mrs Leese worked as guides at Blyth Power Stations in Northumberland. It was not full time work. They were offered work, and normally they accepted it, as and when there was work for them to do, and they were paid according to the number of hours they worked.
On 16th March 1995 they complained to the Industrial Tribunal that National Power had failed to comply with section 1(1) of the Employment Protection (Consolidation) Act 1978, as amended, which required an employer, not later than two months after the beginning of an employee's employment with the employer, to give to the employee a written statement containing the particulars which are set out in section 1(2) and (3). It is common ground that no such statement was provided, and section 11 of the Act provides that where a statement is not given an employee can seek the assistance of an Industrial Tribunal. Each applicant gave details of her complaint in the same terms, saying :—
"I have been employed since 9th March 1989 and I regularly work in excess of twenty five hours per week. The Respondent pays my tax and insurance contribution. I am provided with a uniform and I have full use of company vehicles for business use. I work for no other employer and I am not entitled to send along a substitute to perform my duties. I therefore claim that I am entitled to a contract of employment."
On 19th April 1995 National Power served Notice of Appearance in relation to each application, setting out in 15 paragraphs why on the facts they contended that the appellants were not, and never had been, employees of National Power (or of its predecessor at Blyth Power Stations). It is common ground that if National Power is right in that contention the Industrial Tribunal had no jurisdiction to make any order pursuant to section 11, and the tribunal was therefore obliged to dismiss the applications. When the matter came before the tribunal the unanimous decision was that the Tribunal had no jurisdiction. The appellants exercised their right to appeal to the Employment Appeal Tribunal on a point of law. As I have already indicated that appeal failed, so they now appeal, with leave, on a point of law to this court. There is no right of appeal in relation to the Industrial Tribunal's determination of issues of fact, and as we are a second-tier appellate court our primary concern with the correctness of the Industrial Tribunal's decision, not the decision of the EAT (see Hennesey v Craigmyle & Co Ltd (1986) ICR 461.)
3. Notice of Appeal and Respondent's Notice.
The amended Notice of Appeal seeks an order that the Industrial Tribunal had jurisdiction, alternatively that the issue of jurisdiction be remitted to the Industrial Tribunal, and it is said in summary that the Industrial Tribunal erred in law by :—
1) failing properly to construe the meaning and effect of the documents which came into existence when the appellants began to work as guides, and —
2) misdirecting itself as to the pre-requisites for the existence of a contract of service.
The Respondents seek to uphold the findings of the Industrial Tribunal, and contend that in reality the appellants are seeking to challenge findings of fact with which we in this court are not entitled to interfere.
I must therefore look with some care at the material which was before the Industrial Tribunal, and at the findings of that tribunal before I turn to consider the relevant law, and the submissions made to us.
4. Facts
On 15th November 1988 the CEGB (which then operated Blyth "A" and "B" Power Stations) invited applications "for the posts of Station Guides". The written invitation indicated that "successful candidates will be required to supervise parties of visitors" etc. It indicated what skills applicants should have, and continued :—
"Visits are normally of two hours duration and can be morning, afternoon or evening. Full training will be given to successful applicants. Employment will be on a casual as required basis and payment will be at the rate of 376.56 pence per hour, being the minimum of Band one of the NJIC Agreement."
The document ended by indicating where application forms could be obtained.
Both appellants obtained and completed application forms, copies of which were before the Industrial Tribunal and are before us. They appear to be all-purpose application forms, probably provided by the CEGB to applicants for a wide variety of positions.
It seems that both applicants were then interviewed, after which on 1st March 1989 the Power Station manager wrote to each applicant in identical terms saying :—
"I am pleased to note that you are agreeable to be employed by the CEGB at Blyth "A" and "B" Power Stations on a casual as required basis as a Station Guide.
When your services are required you will be paid at the rate of 376.56 pence per hour, being the minimum of Band One of the NJIC Agreement. Your salary will be paid by credit transfer.
Please find enclosed a pre-typed reply letter which should be returned to me confirming your acceptance of this offer together with the completed Method of Payment Form.
As mentioned at the interview it will be necessary for you to receive some formal training; accordingly I would like you to attend site on Thursday 9th March 1989 at 1300 hours. Please report to Mr J. Lovatt Training Officer."
The pre-typed reply letter read :—
"Station Guide—Casual Employment
I am pleased to accept your offer of employment as a Station Guide on a casual as required basis."
Each applicant signed the reply letter and returned it. They were then trained, as had been envisaged, and worked as guides when invited to do so. In due course National Power took over from CEGB the operation of the power stations, and in late 1994 or early 1995 the number of guides was increased to four.
Before the Industrial Tribunal the applicants were represented by Mr McCabe, a full time Trade Union Official, and National Power were represented by Mr Wilken, who has appeared as junior counsel in this court. Both appellants gave evidence, and the witnesses for National Power were Mr Charlton, Head of Production Services, and Mr Lovatt, the Power Station Safety and Training Officer. There is before us a copy of the Chairman of the Industrial Tribunal's notes of Mr Lovatt's evidence, prepared in accordance with an instruction given by the President of the EAT, but it is to paragraph 5 of the decision of the Tribunal itself that I must now turn in order to continue with this review of the facts.
It is clear from paragraph 5(d) that when the Tribunal gave its decision the appellants were still acting as guides, having worked as many as 25 hours per week. Their remuneration had been paid after deduction of tax and National Insurance contributions, both being deducted at an employed persons rate. They had been provided with uniform by National Power "for them to be seen in the image required". On occasions they had given talks at schools which had required the use of company vehicles. At the end of paragraph 5(d) the Tribunal state that neither appellant has a written contract.
In paragraph 5(e) the Industrial Tribunal cite from the CEGB document of 15th November 1988, and continue : "It is to be noted as agreed fact that no work means no pay". In paragraph 5(g) the Tribunal state that :
"The very clear position of the respondents is that if the applicants did not wish work as a Guide then they could not make them work. And likewise the converse is that if there were no tours for them to do and they turned up at the Power Station then work would not be provided to them as a duty, it might be provided for them if it was convenient to the respondents for a particular purpose but on no other basis than that."
In paragraph 5(h) the Tribunal state that it is plain that if each applicant "did not give enough availability" to National Power then National Power would have recruited more reliable and dependable guides to meet their needs, but if a tour was cancelled and no other work was available "then there was simply nothing for them to do. There was no obligation on the respondent to provide work for them.. No mutuality of obligation, we find, existed". Those last two sentences contain findings which are at the heart of this appeal. Mr Langstaff Q.C., for the appellants, contends that if the Industrial Tribunal had given proper weight to the unchallenged documentary evidence relating to the way in which the relationship between the appellants and the CEGB...
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