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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Alstom Transport v Tilson [2009] UKEAT 0358_09_1111 (11 November 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0358_09_1111.html Cite as: [2009] UKEAT 0358_09_1111, [2009] UKEAT 358_9_1111 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS ANYA PALMER (of Counsel) Instructed by: Messrs Zatman & Co 1 The Cottages Deva Centre Trinity Way Manchester M3 7BE |
For the Respondent |
MR MARK SAHU (of Counsel) Instructed by: Messrs Harold Benjamin Solicitors Hill House 67/71 Lowlands Road Harrow Middlesex HA1 3EQ |
SUMMARY
JURISDICTIONAL POINTS: Worker, employee or neither
The Employment Judge was wrong to decide a contractual document was bogus so opening the way for a finding in the Claimant's favour that he had an implied contract of employment. That ground was expressly eschewed by his counsel and the "employer" had no opportunity to address the point. The judgment was set aside as the intention of the parties was that there was no employment relationship.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The legislation
The facts
"Morson had an agreement for the Provision of Contract Workers with the Respondent. Under that agreement the term 'contractor' was used to describe someone supplied by the supplier to work an hourly paid assignment at the Respondent. Interestingly, under that agreement on pages 15-18 of the agreement Morson indemnifies Alstom as follows, 'In the event that an employment tribunal determines that Alstom is the employer of any worker supplied by the Suppliers (Morson) and upon any such determination makes an award against Alstom in respect of any claim of unfair, constructive or wrongful dismissal or redundancy brought by any such worker then the Suppliers shall indemnity Alstom against the amount so awarded provided that such awards are not as a result of any action (whether direct or indirect) on the part of Alstom or any Associate'. So the possibility of a finding of employment is expressly provided for.'"
"3.1 Neither the Company nor the Client shall be entitled to or seek to exercise any supervision, direction or control over the Contractor or the operatives in the manner of performance of the Project."
Also relevant to these proceedings are the following clauses:
"8.1 The Company is an employment business and nothing herein shall constitute the relationship of employer and employee or a partnership between the Company and the Contractor or the Operatives, or between the Client and the Contractor or the Operatives.
8.2 None of the Operatives has (in relation to the Company or the Client) any of the statutory or common law rights or protections of an employee. In particular neither the Contractor nor the Operatives is entitled to any payment from the Company whilst services are not being performed due to illness or holidays or has (in relation to the Company or the Client) any protection under the legislation relating to unfair dismissal and redundancy. None of the Operatives are subject to the rules or procedures or will receive the benefits applicable to employees of the Client or the Company."
27. Accordingly, the contract between Silversun and Morson may not be relied upon as genuinely determining or reflecting the relationship between the Claimant and the Respondent in this case. However, the Claimant was absorbed in the Respondent's organisation as described in paragraph 16 above and there is plainly a need to imply some sort of contract as regulating the relationship because the relationship was not gratuitous. There was mutuality of obligation in terms of the provision and performance of work. there will have been implied duties of fidelity and mutual trust and confidence. It would be possible to determine a statement of employment particulars under section 1 of the Employment Rights Act 1996. The nature of the relationship was entirely consistent within the Ready Mixed Concrete sense. The relationship was not consistent with the Claimant being in business on his own account. Accordingly, in my judgment it is necessary to imply a contract of employment as defining the relationship between the parties and giving business efficacy to it".
The cross-reference in the judgment is to paragraph 16, which summarised the judge's findings as to the integration of the Claimant into the Respondent's organisation. On the basis of that finding, therefore, the Claimant was an employee of Alstom, and the judge went on to find that he was unfairly dismissed.
The Respondent's case
The Claimant's case
"29. It follows also that I accept Miss Chudleigh's submission that the Chairman, in understating the hurdle which the Claimant must pass in showing an implied contract, then failed to answer the correct question. In my judgment it is not enough to form the view that because the Claimant looked like an employee of the Trust, acted like an employee and was treated like an employee, the business reality is that he was an employee and the ET must therefore imply a contract of employment.
30. When the correct question is asked the answer, in my view, is quite different. On the primary facts found the position was at least as consistent with there being no contract between the Trust and the Claimant; the affairs of the parties were as consistent with the express arrangements, that is the contract for services made between the Claimant and Short Term and the contract made between Short Term and the Trust for the supply of the Claimant's services. It cannot be said that it is necessary to infer a contract of service between the Trust and the Claimant, developing at some unspecified time during the triangular relationship, in circumstances where the Claimant applied for a permanent post and was rejected by the Trust. That, it seems to me, is wholly inconsistent with an inferred intention by the Trust to contract with the Claimant."
Discussion and conclusions
Disposal