Express & Echo Publications Ltd v Tanton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE AULD,LORD JUSTICE HIRST |
| Judgment Date | 11 March 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0311-10 |
| Docket Number | EATRF 98/0528/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 March 1999 |
[1999] EWCA Civ J0311-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Hirst
Lord Justice Peter Gibson
Lord Justice Auld
EATRF 98/0528/3
MR. J. SWIFT (instructed by Messrs Foot & Bowden, Plymouth, Devon) appeared on behalf of the Appellant/Respondent.
THE RESPONDENT appeared in Person.
Once again this court is asked to look at the question whether a person engaged to work for another in return for payment is an employee under a contract of service or a self-employed contractor under a contract for services.
That question arises in this way. The appellant, Express & Echo Publications Limited, had employed the respondent, Ernest Tanton, for a period until he was dismissed by reason of redundancy in 1995. But on 14th August 1995 he was re-engaged to work for the appellant under a new agreement, whereby the appellant intended, and Mr. Tanton agreed, that Mr. Tanton should not be an employee. Mr. Tanton later changed his views on his relationship with the appellant, and on 7th July 1997 he applied to the Industrial Tribunal complaining of what he described as breach of contract, written statement of employment particulars. By that he meant, as appears from the details which he gave in his IT1, that he was asking for his status as an employee to be confirmed and he was also asking, as was his right if he were an employee, for a written contract of employment containing the terms of his employment.
The appellant, by its notice of appearance, opposed Mr. Tanton's application. It did so on the ground that he was an independent contractor engaged by it. That dispute gave rise to a preliminary issue as to whether Mr. Tanton was an employee or a self-employed contractor. If the latter, then his application would have to be dismissed.
That issue came before the Industrial Tribunal chairman sitting alone on 9th September 1997. In his decision, which was sent to the parties on 16th September 1997, the chairman said that, in a case of this nature, it is necessary to look at the overall position, and that, whilst it is useful to consider a number of different factors which may be pointers, it is not necessarily the case that any one factor can tip the balance either way. He made a number of findings of fact, including the following:
(1) When Mr. Tanton was engaged by the appellant in August 1995, it was the intention of the appellant, and Mr. Tanton having little alternative agreed, that he would be a self-employed driver. Both parties regarded the relationship as a relationship of contractor and client rather than employer and employee, though, as I have said, Mr. Tanton later changed his view of that.
(2) From the outset the Inland Revenue took the view, and would countenance no view other than, that Mr. Tanton was an employee, and so Mr. Tanton received payments from the appellant under deduction of tax and national insurance contributions as if he was an employee.
(3) It was not until January 1996 that Mr. Tanton was sent a copy of what the appellant maintained was his contract. That was a document called "An Agreement for Services", the required transport and delivery services which Mr. Tanton was to provide being specified in the schedule to the agreement. That form of contract was clearly designed to take Mr. Tanton outside the ambit of a contract of employment and to make him a self-employed contractor.
(4) Mr. Tanton refused to sign the agreement which he found unacceptable.
(5) Mr. Tanton's duties as a driver were to pick up newspapers and deliver them at various points in Devon on a fixed run in a particular order dictated by the appellant.
(6) The vehicle which he was to drive was provided by the appellant.
(7) Mr. Tanton was to wear the uniform of the appellant and that uniform was provided by it.
(8) His remuneration was a fixed fee per journey calculated by the appellant and not negotiated. That sum took into account the appellant's estimate of the time required and its views of the appropriate rate per hour.
(9) That amount was fixed no matter how long Mr. Tanton in fact took, and Mr. Tanton could not increase his earnings by doing more work.
(10) Mr. Tanton received no sick pay or holiday pay.
(11) Only two provisions of the Agreement for Services were mentioned by the chairman as not having been observed. They were an obligation in paragraph 15 of the schedule to maintain the vehicle and an obligation in paragraph 17 of the schedule for Mr. Tanton to clean the vehicle on a weekly basis.
(12) Clause 3.3 of the Agreement for Services provided:
"In the event that the Contractor is unable or unwilling to perform the Services personally he shall arrange at his own expense entirely for another suitable person to perform the Services."
To this I should add what was contained in paragraph 13 of the schedule, where it is stated:
"In the event that the contractor provides a relief driver, the contractor must satisfy the company that such a relief driver is trained and is suitable to undertake the services."
(13) That right for Mr. Tanton to provide a substitute driver was utilized by him from time to time and exceptionally, throughout a period of six months whilst Mr. Tanton was ill, Mr. Tanton paying the substitute driver, though receiving remuneration from the appellant. Clause 3.3, as the chairman expressly found, is not a sham.
On those facts the chairman found in favour of Mr. Tanton. He regarded the degree of control exercised by the appellant as of significance, saying that the requirement as to hours, routes, van and uniform were strict, and that they suggested a contract of employment. He regarded clause 3.3 as only one factor out of many. He said that there might come a point where the provision of a substitute was so frequent as to change the whole nature of the arrangement, but that there was no evidence that that point had been approached. Earlier the chairman had said that, while he had taken into account any documents, he was more concerned with what actually occurred than with what the documents recorded as being the obligations of the parties.
On appeal by the appellant, the Employment Appeal Tribunal took the view that the chairman had reached a permissible conclusion, and concluded that no arguable point of law was raised and refused leave to appeal. However, leave to appeal to this court was granted by Pill L.J., as the single Lord Justice considering the application on paper.
Mr. Swift, for the appellant, argues before us that the chairman erred in law in his approach to the determination of the question whether or not Mr. Tanton was engaged under a contract of employment. He rightly submitted that the correct approach is as follows:
(1) The tribunal should establish what were the terms of the agreement between the parties. That is a question of fact.
(2) The tribunal should then consider whether any of the terms of the contract are inherently...
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