B e f o
r
e :
MR JUSTICE MOSES
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MR J BOWERS QC & MR J LEWIS (instructed by
BBC
Litigation Department) appeared
on
behalf
of the
CLAIMANT
MR T LINDEN (MR J LADDIE) (instructed by Treasury Solicitors) appeared
on
behalf
of the
DEFENDANT
MISS S MOOR (instructed by Thompsons, London) appeared
on
behalf
of the
INTERESTED PARTY
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JUDGMENT
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Crown Copyright ©
Friday, 6th June 2003
MR JUSTICE MOSES: Introduction
- True enjoyment at supper in front
of the
television can only be achieved by
the
sight
of the
disappearing limbs
of
an insect within
the
mouth
of
a monitor. That that is so is due in no small measure to
the
high skills and professionalism
of
a body
of
wildlife cameramen and women. That they exercise their skills in a professional manner does not mean that they are professionals.
- In this
application
, which proceeds as a substantive hearing as a matter
of
urgency,
the BBC
challenges
the
decision
of
a panel
of the
Central Arbitration Committee ("
the CAC
") dated 30th April 2003.
The
panel decided that certain cameramen and women who work for
the
Natural History Unit are workers within
the
meaning
of
section 296(1)(b)
of the
Trade Union and Labour Relations (Consolidation) Act 1992 ("
the
1992 Act").
The CAC
is
the
body responsible for overseeing
the
statutory recognition procedure set out in Schedule A1 to
the
1992 Act.
The BBC
contend that in so deciding
the
panel erred in law. It goes further and contends that
the
only true and reasonable conclusion was that that group was a group
of
professionals and thus it was not open to
the CAC
to accept
the
Broadcasting Entertainment Cinematograph and Theatre Union's ("BECTU")
application
for recognition. Further arguments were raised as to whether, even if this was a group
of
workers, it was a group
of
individuals who work, normally work or seek to work within
the
meaning
of
section 296(1)
of the
1992 Act and as to whether
the
approach adopted by
the CAC
to
the
evidence, a group approach, was lawful.
Statutory framework
- By Schedule A1 paragraph 1
of the
1992 Act, headed "Collective Bargaining Recognition", Part 1 "Recognition":
"A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining
on
behalf
of
a group or groups
of
workers may make a request in accordance with this Part
of
this Schedule."
Section 296(1) provides, so far as material, as follows:
"(1) In this Act 'worker' means an individual who works, or normally works or seeks to work -
(a) under a contract
of
employment, or
(b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to
the
contract who is not a professional client
of
his or,
(c) in employment under or for
the
purposes
of
a government department ... in so far as such employment does not fall within paragraph (a) or (b) above."
The
relevant procedure under Schedule A1 was set out by Elias J in his decision in Kwik-fit GB Limited v Central Arbitration Committee and adopted by
the
Court
of
Appeal in
the
appendix to its decision [2002] ICR 1212. I adopt that analysis gratefully:
"7.
The
process commences with
the
trade union making a request for recognition from
the
employer. Certain conditions must be met if
the
request is to be treated as valid within
the
terms
of the
legislation ...
8.
The
employer is given 10 working days to agree
the
request. If
the
request is accepted that is
the
end
of the
matter. If it is rejected or there is no response, then
the
union applies for recognition. This is made pursuant to paragraph 11(2) ...
9.
The
second stage is
the
acceptance or otherwise
of the application
.
The CAC
must decide two questions in order to determine whether
the application
can be accepted ...
10.
The
third stage is
the
determination
of the
bargaining unit [
the
principal issue in that case]."
By paragraph 2(2)
of
Schedule A1:
"(2) References to
the
bargaining unit are to
the
group
of
workers concerned (or
the
groups taken together).
(3) References to
the
proposed bargaining unit are to
the
bargaining unit proposed in
the
request for recognition."
Paragraph 3(3) provides:
"References to collective bargaining are to negotiations relating to pay, hours and holidays; but this has effect subject to subparagraph (4)."
- It is important to observe at this stage two features.
The
purpose
of
this legislation was explained by Elias J at paragraph 6 as being "to enable a trade union which is refused recognition by an employer to use
the
legal process to require
the
employer to enter into collective bargaining".
The
second feature to be observed is that
the
definition
of
worker (section 296(1)) is not confined to provisions
of
Schedule A1 in relation to recognition. It also applies to provisions which go to
the
very heart
of the
1992 Act because it is central to
the
definition
of
trade union at section 1. A trade union means an organisation which consists wholly or mainly
of
workers. Thus
the
definition is crucial in relation to identifying those groups upon whom rights are conferred and obligations imposed collectively under
the
1992 Act, for example in relation to liability in tort under section 20, to
the
limitation
on
damages under section 22, as to accounting obligations in section 28, elections under section 46, political funding under section 71, in relation to
the
scope
of
ACAS advice (see section 218) and as to
the
definition
of
trade disputes under section 244.
The
decision
of the
panel
- In its decision at paragraph 6
the
panel pointed out that "[it] is unable to proceed with
the application of
a number
of the
relevant tests until it is determined whether
the
individuals contained within
the
proposed bargaining unit are 'workers' for
the
purposes
of the
Act". At paragraph 7
the
issue is identified as being whether "
the
individuals within
the
bargaining unit are 'workers' for
the
purposes
of
section 296(1)(b)".
- There was reference to
the
standard documentation pursuant to which
the BBC
entered into agreements with
the
cameramen and camerawomen and as to a contacts list which contained contact details and, where appropriate, an agreed rate in respect
of
wildlife cameramen and women who had at some point in time been contracted by
the
Natural History Unit
of the BBC
.
The
list also identified what additional or special equipment was available from individuals for an additional hire fee. There was also a procedure set out for those individuals who wished to increase
the
rate they sought to charge.
The
arguments
of the
union were set out particularly at paragraphs 11 and 12
of the
decision.
The
union referred to
the
clauses according to which
the BBC
entered into contracts with
the
individuals.
The
union argued that professional meant something narrower than merely running a business and should not be regarded as
the
converse
of
amateur.
The
submissions
of the
company were set out from paragraph 14.
The
company said that each worker should establish by evidence that they were workers and not professionals.
The BBC
produced a spreadsheet giving details
of the
engagements
of
49 freelance cameramen and women between March 2001 and December 2002 who were covered in
the
contact list. At paragraph 16
the BBC
set out those factors upon which they relied in demonstrating that
the
cameramen and women were professionals:
"(a) a high level
of
skill, with sub-specialisms.
The
absence
of
an academic test is not fatal to this.
(b) involvement in short-term engagements;
(c) Schedule D tax status and liability to VAT;
(d)
the
flexibility to operate variously as individuals, partnerships, trading names and companies;
(e) working for a range
of
organisations, at an arm's length relationship;
(f)
the
right to substitute;
(g) provision
of
equipment, which may vary according to their sub-specialism;
(h)
the
existence
of
a professional association;
(i) rates being subject to negotiation;
(j) a relatively high level
of
earnings;
(k) work with an artistic flavour,
of
a kind that distinguishes a painter and decorator,
on the
one hand, from an interior designer,
on the
other."
The
central decision and reasoning
of the
panel is set out at paragraphs 21 and 22:
"21.
The
second issue for
the
Panel to determine is whether
the
relationship
of the
wildlife cameramen/women with
the
Company is that
of
professional and client.
The
Panel considers that it is
the
relationship between these individuals and
the
Company that is material, not
the
individuals' general status. It is therefore satisfied that it is able to decide this point
on the
basis
of the
evidence before it. It was common ground between
the
parties that there is no legal definition
of
a profession.
The
Panel notes that, in contrast to other legislation,
the
definition
of
a 'worker' in
the
Act does not exclude clients or customers
of
a 'business undertaking'.
The
reference to clients and customers
of
a business undertaking in that other legislation, in addition to
the
professional/client relationship, suggests that a professional cannot be equated with a person who operates a business undertaking. A professional cannot, therefore, be compared merely with an amateur. We are persuaded that, as an exception to
the
definition
of
a 'worker',
the
term professional should be narrowly construed. We do not seek to put forward a comprehensive definition
of the
term. However, we consider that some form
of
regulation
of
a professional's field
of
activity by a body covering those engaged or seeking to be engaged in that activity is required in order for any individual to be categorised as a 'professional'. This test is not met by
the
cameramen/women engaged by
the
Company. It was common ground between
the
parties that they may be members
of the
International Association
of
Wildlife Filmakers, which was described by
the
Union in its
application
as a 'professional association'. However, Mr Spence,
the
Union's Assistant General Secretary,
the
signatory to
the application
, informed
the
Panel that he had used this term in a colloquial sense and that membership
of the
association was not compulsory.
The
voluntary nature
of
membership was not disputed by
the
Company. We consider that
the
other arguments put forward by
the
Company for a professional/client relationship are more consistent with
the
relationship
of the
client or customer
of
a business undertaking than with a professional/client relationship. We note
the
Company's evidence that no technical standards or procedures are currently issued to Freelances pursuant to clause 10.2
of the
Freelance Terms
of
Trade, relied upon in
the
Union's submission, and this clause has played no part in our decision.
22.
The
final issue for
the
Panel to determine is whether
the
individuals within
the
proposed bargaining unit work, or normally work or seek to work for
the
Company.
The
Union has defined its proposed bargaining unit by reference to
the
Company's 'Contacts List', described in paragraph 8 above. Ms Hamilton, a Production Executive at
the
Company's Natural History Unit, confirmed that
the
individuals detailed in
the
spreadsheet referred to in paragraph 14 above are
the
same as those
on the
Company's Contacts List. Mr Hellier stated that in his view everyone
on the
Contacts List would like to be offered work by
the
Company. In view
of
this evidence,
the
Panel concludes that individuals who are
on the
Contacts List, if they do not work or normally work under a contract whereby they undertake to do or perform personally work or services for
the
Company, can be regarded as seeking under such a contract for
the
purposes
of
section 296(1). Mr Hellier indicated that individuals who are not
on the
Contacts List may also be offered work. However
the
fact that there may be other individuals not within
the
proposed bargaining unit who may have
the
potential to fall within
the
definition
of
a 'worker' is not material to
the
issue that
the
Panel is required to decide."
Approach
of the
court to
the
decision
of the
panel
- It is important to emphasise
the
restricted scope for intervention by this court.
The CAC
is a permanent and independent arbitration body. Originally its functions were limited to carrying out voluntary and unilateral arbitrations in
the
sphere
of
industrial relations.
The
Employment Relations Act 1999, which introduced
the
statutory recognition procedure under Schedule A1, significantly enlarged its role. Members
of the CAC
are appointed by
the
Secretary
of
State and are required to be "persons experienced in industrial relations" (see section 260(3)).
The
chairman
of the CAC
establishes a three member panel to deal with any
application
for recognition. Unlike employment tribunals, there is no requirement that
the
chairman
of the
panel or
the
other members be legally qualified. There is no equivalent to
the
detailed Employment Tribunal (Constitution and Rules
of
Procedure) Regulations 2001, in contrast to
the
employment tribunal system. There is no express power to order disclosure
of
documents or to require attendance
of
witnesses.
The
chairman has a discretion to sit in private but there is provision for cases where
the
panel is not unanimous.
The
panel determines its own procedure subject to those provisions (see section 263A(7)). Paragraph 171
of
Schedule A1 is important. It provides:
"In exercising its functions under this Schedule in any particular case
the CAC
must have regard to
the
object
of
encouraging and promoting fair and efficient practices and arrangements in
the
workforce, so far as having regard to that object is consistent with applying other provisions
of
this Schedule in
the
case concerned."
- It is clear, therefore, that
the
proceedings are intended to be informal, non-legalistic and conducive to good industrial relations rather than litigation. To that extent it is in marked contrast to
the
recognition procedure under
the
former Employment Protection Act 1975, in which
applications
became hopelessly bogged down with legal challenges.
The
process under Schedule A1 is designed to encourage a speedy momentum rather than delays.
The
intervals between each
of the
successive stages are specified and they are short.
The CAC
must decide whether to accept an
application
within ten working days from receipt (see paragraph 15(6)(a)). There is a discretion to extend time, but reasons must be given for such an extension. Paragraphs 18 and 19 provide a period
of
20 working days during which
the
parties have an opportunity to reach agreement in relation to
the
appropriate bargaining unit, after which
the CAC
has but 10 working days to decide an appropriate bargaining unit should there not be agreement. It is inherent within
the
procedure that
the
parties should attempt to reach agreement and only as a last resort refer to
the CAC
for a decision. This is quite inconsistent with a legalistic approach.
- These considerations reinforce
the
reluctance
of
any court to intervene and
the
rare occasions when it would be appropriate to do so. It is for
the
expert body,
the
panel
of the CAC
, to identify whether a group
of
individuals concerned are undertaking to work or normally working or seeking to work in
the
exercise
of
a profession, as a matter
of
fact, and in
the
context
of the
statutory scheme and its purpose.
- If authority is required in support
of
that proposition it can readily be found at paragraph 23 in
the
judgment
of
Elias J in Kwik-fit, as endorsed by Buxton LJ at paragraph 2
of
his decision in
the
Court
of
Appeal, in which he said:
"I would also venture to endorse in strong terms what was said by
the
judge in paragraph 23
of
his judgment, that
the CAC
was intended by Parliament to be a decision making body in a specialist area that is not suitable for
the
intervention
of the
courts. Judicial review, such as is sought in
the
present case, is therefore only available if
the CAC
has either acted irrationally or made an error
of
law."
- Further support for
the
proposition can be found in
the
speech
of
Lord Scarman in relation to ACAS in United Kingdom Association
of
Professional Engineers v Advisory, Conciliation and Arbitration Service [1981] AC 424, where at page 441G he said:
"
The
courts have no part to play other than to exercise their function
of
judicial review in
the
event
of
a challenge to
the
legality
of
any act or omission
on the
part
of the
bodies entrusted by statute with
the
duty
of
promoting
the
improvement
of
industrial relations."
At page 442E-F he continued:
"
The
courts will not tell a statutory body how it is to conduct its business or what decision, report or recommendation it is to make. They will invalidate
the
exercise
of
a statutory body's judgment or discretion only if satisfied that no reasonable person charged with
the
body's responsibilities under
the
statute could have exercised its power in
the
way that it did."
First issue - error
of
law
The
criteria for identifying whether
the
group referred to in paragraph 1
of
Schedule A1
of the
1992 Act is a group
of
workers is not specified in
the
Act. This led to an argument whether, as
the BBC
contended,
the
approach adopted by
the
panel was too narrow.
The
statute, contended
the
union, intended a narrow approach.
- I found this a somewhat arid argument unless and until
the
parties explained what it is they meant by a narrow or broad approach. It is
of
assistance to be told to take a narrow approach without more.
The
correct approach is dictated by
the
terms
of the
definition
of
section 296 itself. Any group
of
individuals who work, normally work or seek to work under a contract, other than a contract
of
employment, whereby that group undertakes to do or perform personally any work or services for another would be a group
of
workers but for
the
requirement that
the
group does not or does not seek to do so under a contract in
the
exercise
of
a profession. If
the
group is not or is not seeking to exercise a profession it would come within
the
definition. Thus,
the
statute requires some feature or features which go beyond
the
mere personal performance
of
work or services to
the
extent that
the
work can be recognised as
the
exercise
of
a profession.
- I am not sure any greater assistance can be gained by describing that as a narrow approach, but that there is a distinction between personal performance
of
work or services and such performance in
the
exercise
of
a profession is plain from
the
terms
of the
section itself. Further support for
the
necessity to make such a distinction can be derived from those statutory provisions where Parliament has chosen to make no such distinction.
The
definition in section 296(1) is relevant to those provisions dealing with collective rights and obligations. Where rights are conferred
on
individuals
the
definition
of
worker is less inclusive. It excludes both non-professionals exercising a business undertaking and those exercising a profession. In regulation 2(1)
of the
Working Times Regulations
the
definition
of
worker is as follows:
"'Worker' means an individual who has entered into or works under ... any other contract ... whereby
the
individual undertakes to do or perform personally any work or services for another party to
the
contract whose status is not by virtue
of the
contract that
of
a client or customer
of
any profession or business undertaking carried
on
by
the
individual [my emphasis]."
A similar definition is adopted in
the
Employment Rights Act 1996 at section 230(3).
- In those circumstances,
the
contention that individuals within a group undertake to do or perform personally any work or services in
the
exercise
of
a profession must identify particular features which identify
the
work as
the
exercise
of
profession. It seems to me difficult and dangerous to go further. There was some debate as to
the
purpose
of the
section. Mr Bowers QC,
on
behalf
of the BBC
, whilst accepting that
the
section was designed to draw a distinction between professional and non-professional (an observation with which no-one could possibly disagree), sought to demonstrate that
the
greater
the
degree
of
dependence
on the
other party to
the
contract,
the
more likely it would be that
the
work or service provided was a worker.
The
paradigm
of
worker within section 296, he argued, is an employee who is dependent upon
the
employer for terms as to hours, pay and holidays and whom
the
statute seeks to protect under
the
umbrella
of
collective bargaining.
The
less dependent one party is upon other party to a contract in respect
of
pay, hours and holiday (
the
matters in respect
of
which there is an obligation to enter into negotiation under paragraph 3(3)
of the
Schedule),
the
less likely
the
person is to be a worker.
- He relies in support
of
that proposition
on
a case concerning
the
Working Time Regulations, namely Byrne Bros (Formwork) Ltd v Baird and others [2002] ICR 667. At page 677, paragraph 17(4), Mr Underhill QC,
the
Chairman, said:
"It seems to us that
the
best guidance is to be found by considering
the
policy behind
the
inclusion
of
limb (b). That can only have been to extend
the
benefits protection to workers who are in
the
same need
of
that type
of
protection as employees stricto sensu - workers, that is, who are viewed as liable, whatever their formal employment status, to be required to work excessive hours ... to suffer unlawful deduction from their earnings or to be paid too little.
The
reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-a-vis their employers:
the
purpose
of the
Regulations is to extend protection to workers who are, substantively and economically, in
the
same position. Thus
the
essence
of the
intended distinction must be between,
on the
one hand, workers whose degree
of
dependence is essentially
the
same as that
of
employees and,
on the
other, contractors who have a sufficiently arm's-length and independent position to be treated as being able to look after themselves in
the
relevant respects."
- I derive no assistance from this passage. It may be true that a professional is less in need
of the
protection afforded by a union exercising
the
right to enter into negotiations as to pay, hours and holiday, but so too may that be said
of
a non-professional working under a contract with a particular party for only a short part
of the
year and thus not particularly dependent
on
that particular party. Equally, a professional may become particularly dependent upon one client. It may well be, although in fact I had no evidence
of
it, that
the BBC
is a particularly important and significant body engaging
the
services
of
wildlife cameramen and women. I do not find
the
test
of
dependence
of
any assistance in
the
context
of
collective bargaining as opposed to
the
conferring
of
individual rights and protection.
The CAC
is thus left by
the
statute to recognise those who undertake or seek to undertake work in
the
exercise
of the
profession and those who do not.
The
statute lays down no criteria but trusts
the
expertise
of the CAC
.
The CAC
must obviously look at all
the
circumstances and characteristics
of the
work, but it is for them to decide what weight to give to those characteristics, to decide which features they regard as significant and which features they regard as irrelevant.
- I am conscious that these observations are
of
little assistance and may be regarded as trite. It is dangerous to derive support from observations
of
other judges in different statutory contexts, but what I have said is intended to differ in no respect from
the
words
of the
Court
of
Appeal in
the
different statutory context
of the
Finance Acts. In Currie v Commissioners
of
Inland Revenue [1921] 2 KB 332, Lord Sterndale, Master
of the
Rolls, in considering whether a tax payer was carrying
on
a profession and was thus outwith
the
charge to excess profits duty under
the
Finance (No 2) Act 1915, said:
"
The
first question that has been debated before us is this: 'Is
the
question whether a man is carrying
on
a profession or not a matter
of
law or a matter
of
fact? I do not know that it is possible to give a positive answer to that question; it must depend upon
the
circumstances with which
the
Court is dealing."
He went
on
:
"... between those two extremes there is a very large tract
of
country in which
the
matter becomes a question
of
degree; and where that is
the
case
the
question is undoubtedly, in my opinion, one
of
fact..."
- In relation to
the
tax-payer in that case, who was an accountant, Lord Sterndale emphasised that
the
Special Commissioners were far better qualified to judge whether
the
work was that
of
a professional or not and declined to interfere with their decision (see page 337). He expressed concern as to whether
the
commissioners had attached too much weight to
the
fact that
the
accountant was not a chartered accountant, but declined to interfere, even though he appears to have been
of the
view that too much weight might have been attached to that consideration (see page 338). Scrutton LJ said at page 340:
"In my view it is impossible to lay down any strict legal definition
of
what is a profession, because persons carry
on
such infinite varieties
of
trades and businesses that it is a question
of
degree in nearly every case whether
the
form
of
business that a particular person carries
on
is, or is not, a profession. Accountancy is
of
every degree
of
skill or simplicity. I should certainly not assent to
the
proposition that as a matter
of
law every accountant carries
on
a profession or that every accountant does not.
The
fact that a person may have some knowledge
of
law does not, in my view, determine whether or not
the
particular business carried
on
by him is a profession ... Art is a matter
of
degree, and to determine whether an artist is a professional man again depends, in my view,
on the
degree
of
artistic work that he is doing. All these cases which involve questions
of
degree seem to me to be eminently questions
of
fact, which
the
Legislature has thought fit to entrust to
the
Commissioners, who have, at any rate, from their very varied experience, at least as much knowledge, if not considerably more,
of the
various modes
of
carrying
on
trade than any judge
on the
bench."
He then emphasised that
the
matter was a matter
of
degree for
the
Commissioners and concluded by commenting:
"... I myself am disposed to attach some importance in findings as to whether a profession is exercised or not to
the
fact that
the
particular man is a member
of
an organised professional body with a recognised standard
of
ability enforced before he can enter it and a recognised standard
of
conduct enforced whilst he is practising it. I do not for a moment say it settles
the
matter, but if I were deciding a question
of
profession I should attach some importance to that particular feature."
- Similarly, in Carr v Inland Revenue Commissioners [1944] 2 All ER 463
the
Court
of
Appeal considered
the
decision
of the
Commissioners that a fully qualified optician was carrying
on
a profession within
the
meaning
of the
1939 Finance (No 2) Act.
The
observations
of
du Parcq LJ were founded upon
the
dicta
of
Lord Sterndale MR in
the
case I have already cited. Du Parcq LJ said:
"... before one can say that a man is carrying
on
a profession, one must see that he has some special skill or ability, or some special qualifications derived from training or experience. Even there one has to be very careful, because there are many people whose work demands great skill and ability and long experience and many qualifications who would not be said by anybody to be carrying
on
a profession."
At page 167 du Parcq LJ pointed out that
the
categories were not closed and as time has moved
on
so did
the
number and status
of the
professions.
- These observations were made in a very different statutory context, but they do provide some guidance as to
the
sort
of
factors which a body such as
the CAC
might care to take into account when identifying one who is exercising a profession or not and an important warning to courts such as this not to interfere with
the
views
of the
body charged with such identification.
The
error
of
law for which it is contended lay in
the
panel stating that before a group
of
workers may be said to be exercising a professional activity, that group must be subject to regulation by a body covering those engaged or seeking to be engaged in
the
activity in question (see paragraph 21).
The
panel went
on
to say: "This test is not met by
the
cameramen and women engaged."
- I am satisfied that
the
panel did regard it as an essential requirement
of
profession activity that that activity be subject to regulation by some supervisory body. I am also satisfied that to impose such a requirement amounted to an error
of
law. It is
of
course essential that
the
decision
of the
panel is read as a whole. It must not be read as a statute; it must be delivered speedily and may be given by those who are not trained lawyers, though I hasten to say not in
the
instant case. There is no obligation to give reasons at all, but
the BBC
was entitled to know why its contention that
the
cameramen and women were exercising a profession was unsuccessful, at least in broad terms. I am satisfied that it was
the
failure
of the
group to satisfy
the
test
the CAC
imposed which led to its conclusion that
the
cameramen and women were not exercising a profession.
- It was argued by Miss Moor,
on
behalf
of the
union, that there was a freestanding reason not dependent upon
the
test imposed as a requirement by
the
panel. She referred to
the
passage at paragraph 21 in which
the
panel said:
"We consider that
the
other arguments put forward by
the
Company for a professional/client relationship are more consistent with
the
relationship
of the
client or customer
of
a business undertaking than with a professional/client relationship."
The
panel was entitled to find
the
features which it there described by reference back to
the
arguments
of the BBC
at paragraph 16 (which I have already quoted) as being as consistent with a business undertaking as with
the
exercise
of
a profession. It was certainly open to
the
panel to find that those factors were insufficient to establish that
the
group was exercising a profession. It is difficult to see quite how
the
panel can have described
the
features
of
(a), namely a high level
of
skill and sub-specialisms and (k) work with an artistic flavour, as being more consistent with
the
relationship
of
customer
of
a business undertaking than with a professional/client relationship, but at least, I emphasise, it was open to
the
panel to regard those features as not being sufficiently particular as to connote
the
exercise
of
a profession. But, I conclude that
the
essential basis for
the
decision
of the
panel was its decision that there was no regulatory body, a requirement which it considered essential. There are no qualifying words before
the
reference to
the
other arguments and nothing to indicate that it regarded those reasons as being freestanding. It is, in my view, impossible to say that
the
panel's view was not coloured by
the
inability
of the
group to satisfy
the
requirement
the
panel had imposed for a regulatory body.
- That is not to say that
the
existence or absence
of
a regulatory body is not a relevant feature. Had such a body existed,
the
panel would have been entitled to conclude that it was a powerful feature pointing to
the
exercise
of
a profession. It would be a sufficient, although not a necessary, condition. Equally,
the
panel was entitled to regard
the
absence
of
such a feature as significant if there were no other features pointing towards
the
existence
of
a professional activity rather than
the
mere exercise
of
a business activity. There may be cases, and indeed
the
instant case may be an example, where all
the
features
of the
activity point either way. In those circumstances
the
absence
of
a regulatory body may be
the
significant feature which demonstrates that
the
activity is not that
of
a professional. But it is clear to me that that was not
the
approach
of
this panel. It went beyond that and imposed a test for which there is no warrant. It must surely be possible to envisage
the
exercise
of
a profession, and that
of
an interior designer was used as an example, in respect
of
which no regulatory body exists.
The
imposition
of the
requirement for
the
existence
of
a regulatory body was, in my view, an error
of
law which taints
the
panel's decision. Accordingly,
the
decision must be quashed.
- I should emphasise that I am far from saying that
the
conclusion that
the
cameramen were workers within
the
meaning
of
section 296 was not open to
the
panel. It was a matter for them, having considered all those features which they regarded as relevant, but it was not open to them to impose
the
test they identified.
Second issue - "seeking to work"
- In
the
light
of
my conclusion it is unnecessary to dwell upon
the
remaining issues, save insofar as they may be necessary for
the
further consideration
of the CAC
which must follow my decision.
The BBC
argue that it was not open to identify those
on the
contact list as falling within those who worked or normally work or seek to work. It contended that
the
contact list contains only those who in
the
past 21 months have worked under a generic contract with
the BBC
sometimes, as
the
spreadsheets demonstrated, for no more than one day. There was no evidence, it contended, that those
on the
contact list were seeking to undertake any work over and above that which had already been performed.
The
short answer to that submission is that there was such evidence as accepted by
the
panel and recorded at paragraph 22, when
the
panel recorded: "Mr Hellier stated that in his view everyone
on the
Contacts List would like to be offered work by
the
Company". It was a matter for
the
panel whether that was sufficient to establish
the
test imposed in section 296(1) or not. It is clear they were satisfied that it did.
- It was argued further
on
behalf
of the CAC
that even absent
the
evidence
of
Mr Hellier, it was open to
the
panel to conclude that, as a group, these were
the
sort
of
individuals who seek to work under a contract for another who is not a professional client. No particular contract need be in existence and no particular other party need be in mind.
The
definition is concerned with a group and not particular individuals. It is concerned with types or species.
- It seems to me unwise to give any view in
the
light
of the
fact that there was evidence to satisfy
the
requirement, even
on the BBC
's argument. But it is open to
the CAC
to approach
the
question looking at
the
wording
of
paragraph 1
of
Schedule A1. This refers to a group
of
workers. Such a group may exist even though there may be individuals within that group who are no longer seeking to work. Thus, it is open to
the CAC
to look at
the
group as a whole and no requirement to look at every member
of the
group.
- I stress that
the
procedure is intended to be informal and speedy. It is up to
the CAC
to determine
the
nature and extent
of the
evidence it regards as sufficient to satisfy
the
requirements
of
paragraph 1
of
Schedule A1 as defined by section 296. It is important that concentration
on the
definition should not lead anyone to lose sight
of
paragraph 1
of the
Schedule.
Third issue - detailed evidence
- Those observations lead me to
the
third issue, namely whether
the
panel was required to consider particular evidence relating to
the
circumstances
of the
individuals amongst
the
49
on the
contact list. Again, this is only relevant for future consideration.
- Mr Bowers' submission
on
behalf
of the BBC
changed radically, and sensibly so. At paragraph 28
of the application
for judicial review
the BBC
contended that
the
issue could not be approached
on
a global basis as
the CAC
did;
the
only appropriate way for
the CAC
to have resolved
the
matter was for evidence to be adduced in relation to each particular worker to demonstrate that he is a worker and for such evidence to be tested, with workers being subject to cross-examination. A similar submission was made in
the
written argument at paragraph 19.
- This submission was subsequently modified before me. Mr Bowers QC submitted that
the
panel should at least have considered whether
the
circumstances varied within
the
group so as to distinguish those
on the
list who had only worked for a day or a few days from those who had worked more often. For
the
reasons I have already given, I do not see how that would assist. One may be exercising a profession though one has only worked in
the
past
on
one day, or merely a worker although one has only worked in
the
past for one day.
The
length
of
time one has worked will not assist as to status or whether there has been an exercise
of
professional activity since, as I have concluded,
the
test
of
dependency
on
a particular contractor is not
of
help.
The
short time and informality
of the
proceedings makes this an impossible submission and
the
panel cannot be required to undertake
the
wholly impractical task originally suggested. Again, I emphasise,
the
focus
of
paragraph 1
of
Schedule A1 is
on
a group and not
on the
particular individuals within
the
group. It is up to
the
panel to determine what evidence it needs and
the
extent to which it satisfies them (see again UKAPE v ACAS at page 422E). Further,
the
question
of
whether there exist those who should not form part
of
what
the
statute describes as a bargaining unit arises at
the
later stage, Elias J's third stage. If there is no agreement
the CAC
must determine
the
bargaining unit under paragraph 19. That powerfully demonstrates that, at
the
earlier stage
of
consideration
of the
request, it is
the
group which must be considered and not particular individual characteristics which may later fall for consideration in determining
the
appropriate bargaining unit.
The
approach to
the
evidence adopted by this panel cannot be faulted, but for
the
reasons I have advanced
the
matter will have to be considered again by a different panel.
- MR LEWIS: My Lord, I was going to address you
on the
issue as to whether it should go back to
the
same panel or a different panel.
- MR JUSTICE MOSES: I have said it is a different panel but I will hear argument if someone says it should be
the
same.
- MR LEWIS: It was not my submission, it is my submission it should be different.
- MR LADDIE: My Lord, I appear
on
behalf
of the
defendant. We submit that it should be
the
same panel, principally for reasons
of
expedition. Your Lordship has already indicated
the
primary function
of the CAC
. We consider there is a danger
of
duplicated time and money being wasted should
the
matter be referred --
- MR JUSTICE MOSES: I know. I have great sympathy with that, but, with
the
greatest and best will in
the
world, suppose they come back, as they may very well do, with exactly
the
same answer, they have to approach it as a fresh matter, and how will
the BBC
ever believe that they have not just sort
of
tarted it up to be consistent with -- I do not mean to be unkind, but we are all human. Or,
on the
other hand, if they come to a different decision it is because they do not want to appear to have been coloured by their earlier one. I know it is going to take up further time -- well, I know from watching
the
seals being tossed and killer whales, that this group has been around for some time. A few more weeks or months -- it is expensive for your people --
- MR LADDIE:
The
only thing I would add is that if that argument, with respect, was adopted no cases would ever be remitted to
the
same tribunal.
- MR JUSTICE MOSES: It depends
on the
grounds, it depends
on
why.
- MISS MOOR: My Lord, I adopt
the
submissions
of
my learned friend. I would say that speed is
of
particular importance in
the
statutory context given
the
procedure you identified.
- MR JUSTICE MOSES: I know, but I mean how long has this group being going
on
without BECTU?
- MISS MOOR: My Lord,
the
fact
the
group have been in existence for some time is, I would say, not
the
relevant factor. Speed becomes important once
the
group makes an
application
for bargaining. Then matters being crystallised.
- MR JUSTICE MOSES: Why is it going to so difficult to find three other people?
- MISS MOOR: I would not say that was difficult, but a further hearing would be required which would not be required if you were required to remit
the
matter to
the
same panel, it having been seized
of
all
the
information before it. There is no suggestion that
the
panel was somehow prejudiced or --
- MR JUSTICE MOSES: No, no, I am talking about human characteristics.
- MISS MOOR: You hear
the
submissions, my Lord.
- MR JUSTICE MOSES: Yes, thank you very much. I shall order it be a different panel.
- MR LEWIS: I am grateful, my Lord. My Lord, can I hand up a statement
of
costs.
- MR JUSTICE MOSES: You have not asked for them yet. Ask for
the application
to be allowed firstly and then you ask for your costs.
The application
is allowed. I shall give permission as a matter
of
formality, although there was sort
of
consent, and I shall allow
the application
. Right. You ask for costs first
of
all. Does anybody have anything to say about
the
costs?
- MR LADDIE: I understand my learned friend is applying for costs from
the
defendant. My Lord, our observations are as follows.
The
defendant is a judicial or quasi-judicial body and in
the
normal run
of
affairs judicial bodies or quasi-judicial bodies do not tend to appear in
the
Administrative Court to defend their own decisions.
The
reason why --
- MR JUSTICE MOSES: Those submissions were successful.
- MR LADDIE: Indeed, propositions 2 and 3. In those circumstances, in my submission, it would be inappropriate to award
the
successful claimant its costs, but it would be appropriate to award
the
defendant its costs
of
attending.
- MR JUSTICE MOSES: Against whom?
- MR LADDIE: Against
the BBC
.
- MR JUSTICE MOSES: Thank you very much. I am going to say no order as to costs.
- MR LEWIS: I am grateful, my Lord.
- MR JUSTICE MOSES: You lost
the
two points which
the CAC
were -- you won another point. You have not asked for costs against
the
interested party.
- MR LEWIS: That was my next submission. My Lord, I can see
the
point being made --
- MR JUSTICE MOSES: I was proposing to give
the BBC
half its costs. It lost two
of
its points and won one
of
them.
- MR LEWIS: I would say
the
priority was for
the
matter to be dealt with in
the
round, but I would be content with that order.
- MR JUSTICE MOSES: Let us hear what Miss Moor says.
- MISS MOOR: My Lord, we object in principle to an order being made against us.
Of
course we are in
the
middle
of
a challenge against
the
decision
of the CAC
.
- MR JUSTICE MOSES: But it was your argument that seems to have tilted
the
panel into making this error.
- MISS MOOR: It was not, with respect. We did not suggest any such test towards
the
panel and ought not to be required to pay for
the
hearing which puts it right. We suggested a number
of
factors
of
course but not a minimum test for regulation by a body, which was why
the
matter --
- MR JUSTICE MOSES: You could have saved time by saying, "we think they got it wrong, they better do it again".
- MISS MOOR: Well, not very much given that a great deal
of
time was spent in relation to
the
second and third matters, which were not
of
--
- MR JUSTICE MOSES: That is why I was not going to give all
the
costs against you.
- MISS MOOR: If you are against me
on the
matter
of
principle, I have a number
of
points to make about
the
assessment itself.
- MR JUSTICE MOSES: Let us wait and see. I shall give
the BBC
half its costs. It seems to me that they lost two out
of the
three, they won an important one, and in those circumstances they should have half their costs against
the
interested party.
- MR LEWIS: I am grateful. Can I hand this up.
- MR JUSTICE MOSES: I think I have it. Is this
the
one that ends up with £16,000?
- MR LEWIS: It is. Perhaps it just needs an explanation. At
the
bottom
of the
list you see
the
heading "counsel's disbursements" and a figure is given there. I ought to make clear that that relates to
the
costs
of
drafting in this matter, so matters such as statement
of
grounds.
- MR JUSTICE MOSES: It says solicitor's disbursements, £4,200.
- MR LEWIS: It should in any event relate to counsel's disbursements, my Lord.
- MR JUSTICE MOSES: With some more fees
on
top. I do not know what a counsel's disbursement is.
- MR LEWIS: That is what I was endeavouring to explain. What it is intended to relate to, but unfortunately it is not made clear, are
the
fees
of
work done
on
preparing
the application
.
- MR JUSTICE MOSES: That was you, was it?
- MR LEWIS: Yes, my Lord.
- MR JUSTICE MOSES: You get £7,000-odd?
- MR LEWIS: Well, it is a combination
of
myself and Mr Bowers, my Lord. No, I do not get £7,000 from this.
- MR JUSTICE MOSES: You get a cut. I have your figures.
- MISS MOOR: We have a number
of
points
of
principle to make
on the
amounts, my Lord.
- MR JUSTICE MOSES: Did you submit your own summary
of
costs?
- MISS MOOR: We have. Ours came to a total
of
£4,700-odd and you will see that
the
defendant's costs come to £6,000, taken together far less than
the
sum
of the
claimant's costs. We make firstly
the
point that two counsel were not required for
the
case. You will see from
the
papers that Mr Bowers appeared below. Much
of the
work done in relation to
the
grounds
on
this
application
was work already done. Much
of
his submissions below were repeated there. Whilst it is always a pleasure to see two counsel, it is not for us to be required to pay. We also contend that
the
amount
of
counsel's fees is high, and whilst plainly
the BBC
is entitled to choose and agree for expensive counsel, it is not for
the
union to pay in respect
of
a one day case where
the
fees
of
counsel
on the
claimant's side are a great deal higher than in total
the
defendant's and
the
interested party's. You see, for example, counsel's fees
on the
other side, and I suggest that a significant --
- MR JUSTICE MOSES: I do not have
the
other side's assessments.
- MISS MOOR: They were handed up, my Lord. If you have
the
defendant's schedule there you will see that Mr Linden's fees are recorded as
the
total
of
£4,000.
- MR JUSTICE MOSES: What were yours?
- MISS MOOR: Mine were £1,900, my Lord.
- MR JUSTICE MOSES: Very cheap.
- MISS MOOR: I would say reasonable perhaps, my Lord.
The
two points to take are no necessity to have two counsel and counsel's fees.
- MR LEWIS: My Lord, in terms
of
having two counsel, could I make this point. In matters such as this expedition is extremely important. It was crucial that this matter be brought
on
very quickly having made a decision to come and apply for judicial review and therefore to have two sets
of
counsel, being able to get
the
matter before
the
court quickly, was essential, and indeed even with
the
short time which elapsed, a matter
of
three weeks, and part
of
which was taken making
the
initial decision, complaints were being made as to
the
time taken, it was going to be relied
on
at one point as a reason for objecting and that was not in
the
end pursued. Having made a decision which required anxious consideration we then needed to move extremely quickly. Having junior counsel proceed with
the
bulk
of the
drafting enabled that to happen more quickly than otherwise --
- MR JUSTICE MOSES: It is very difficult, but I do think, one looks at it all,
the
total cost
of
counsel both appearing and drafting was some £12,000, was it not?
- MR LEWIS: Yes, my Lord.
- MR JUSTICE MOSES: It seems quite a lot. It is obviously more than
the
other sides because you have to set
the
whole thing up, but you did have
the
benefit
of
a leader who had been in it and therefore pretty much knew what was what so far as
the
structure was concerned.
The
main point was absolutely standard judicial review. You looked at a particular error
of
law and identified one sentence that scotched
the
case. I know it is easy to be wise after
the
event, but it is a very discrete point. They just went a bit too far. I am proposing to knock £6,000 off and you and Mr Bowers can then quarrel about it. Do you want to say anything more?
- MR LEWIS: No, my Lord.
- MR JUSTICE MOSES: It is very difficult, but I do think if one looks at counsel's fees as a whole, particularly having regard to
the
fact Mr Bowers had been in it before, acknowledging that it is always more expensive, as it were, to run
the
case than to respond to it, I still think it is too much. I am not going to say anything about whether it should be one or two counsel, it seems unnecessary. All I am going to say is I look at
the
total and say that a long low whistle emits from my lips judicially, which means "too much", so I shall knock that £12,000-odd down to £6,000-odd. So I shall knock £6,000 off
the
grand total making a total
of
£10,000-odd.
- MISS MOOR: I omitted to mention VAT. We say that ought not be included given
the BBC
, as I understand it, would be able to reclaim that in any event.
- MR JUSTICE MOSES: Counsel cannot. It is counsel's VAT, it is VAT
on
counsel's fees and
the BBC
has to pay counsel's VAT.
- MISS MOOR: But then reclaim
the
VAT proportion
of
it, that is how I understand that.
- MR JUSTICE MOSES: No, I do not understand
the
argument.
- MISS MOOR: Very well.
- MR JUSTICE MOSES: You will have to show me
the
VAT provisions and you will be paying for
the
costs
of arguing that as well.