CAWDER GOLF CLUB Vs (1) GEORGE T STODDART (2)
MRS KATHLEEN STODDART

APPEARANCES

For the Appellants	Mr S A McCormack, Solicitor Of- Messrs McClure Naismith Solicitors 292 St Vincent Street GLASGOW G2 5TQ
For the Respondents	Mr R G Skinner, Advocate Instructed by- Messrs Brunton Miller Solicitors 22 Herbert Street GLASGOW G20 6NB

LORD JOHNSTON:

1. This is an appeal at the instance of the two applicants against a decision of the Employment Tribunal (Chairman sitting alone) that they had not been employed as employees by the respondents' golf club. The facts reveal that for almost 20 years the two applicants were respectively secretary/treasurer and assistant to the secretary/treasurer at the golf club in question. They were appointed by letter dated 29 January 1982 (A1). The employments were terminated on 30 September 1999 and the applications were made to the Employment Tribunal claiming inter alia breach of contract, unfair dismissal and/or redundancy.

2. The decision of the Employment Tribunal is in the following terms:-

"I am bound to say that I have found this issue to be narrowly balanced. In reaching my decision, I have taken account of the fact that John Halliday, the first applicant's predecessor as secretary/treasurer carried out that function as a partner of a firm of Glasgow accountants, who rendered fee notes to the respondents on a monthly basis for Mr Halliday's services. On no account could Mr Halliday have been said to have been an employee of the club. When the first applicant was appointed as also the second applicant, they were appointed on a similar basis namely that the first applicant's firm would render monthly invoices for the services provided by the two applicants. They were in very much the same relationship with the respondents as Mr Halliday had been before them. Both parties agreed at the outset that it was of mutual benefit to them that tax would be paid on a schedule D basis and that the applicants would not be liable for employee's national insurance contributions. This was a matter which came up again for consideration in 1997 and on the advice of his accountant, Mr Halliday, the first applicant decided that the status quo should remain rather than enter into full-time employment with the respondents. I accept that no doubt much of the work carried out by the two applicants was under the control of the respondents' club in the sense that in the case of the first applicant, he would have to attend meetings to take minutes when others called meetings. I accept, too, that the applicants did not have any financial stake in the club, that they did not provide their own equipment, and so on. These are simply some of the factors which a Tribunal has to have in mind in taking an overall balanced view of a relationship. I cannot help being swayed considerably in reaching my decision by the fact that from the outset, it was arranged that both applicants would be paid on the basis of fee notes rendered by the firm of which the first applicant was sole proprietor and that, if appropriate, VAT would be paid by the respondents. That arrangement was entered into because it suited both parties from the tax and national insurance position. The first applicant was given the opportunity of reviewing his status in 1997 but after advice, decided not to do so - again it suited him to retained self-employed tax status. On balance it is my view, that the applicants were not employed under a contract of employment with the respondents and in consequence they were not employees of the respondents within the meaning of Section 230 of the 1996 Act."

3. Mr McCormack, who appeared for the appellants, turning first to the evidence, listed a number of elements which he considered were indicative of an employment situation existing. They were respectively that regular payments albeit called an honararium were being made, holiday terms had to be agreed, there was a defined place of work and scope of work, there was control exercised by the club officials, sick pay was payable but sick time had to be notified and there was no extra pay for any additional hours worked. Against that however Mr McCormack accepted that payment was actually made upon an invoice issued by a firm, Stoddart Print, of which the applicants were members. They were taxed as self-employed persons under Schedule D and indeed regarded themselves as such and they required to be annually re-elected by the club.

4. He went on to submit that the Employment Tribunal had placed too much emphasis in its decision in the position of Mr Halliday, the person previously in post, who had in fact been a member of a firm and as such was clearly not employed by the respondents. It was also submitted that too much emphasis had been placed on the method of payment which was only one of the factors and should not be the overriding one.

5. Mr Skinner, in response, laid emphasis on the intention of the parties to create a self-employed position, the issue of VAT, the question of whether or not that consent to be employees in fact existed and dependence upon annual re-election all of which pointed against an employment/employee situation.

6. Both parties accepted that the issue was one of fact to be determined on a broad basis (Hall (Inspector of Taxes) v Lorimer [1992] ICR 739).

7. This Tribunal will only interfere in factual decisions of the lower Tribunal if it can be shown that factors were taken into account which had been left out of account or vice versa or that the Tribunal reached a perverse decision.

8. We have no hesitation in concluding in this case that the decision of the Tribunal is rationally based for reasons which can be supported. We do not consider that the Tribunal placed over-emphasis on the position of Mr Halliday since it was clear that the parties intended to continue the existing situation. Where persons intend to create a self-employed situation and the ingredients of such can be found, such as method of payment, potential exposure to VAT and a lack of consent to be an employee, it is very difficult for any Tribunal to conclude that the contrary to what the parties intended to achieve had resulted.

9. In any event, the factors relied upon by Mr Skinner seem to us to be wholly indicative of a self-employed rather than an employer and employee situation having been created.

10. In these circumstances we have no hesitation in concluding that the decision of the Employment Tribunal is not only supportable but correct. In these circumstances this appeal is dismissed.