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Appeal No. UKEAT/0269/10/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 October 2010

Before

HIS HONOUR JUDGE PETER CLARK (SITTING ALONE)

DR E KUNCHARALINGAM (APPELLANT)

WORD BY WORD TRANSLATIONS LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
DR E KUNCHARALINGAM (The Appellant in Person)

For the Respondent
MR DAVID GRAY-JONES (of Counsel)

Instructed by:
Messrs Thomas Mansfield
Tokenhouse
11/12 Tokenhouse Yard
London
EC2R 7AS

JURISDICTIONAL POINTS – Worker, employee or neither

Costs

Employment Judge held that Claimant was neither an employee nor a limb (b) worker giving the Employment Tribunal jurisdiction to entertain his various claims. Decision upheld on appeal. This was not a contract for personal service; there was an unfettered right to send a substitute to complete translation jobs assigned to Claimant. No error by Employment Judge in his approach to costs ordered against Claimant.

1. This case has been proceeding in the London Central Employment Tribunal. The parties are Dr Kuncharalingam, Claimant and Word by Word Translation Ltd, the Respondent.

1. The dispute came before Employment Judge Edge, sitting alone, for a pre-hearing review in order to determine whether or not the Tribunal had jurisdiction to hear the Claimant's claims of unfair dismissal, age discrimination, unlawful deduction from wages and breach of contract. By a judgment dated 30 September 2009 that Judge found that the Tribunal did not have jurisdiction in relation to any of the Claimant's claims and therefore dismissed them, with an order for costs in the sum of £862.50. Full reasons for that judgment were given in writing on 10 November 2009.

1. Against that judgment, the Claimant appealed. His appeal was initially considered on the paper sift by His Honour Judge Serota QC who, for the reasons given in a letter to the parties dated 3 March 2010, formed the opinion that the appeal had no reasonable prospect of success and directed that no further action be taken under rule 3(7) of the EAT rules. Dissatisfied with that opinion the Claimant exercised his right to an oral hearing under rule 3(10). That hearing took place before His Honour Judge Hand QC on 2 June 2010. On that occasion the Claimant had the advantage of representation under the ELAAS pro bono scheme by Mr Sinclair Cramsie of counsel. At all other times Dr Kuncharalingam has represented himself.

1. Based on the submissions of counsel, Judge Hand was persuaded that this matter should proceed to a full hearing; he took that view not without some considerable hesitation, I see from paragraph 26 of his judgment. The matter now comes before me for full hearing and at the outset Dr Kuncharalingam very sensibly invited me to deal first with the question of personal service, a course to which I acceded, and I have heard submissions both from him and from Mr Gray-Jones for the Respondent on that issue.

1. The question of personal service arises in this case because the preliminary issues, whether or not the Claimant was an employee or a worker within the definition contained in the Employment Rights Act or an employee for the purpose of the Employment Equality Age Regulations 2006, all require an element of personal service. The Judge below made findings of fact at paragraph 4 of his Reasons. In particular, he refers to a document entitled "A Code of Ethics and a Code of Conduct" which was sent by the Respondent to the Claimant when he was first recruited as a Tamil interpreter. He had then retired as an anaesthetist from the National Health Service. Paragraph 2.4 of the Code provided:

"If an interpreter is unable to undertake an assignment that he/she has accepted, the principal [the Respondent] should be informed as soon as possible. If the interpreter is in a position to do so, he/she should assist in finding an appropriate interpreter to take his/her place. Interpreters should not hand over an assignment to another interpreter without the agreement of the principal."

1. Mr Gray-Jones submits that this document did not constitute the whole of the contract in writing between the parties and although no specific finding to that effect is made by the Employment Judge, it seems to me that that submission is plainly correct. In those circumstances, in accordance with the House of Lords approach in Carmichael v National Power [2000] IRLR 43, it was necessary for the Judge to look at the whole of the factual matrix in this case in order to discern the intention of the parties. He made these further findings of fact at paragraph 4(12) and (13); that in 2007 the Claimant personally carried out 37 assignments declined 4 and sent substitutes on 21 assignments although that should be reduced by 1 to 20 and that in 2008 he carried out 35 assignments, declined 6 and sent substitutes on 3 assignments.

1. Against those factual findings the Judge reached the following conclusions. First, at paragraph 11(4), that the Claimant had arranged substitutes over the years he had worked for the Respondent, it became a common practice and he had not informed the Respondent about such substitutions. The Judge accepted the evidence of Ms DeSousa called on behalf of the Respondent, supported by time sheets which she produced, that the Respondent was happy with such substitutions when they learnt about them after the event, provided the assignment was done and the client was happy. It has to be said that in this particular case the Judge formed an unfavourable view of the Claimant's credibility in distinction to the favourable view he formed of Ms DeSousa's evidence.

1. At paragraph 16(1) the Judge found that the Claimant had the power to delegate, that is, send a substitute; he could do it without telling the Respondent, where not at a prison or detention centre where identity was plainly important and would have to tell the Respondent for practical security reasons where they were involved. He did, on a number of occasions, arrange a substitute and not inform the Respondent before the event; this caused the Respondent no concern and then this finding; there was therefore no requirement for personal service. At that point in his judgment the Employment Judge drew on the judgment of Peter Gibson LJ in Express v Echo Publications Limited [1999] IRLR 367 for this proposition:

"Where a person who works for another is not required to perform his services personally, as a matter of law the relationship between the worker and the person for whom he works is not that of employer and employee, a right to provide a substitute is inherently inconsistent with the existence of a contract of employment. A contract of employment must necessarily contain an obligation on the part of the employee to provide his services personally. Without such, in a reducible minimum of obligation it cannot be said that there is a contract of employment."

1. This case was decided before the Court of Appeal judgment in Autoclenz v Belcher [2010] IRLR 70, however in that case at paragraph 10 Smith LJ said this:

"The starting point must be the statutory provision at section 230(3) ERA and the first question is whether, under the contractual arrangements, the individual has 'undertaken to 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 professional or business undertaking carried on by the individual'. Two separate issues arise. Is the individual contractually obliged to carry out the work or perform the services himself or does the contract permit him to provide someone else to perform them? If the individual is free to choose whether he will do the work himself or send someone else to do it, he is not under an obligation to do the work personally and will not be a limb (b) worker. (Nor will he be an employee or limb (a) worker because an obligation to perform work personally is also an essential requirement of a contract of employment.) But in addition to there being an obligation to perform the work personally, the work must not be done for the other party in the capacity of client or customer."

I need read no further. Finally, returning to the Judge's reasons, at paragraph 19 in connection with the claim for unlawful deduction from wages, he considered whether the Claimant was a worker under section 230(3) Employment Rights Act and said this:

"I have already concluded that the Claimant did not work under a contract of service. The next question is whether he undertook to do or perform personally any work or services as required by section 230(3)(b) ERA 96. It is plain from the Code of Ethics there was no requirement for the Claimant to do the work personally. In the Claimant's own words from the ET1 claim form it was common practice to arrange a substitute without telling the Respondent. The Respondent would only find out after the event. There were no repercussions from sending a substitute. The record shows that the Claimant organised a substitute on many occasions. This was not a limited right to substitute. It was an unfettered right. As such I have concluded that there was no requirement for the Claimant do to the work personally. As such he was not a 'worker' as defined."

1. Taking those various findings together, Mr Gray-Jones submits that this is a strong case in which it can be said that there is no requirement for personal service according to the intentions of the parties; judged by the whole of the factual matrix I agree with that submission. This is not a case of a limited right to send a substitute such as in McFarlane v Glasgow City Council [2001] IRLR 7, it was an unfettered right in practice.

1. In these circumstances whether one takes the more restrictive view expressed in the judgment of Peter Gibson LJ in Tanton or the more liberal view expressed by the Court of Appeal in Autoclenz, it seems to me on the facts that this conclusion that there was no personal service and therefore no jurisdiction to entertain any of these claims all of which depended on either an employee or worker status is un-impugnable. I have of course considered the judgment of Judge Hand at the rule 3(10) hearing, in particular on this aspect of the case at paragraphs 21 and 22; however I am unable to see, as did His Honour Judge Serota QC, any misdirection by the Employment Judge in his approach to his assessment of the facts in this case.

1. I should mention that Dr Kuncharalingam was anxious to draw my attention to one aspect in the evidence, at page 69 of the bundle before me, which is a letter from the Respondent to the Claimant dated 8 September 2008, towards the very end of the period of relationship between the parties, which appears to criticise him for sending a friend on an assignment which had been given to him without first informing the Respondent. That formed part of the evidence before the Judge and as Mr Gray-Jones points out, is referred to expressly at paragraph 23 of the Reasons. It was part of the evidence that was taken into account by the Judge in arriving at findings of fact which point ineluctably to the conclusion that this was not a contract for personal service. Consequently the Judge was right to hold that he had no jurisdiction in this case and to dismiss the claims.

1. I need say little about the costs order; it is dealt with at paragraph 28 of the Reasons. The Judge, as I have earlier indicated, took a dim view of the Claimant's allegations that documents produced by the Respondent were forgeries when he found that they were not and in those circumstances the limited costs order seems to me entirely justified. For these reasons I shall dismiss this appeal.