THE INDUSTRIAL TRIBUNALS

CASE REF:  1497/07

CLAIMANT:			Jason Matthew Andrew Vine

RESPONDENT:		Hastings Hotels Group

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant was not an employee as defined by Article 3 of the Employment Rights (Northern Ireland) Order 1996 and that he was not a worker as defined by Regulation 2 of the Working Time Regulations (Northern Ireland) 1998.  Therefore the claim of breach of contract in respect of notice pay under the Industrial Tribunals Extension of Jurisdiction Order 1994, the claim in respect of unpaid annual leave under the Working Time Regulations (Northern Ireland) 1998 and the reference in relation to a written statement of terms and conditions of employment under Article 43 of the 1996 Order are dismissed for want of jurisdiction.

Constitution of Tribunal:
Chairman (Sitting Alone):	Mr N Kelly

Appearances:
The claimant was represented by his father.
The respondent was represented by Mr Thomas Anderson of O’Reilly Stewart, Solicitors.

ISSUE
(1)	This was a pre-hearing review by a chairman sitting alone under Rule 18(2)(a) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 to determine the following preliminary issue as notified to the parties;

	“Whether the claimant is an employee/worker in relation to the claims for notice pay, right to paid annual leave and part-time working”.

(2)	No claim has been made in this case relating to part-time working.  Claims have been made in respect of unpaid notice pay, unpaid holiday pay and in relation to the lack of a written statement of terms and conditions of employment.  The issue was therefore amended to read;

		“(a)	Whether the claimant was an employee within the meaning of the Industrial Tribunals Extension of Jurisdiction Order 1994 for the purposes of a breach of contract claim”.

		(b)	Whether the claimant was an employee as defined by Article 3 of the Employment Rights (Northern Ireland) Order 1996 for the purposes of a reference under Article 43 of that Order.  

		(c)	Whether the claimant was a worker within the meaning of Regulation 2(2) of the Working Time Regulations (Northern Ireland) 1998 for the purposes of a claim under Regulations 13 and 14 of those Regulations”.

(3)	Mr Anderson on behalf of the respondent argued that the claimant was neither an employee or a worker because the arrangement between the claimant and respondent provided for no mutuality of obligation.  The claimant had been a casual worker and Mr Anderson stated that he had been under no obligation to accept any work offered to him and the respondent had not been obliged to offer the claimant any work.  Mr Vine argued that his son as a casual worker was entitled to the same right to holiday pay, notice pay and a written statement of terms and conditions as anyone else.  

RELEVANT FACTS

(4)	In or around July 2005, the claimant was told by a friend that the Cultra Inn, which was operated by the respondent, was “looking for people”.  The claimant contacted the Cultra Inn and was told that he would be placed on the rota for casual kitchen porters.  He started work shortly thereafter and eventually ceased work on 27 April 2007.

(5)	The terms of the arrangement between the claimant and the respondent were not put in writing at any stage.

(6)	The claimant stated at paragraph 6.3 of the claim form that he had to work 21.01 hours each week.  That figure was not reflected in his oral evidence given during the hearing.  That evidence was that he “mainly worked” Mondays and Wednesdays and “usually” also worked on Sundays.  The shifts on Mondays and Wednesdays lasted for five hours and on Sundays lasted for eight hours.  The payslips attached by the claimant to his claim form did not show the number of hours worked but did of course show the gross pay.  The figure for gross pay fluctuated substantially from week to week.  It ranged from £50 at the lowest to £231.40 at the highest in respect of those weeks for which a payslip was produced.  I conclude therefore that the claimant had no settled shift pattern and further that there was nothing in the arrangements which produced even a degree of regularity in his shift pattern.  I therefore conclude that his evidence in this respect was incorrect.

(7)	There were several gaps in the claimant’s pay record as evidenced by the payslips which he produced.  No holiday pay, sick pay or retainer was paid in respect of these gaps.  

(8)	The rota for casual kitchen porters was fixed one week in advance by the Head Chef.  The claimant when asked before the tribunal what would have happened if he had refused to work the hours which were offered to him on the rota in any week, stated “It never really occurred to me to be honest.  I was always available to work.  If other kitchen porters didn’t weigh in [as rostered] he would have phoned me.  I would have said no to that sometimes”.

(9)	If a casual kitchen porter was sick or otherwise unable to work the hours as rostered for any week, he was just taken off that week’s roster and asked when he would be back.  

(10)	The payslips issued to the claimant identified him as a casual and referred to “casual pay”.

(11)	There was no disciplinary process for casual kitchen porters.  If they didn’t turn up for work without a good reason or if their work was unsatisfactory they were not given any further shifts.

(12)	The respondent produced a schedule of hours allegedly worked by the claimant and this was put to the claimant for the first time during cross-examination.  While the claimant did not directly dispute the accuracy of the document, it was not agreed by the claimant as representing an entirely accurate picture.  Furthermore, the respondent failed to call any witnesses and therefore the schedule was not proved.  I do not place any reliance on that particular document.

(13)	The claimant and other casual kitchen porters performed their work under the direction and control of the respondent.  They were not required to provide any equipment or tools and undertook no financial risk whatsoever in relation to this arrangement.  Casual kitchen porters did not receive sick pay or holiday pay.

(14)	There was no requirement to give notice on either side to terminate the engagement.

RELEVANT LAW

(15)	Notice pay cannot be the subject of a claim of unauthorised deductions under Part IV of the 1996 Order – Delaney -v- Staples [1992] IRLR 191.  Such a claim has to be made under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.  It can only be made by an employee.  The definition of “employee” is that which appears in the 1996 Order.  

(16)	A reference to a tribunal under Article 43 of the 1996 Order in respect of a written statement of terms and conditions of employment can only be made by an employee as defined by that Order.  

(17)	Article 3(1) of the 1996 Order states;

		“(1)	In this Order, “employee” means an individual who was entered into or works under (or, where the employment has ceased, worked under) a contract of employment”.

(18)	A claim in respect of unpaid holiday pay can only be made under the Working Time Regulations (Northern Ireland) 1998 by a worker as defined by Regulation 2 of those Regulations.

(19)	Regulation 2 states;

	“Worker” means an individual who has entered into or works under (or where the employment has ceased, worked under) – 

			(a)	a contract of employment; or

	(b)	any other contract, whether express or implied and (if it is express) whether oral or in writing, 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.

(20)	The tests for determining whether an individual is an employee for the purposes of the 1996 Order are those set out in Ready Mix Concrete (South East Limited) -v- The Minister of Pensions and National Insurance (1968) 2QB497 where the court stated that “a contract of service exists if these three conditions are fulfilled;

		(i)	The servant agrees that, in consideration of a wage or a remuneration, he will provide his own work and skill in the performance of some service for his master.

	(ii)	He agrees, expressly or impliedly, that in the performance of that service he will be subject to the others control to a sufficient degree to make that other master.

		(iii)	The other provisions of the contract are consistent with it being a contract of service”.

The first condition can be referred to as mutuality of obligation and the second condition as the control test.

(21)	In Young & Woods Limited -v- West [1980] IRLR 2001, the Court of Appeal stated “it is by now well settled that the label which the parties choose to use to describe their relationship cannot alter or decide their true relationship; but, in deciding what that relationship is, the expression by them of their true intention is relevant, but not conclusive.  Its importance may vary according to the facts of the case”.

(22)	In Hall (HM Inspector of Taxes) -v- Lorimer [1994] IRLR 171, the Court of Appeal stated; “the object of the exercise is to paint a picture from the accumulation of detail.  The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole.  It is a matter of evaluation of the overall effect of the detail which is not necessarily the same as the sum total of the individual details.  Not all details are of equal weight or importance in any given situation.  The details may also vary in importance from one situation to another”.

(23)	In relation to the definition of “worker” the EAT held in James -v- Redcats (Brands) Limited [2007] IRLR 296 that “not all those who might properly be described as self-employed are engaged in a business undertaking.  The requirement to distinguish between employees, workers and those engaged in a business undertaking of their own demands a more sophisticated analysis than in some of the earlier cases, which loosely described all non-employees as being in business on their own account.  What the courts must try to determine is whether the essence of the relationship is that of a worker or somebody who is employed in a business undertaking, albeit in a small way.  Some assistance can be gleaned from cases which have analysed the definition of “employment” in the discrimination legislation and which have asked whether the dominant purpose of the contractual arrangement is the provision of personal services or whether that is an ancillary or incidental feature.  The dominant purpose test is really an attempt to identify the essential nature of the contract.  Is the obligation for personal service the dominant feature?  Is the contract in essence to be located in the employment field or is it in essence a contract between two independent business undertakings?  The test has the effect of excluding those found to be in business on their own account.  The definition of “worker” in the National Minimum Wage Act and other recent statutes can be similarly analysed”.

DECISION

(24)	There is no written contract or other agreement between the respondent and the claimant in this case.  Therefore I have to determine the issues before me on the basis of the evidence, such as it was in the absence of any witnesses called by the respondent.  It is, in my view, clear that there was no settled or regular shift pattern as alleged by the claimant in his claim form and in his oral evidence.  The claimant also suggested that he had been told on one occasion that he was expected to work at least two shifts per week otherwise “it would not be worth his while turning up”.  I do not accept that evidence either.  The gross pay figures disclosed in the payslips furnished by the claimant do not reflect any regularity in payments which could support such a minimum amount of work per week.  Furthermore there appear to be substantial gaps in the work record.  Those factors tend to support the case made by the respondent that the claimant was simply a member of a roster of casual kitchen porters who were not obliged to work any particular hours, or any hours at all and who were not entitled to be offered any work if the respondent choose not to do so.  Other factors which support that conclusion are the lack of any sick pay arrangements or any disciplinary arrangements and the fact that unsatisfactory individuals or individuals who did not turn up for shifts they had accepted were simply removed from the roster.  Another supporting factor is the clear reference on the payslips to “casual” and “casual pay”.  While as indicated above, the description accorded to the arrangement by the parties is not conclusive, it is a relevant factor.  There are some factors which would point towards an employment relationship ie the lack of any element of financial risk on the part of the individual, the degree of supervision and control exercised by the respondent during working hours, the lack of any requirement to furnish tools or equipment etc but I conclude that the claimant was not an employee for the purposes of the 1996 Order because there was no mutuality of obligation. I now turn to the question of whether the claimant was a “worker.”  

(25)	The phrase “mutuality of obligation” does not appear anywhere in the relevant legislation.  It is simply a convenient shorthand for an essential part of any contract i.e. that each party to a contract has obligations to the other. However mutuality of obligation has to be considered differently when looking at the definition of employee and the definition of worker.  The EAT held in Cotswold Developments Construction Ltd –v- Williams [2006] IRLR 181 at paragraph 49:

	“We do, however, accept that when considering a statutory definition such as that of “worker”, what matters are the words of the statute.  They focus not upon any obligation owed by the employer (save sufficient to ensure that there is a contract between the “employer” and the “worker”) but upon the nature of the obligation resting upon the worker”.

	At paragraph 50 the EAT said:

	“What is plain is that for an individual to be a “worker”, he must be (a) subject to a contract (b) whereby he undertakes to perform personally c) for someone who is not a client or customer of a profession or business of his.”

(26)	The respondent in the present case is arguing that the claimant was engaged by it on a succession of separate contracts of short duration and that there was no overriding contract linking those short and separate contracts.  Paraphrasing the questions remitted by the EAT in Cotswold to the employment tribunal, the questions for me are:-

(a)	Was there one contract between the claimant and the respondent or a succession of shorter and unconnected assignments?

(b)	If there was one contract, it is the natural inference from the facts that the claimant agreed to undertake some minimum, or at least some reasonable amount of work for the respondent in return for being given that work and pay?

(c)	If the claimant had so agreed, was there a sufficient degree of control by the respondent to make it a contract of employment?

(d)	If there wasn’t sufficient control and therefore it wasn’t a contact of employment was the claimant obliged to do some minimum (or reasonable) amount of work personally?  I.e. was he a worker?

(27)	I have concluded, focussing on the nature of any obligation placed on the claimant as required by the statutory definition, that the claimant was not obliged to accept work offered to him by the respondent.  There was therefore not one contract but a series of unconnected short contracts and the answer to the question at 26(a) above is such that I do not need to consider the questions at 26(b) to (d).  There was no contract which could have given rise to any entitlement to holiday pay under the Working Time Regulations.

(28)	I therefore dismiss the claim for breach of contract in respect of notice pay, the claim for unpaid holiday leave and the reference in respect of written terms and conditions of employment.

Chairman:

Date and place of hearing:	16 November 2007, Belfast	

Date decision recorded in register and issued to parties: