Mirror Group Newspapers Ltd v Gunning
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE OLIVER,LORD JUSTICE BALCOMBE,SIR DAVID CAIRNS |
| Judgment Date | 05 November 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J1105-4 |
| Docket Number | 85/0677 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 November 1985 |
[1985] EWCA Civ J1105-4
Lord Justice Oliver
Lord Justice Balcombe
and
Sir David Cairns
85/0677
Appeal No. EAT712/85
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL
(MR. JUSTICE WAITE)
Royal Court of Justice
MR. ALEXANDER IRVINE QC and MR. RICHARD FIELD (instructed by Messrs. Nicholson, Graham & Jones, Solicitors, London EC2R 6AU) appeared on behalf of the Respondents (Appellants)
THE HON. MICHAEL BELOFF Q.C., and MR. JOHN HAND (instructed by Elizabeth Whitehouse, Equal Opportunities Commission, Manchester M3 3HN) appeared on behalf of the Applicant (Respondent)
This is an appeal from a judgment of the Employment Appeal Tribunal (Mr. Justice Waite, Mr. A. D. Scott and Mr. E.A. Webb OBE) on the 6th July 1984, dismissing the present appellants' appeal from a ruling of the Industrial Tribunal, on 3rd August 1983, that it had jurisdiction to hear a complaint by the respondent, Mrs. C.A. Gunning, that in declining to award her a contract for the distribution of certain of the appellants' Sunday newspapers they had unlawfully discriminated against her on the ground of her sex or married status contrary to s.6 (l) of the Sex Discrimination Act 1975. That sub-section provides, so far as material:
"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman…..
(1) by refusing or deliberately omitting to offer I her that employment".
The relevant facts for the purposes of the appeal can be shortly stated. They are set out more fully in the judgment of the Employment Appeal Tribunal which is now reported in (1984) Industrial Court Reports 706. Mrs. Gunning is the daughter of a Mr. Stark and was employed by him in the business which he ran of distributing Sunday newspapers in the Sheffield area. About 30% of the turnover of that business was represented by the distribution of the two Sunday newspapers published by the appellants. The business, although referred to both in the judgment under appeal and in that of the Industrial Tribunal as an "agency", was not an agency in any legal sense. It was an area distributorship, the "agent" purchasing the papers from the appellants and re-selling them to newsagents in the area. It had at one time employed as many as 17 people and owned five delivery vans, but at the date of the hearing the number of people employed had been reduced to eight packers and drivers, the transport consisting of private cars or rented vans. It supplies some 90 shops. The actual operation of sorting and delivering newspapers takes place at the British Rail Parcels Office at Sheffield and Mrs. Gunning's evidence was that she personally attended at the station with her father before his retirement, to participate in and supervise the process of reception, sorting, packaging and delivery.
In 1982, when her father was 67, he decided to retire and informed the appellants of this intention, accompanying that information with the expression of a hope that they would renew the distributorship in favour of his daughter. In the event the appellants decided not to renew the contract but to divide the supplies of their newspapers in the area between two other businesses. Their reasons for doing this are in issue between the parties to the proceedings and remain to be determined if the proceedings continue. At present the sole question is whether the Industrial Tribunal had any jurisdiction to hear the complaint at all.
Enough has been said to demonstrate that Mr. Stark was not "employed" by the appellants in any conventional sense of the word. He was simply an independent contractor with a franchise to purchase and distribute the appellants' goods. Mrs. Gunning's case, however, rests upon the extended definition of "employment" in s.82(1), which is in these terms:
"'Employment' means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly".
The Industrial Tribunal, as they stated in their judgment, found as a fact that "it was expected that she should in fact take an active part in the business".
The actual finding was in paragraph 17 of their decision and was expressed thus:
"The Tribunal, having carefully considered the evidence, finds as a fact that the personal involvement of the individual nominated as a wholesale agent is material to the offer of that agency; and that this, by itself, does require that the individual be directly involved at least in terms of overall day-to-day supervision of the work carried out by his or her agency".
Basing themselves on this, they concluded that
"the type of agency work done by the applicant constituted employment for the purpose of section 6(1), in that it was a contract personally to execute work or labour".
Accordingly they held that there was jurisdiction to entertain Mrs. Gunnings' complaint.
The appellants appealed to the Employment Appeal Tribunal on the grounds (a) that the ruling of the Industrial Tribunal was wrong in law in that the tribunal had misdirected itself as to the proper interpretation of the words "a contract personally to execute any work or labour" in s.82(l) of the Act; and (b) that in any event, there was no evidence upon which the tribunal could properly conclude that the agreement with the appellants imposed any personal obligation on the distributor to do anything other than pay for the newspapers supplied. The latter ground was, as I read the judgment, rejected by all three members of the Employment Appeal Tribunal.
On the point of interpretation, however, one of the members, Mr. Scott, was of the view that the distributorship agreement was not a contract of the type envisaged by the section and therefore did not constitute "employment" in the extended sense. The majority took the same view as the Industrial Tribunal but, on analysis, by a slightly different process of reasoning. The Industrial Tribunal appears to have considered that once there was found in a contract of any sort an obligation to do in person anything which could be described as "work or labour", no matter how indeterminate or what the extent of the obligation or its relationship to the contract as a whole, that concluded the question and the contract was, by that very fact alone, a "contract personally to execute any work or labour". The majority of the Employment Appeal Tribunal adopted a rather different approach which was expressed thus:
"The legislative purpose in applying the word 'any' to the expression 'work or labour' was, we believe, to indicate that the formula was meant to be a wide and flexible one. It would be a matter for the tribunal upon the terms of each particular agreement, properly construed according to its context, firstly to determine whether any (and if so which) of the duties requiring execution by the contracting party constituted work or labour, secondly to assess the extent to which he was required to undertake responsibility for their execution in his own person, and thirdly to look at the agreement as a whole, asking itself whether, having regard to those findings, the contract is properly to be regarded in essence as a contract for the execution of work or labour or as a bargain of some other kind…..The necessity in every case is to arrive at the essence of the transaction and for the tribunal to pursue its inquiry without applying any preconceptions".
They held that the process just described was the one adopted by the Industrial Tribunal, "though perhaps not consciously in those exact terms". They accordingly dismissed the appeal.
The appellants now appeal to this court on the same two grounds as were urged before the Employment Appeal Tribunal and on an additional ground that in any event the decision of the Industrial Tribunal cannot stand because, even if (contrary to the appellants' contention) the Employment Appeal Tribunal correctly interpreted the extended definition of "employment" in s.82(l) of the Act, the Industrial Tribunal did not direct itself according to that interpretation.
The first point is the pure point of law as to the correct meaning, as a matter of statutory interpretation, of the words "a contract personally to execute any work or labour". Here the primary division between the parties is as to the meaning of the word "any". Mr. Alexander Irvine QC, on behalf of the appellants, contends that the court has to read the section in the light of the fact that what it is doing is providing an extension of the meaning of the word "employment" in its ordinary sense of a contract of employment or service,the essential condition of which is that the employee engages to provide his own work or skill in return for remuneration. There may be lacking other essential conditions, for instance that of control by the other party to the contract, so that it does not qualify as a contract of service, but the essential concept is of a contract for the services of the "employee", the purpose of which is to make available to the other contracting party (the "employer") the services and skill of the contractor. An example would, for instance, be a contract for the painting of a portrait by an artist or the engagement of an actor, singer or dancer. Whilst it is true that the section uses the word "any" work or labour, Mr. Irvine submits that this cannot sensibly be applied to include within the definition every contract which contains a stipulation of...
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