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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Field Emission Ltd v. Payne [2000] UKEAT 354_00_1107 (11 July 2000) URL: https://www.bailii.org/uk/cases/UKEAT/2000/354_00_1107.html Cite as: [2000] UKEAT 354_00_1107, [2000] UKEAT 354__1107 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE KEENE
LORD DAVIES OF COITY CBE
MR T C THOMAS CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
INTERLOCUTORY
For the Appellants | MR P M McGRATH (of Counsel) Messrs Penningtons Solicitors Phoenix House 9 London Road Newbury Berkshire RG14 1DH |
For the Respondent | MR P DOUGHTY (of Counsel) Messrs Lamb Brooks Solicitors Victoria House 39 Winchester Street Basingstoke Hampshire RG21 7EQ |
MR JUSTICE KEENE: This is an appeal against the decision of the Chairman of an Employment Tribunal sitting at Reading on a preliminary hearing to determine whether the respondent had been an employee of the appellant and so able to pursue a claim of unfair dismissal.
"This contract for services may be terminated by either party on giving thirty days notice in writing."
"16. The issue before this Tribunal is whether the Applicant was an employee to entitle him to present a claim of unfair dismissal. I am satisfied that this was not an issue that was litigated before the learned District Judge or indeed upon which he made a finding. The live issue before the County Court was whether the Applicant's contract had been breached and had nothing to do with the Applicant's status, whether as an employee or a provider of services pursuant to a contract for such purpose. I agree with the Applicant's Counsel's contention that in so far as Judge Mildred made reference to a contract for services he was merely reciting the particulars of claim as a preamble towards his judgement on whether there had been a breach of contract. I also accept the Applicant's Counsel's contention that the Barber and Henderson cases are not relevant to the facts of this case.
17. I reject the contention of the Respondent's Counsel in paragraph 36 that in so far as the Applicant had elected to proceed on a claim in the County Court for a contract for services he is estopped from now pursuing a claim in respect of a contract of service on the Employment Tribunal. The Originating Application highlights his belief that the true nature of his relationship was a contract of service and that he sought a determination by the Tribunal on that aspect. The Applicant prudently lodged his claim to protect himself from breaching the three month time limit."
In consequence, the Chairman rejected the present appellant's arguments on these issues.
"Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue."
"In the event the appeal was not heard. It was dismissed by consent. The plaintiff on advice threw in his hand."
That was the essence of the admission being referred to in that decision. Now of course where a concession of such importance is made, leading directly to a judgment by consent, that is as efficacious for the purposes of issue estoppel as would be a court's determination of the issue, were it still in dispute. The case is no authority for the proposition that any matter, which is not in issue on the pleadings in the earlier proceedings, will automatically give rise to an issue estoppel.
"That doctrine, so far as it effects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him."
"The decision in Khan v Golechha International Ltd [1980] 1 WLR 1482 makes it clear that an order dismissing proceedings is capable of giving rise to issue estoppel even though the court making such order has not heard argument or evidence directed to the merits. … If a party puts forward a positive case, as the basis of asking the court to make the order which that party seeks, and then at trial declines to proceed and accepts that the claim must be dismissed, then that party must, in our view, save in exceptional circumstances, lose the right to raise again that case against the other party to those proceedings."
"22. However, matters in the relationship evolved so that the Applicant's involvement with the Respondent became significantly more than had been originally envisaged. It had of course been suggested to the Applicant that he keep up a reasonable proportion of private clients so that his self-employed status should not come into question."
The Chairman then went on to deal with certain factors, which persuaded him, that the status of the respondent was that of an employee. Amongst other things, he referred to the respondent's time sheets for the period from January to June 1998. Mr McGrath points out that that is the period immediately before the effective date of termination of the arrangements, to use a neutral term, between the two parties. The effective date of termination was 22nd July 1998. So it is submitted that there was a failure on the part of the Chairman to determine whether the respondent had the necessary qualifying service of one year before the effective date of termination so that he could pursue a claim for unfair dismissal.