O'KELLY & ORS v TRUSTHOUSE FORTE PLC (1983)

CA (Sir John Donaldson, Ackner LJ, Fox LJ) 20/7/83

EMPLOYMENT - CIVIL PROCEDURE - CONTRACTS

CASUAL STAFF : CONTRACT OF SERVICE : CONTRACT FOR SERVICES : APPEAL : EAT

The EAT had been wrong to usurp the function of an industrial tribunal enquiring into the question of whether a person was an employee or an independent contractor where no error of law was disclosed by its decision.

An appeal by a respondent against a decision of the EAT who overturned the decision of an industrial tribunal in finding that it employed casual banqueting staff under contracts of employment and not a contract for services: and a cross-appeal by the applicants who contended that there was a continuing contractual obligation on the part of the company to offer work as and when it was available and for the applicants to make themselves available for such work.

Part of the appellant's business was to hire out rooms for private functions for which they provided catering and other services.

Due to the fluctuating and seasonal nature of such business most of the staff were casual.

The applicants were those casuals could be relied on more regularly than others to provide their services.

They were known as 'regulars' and their names maintained on a separate list so they had the assurance of preference in the allocation of work.

Due to the extent that some of the applicants made their services available they worked longer hours than the permanent staff and had no other regular employment.

In March 1983 the applicants received a letter from the respondent stating that they were unlikely to be needed anymore and they complained that their dismissal was unfair by virtue of s.58 Employment Rights (Consolidation) Act 1978 ("the Act").

The preliminary question for determination was whether the applicants were 'employees' under a 'contract of employment' within s.153 of the Act or independent contractors ("the question").



HELD:(1) The tribunal determined the nature of the contractual relationship between the parties on the facts and not by the description that the parties gave to their relationship.

It did this by looking at the nature of the engagement resulting from the terms (whether express or implied) of their mutual agreement.

(2) The question was one of law but the answer involved questions of degree and fact which it was for the tribunal to determine.

(3) The tribunal categorised those factors it found to be 'consistent', 'not inconsistent' and 'inconsistent' with a contract of employment, and concluded that when the parties embarked upon their engagement pursuant to the known custom and practice of the industry, it was indicative of their intention not to create an overall contract of employment.

(4) The EAT was not entitled to interfere with the decision unless the tribunal had misdirected itself in law or its decision was one which no tribunal , properly directing itself on the relevant facts, could have reached (see Edwards v Bairstow (1955) 3 All ER 48).

(5) The EAT had no jurisdiction to consider any question of mixed fact and law until it had extracted a question of pure law; and it had been wrong to assume jurisdiction on the basis that the question was one of law.

(6) It was impossible to say that no reasonable tribunal could have reached the same conclusion that the tribunal did.

Appeal allowed.

Cross-appeal dismissed.


Alexander Irvine QC and Timothy Charlton instructed by Linklaters & Paines for the appellant. Stephen Sedley QC instructed by Tess Gill for the respondents.

(1983) 3 WLR 605 : (1983) 3 All ER 456 : (1983) ICR 728
Document No. AC1748873

 

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