APPEARANCES
| For the Appellant |
MR FODDER
Appearing under the
Employment Law Appeal
Advice Scheme
and
MR BRUCE
(The Appellant in person) |
| |
|
MR RECORDER LANGSTAFF QC
- Given the hour, this judgment will be shorter than might otherwise have been the case. We hope, nonetheless, that we shall do justice to the matters which have been raised before us.
- This is a Preliminary Hearing in an appeal from an Employment Tribunal at Leeds whose Extended Reasons were promulgated on 18 September 2001. The central issue in a disability discrimination claim was whether or not the Appellant was an employee within the meaning of the Disability Discrimination Act 1995. That is defined by Section 68(1):
" 'employment' means, subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work …"
In essence, the central question here is whether or not it is arguable that, upon the evidence and material before it, the Tribunal were in error in holding as they did that the Appellant was not under such a contract.
- The Tribunal came to that conclusion for a number of reasons. It came to that conclusion having first of all read a volunteer's agreement which was accepted as the foundation of the relationship, even though the Appellant had not signed it. It also had evidence both from the Appellant and from the manager of the Citizens Advice Bureau at which he gave his service. The Tribunal examined that agreement at some length. It then concluded that, first of all, there were material distinctions between the case before it and an earlier decision of this Tribunal in Murray v Newham Citizens Advice Bureau [2001] ICR 708. Then the Tribunal decided that there was no legally binding agreement because there was no intention to create any legal relationship.
- Having concluded that, it then went on to examine what might be the position if it was wrong about that. In paragraph 12 it considered first whether the Appellant was an employee, that is, under a contract of employment, but then turned at paragraph 13 to determine whether or not he was an employee in the sense of being employed under a contract personally to do any work. The Tribunal said this:
"… the Tribunal then has to consider whether there would be (given some contractual arrangement) a contract to provide services personally. Here again, there has to be a legally binding agreement for the provision of those services. Although it is right to say that the applicant could not send anybody to do his volunteer work, nonetheless he was not obliged to attend personally to carry out such work at any time, as he accepted in his evidence. He acted entirely in the capacity of volunteer with no restrictions upon him or obligations upon him other than to perform as a volunteer to the standards expected by the fifth respondent having received training, if he so desired to proceed and continue as such a volunteer."
Is was on the basis of that finding, amongst others, and the basis that we have explained, that the Tribunal resolved the matter against the Appellant.
- We have considered the submissions of Mr Fodder, who appears under the ELAAS Scheme and for whose assistance we are grateful. We have heard from Mr Bruce himself in respect of two further grounds of appeal with which we shall deal. Mr Fodder urges upon us that the decision which the Tribunal reached upon the evidence before it, misconstrued the volunteer's agreement, that it, in effect, must have created legally binding relationships and that upon a proper analysis of it, taking the terms of it as a comprehensive whole and not in isolation, it was arguable that it imposed an obligation to do work. He invites us to consider that and to consider therefore whether the conclusion which the Tribunal reached was flawed.
- We think that if this case depended upon the accuracy of the Tribunal's approach up until it came to paragraph 13, we would be disposed to grant permission to appeal. It seems to us arguable that there was here an agreement so described which involved a quid pro quo on each side for a benefit conferred by the other. We consider that the context was such that it is difficult to see why such an agreement solemnly entered into should not be intended to create legally relations. We are fortified in that respect by the decision in Murray. We find it difficult to conclude that the Tribunal could have had Murray fully in mind given the last sentences at paragraph 10.
- Matters do not however rest there. The question really is whether or not any Appeal Tribunal might think that either in consequence of those flaws in the Tribunal's reasoning, if they are flaws, the decision as a whole could not stand. That means that there must be some basis upon which this Tribunal could set aside the effect of paragraph 13. The central part of paragraph 13 is the finding of the Tribunal that there was no obligation upon the Appellant to do any work. It seems to us that the only way in which the expression 'contract personally to do any work' can be construed is that it must be a contract which obliges the person concerned to provide some work. An expectation that he will do so, upon which other mutual rights and benefits are founded, is insufficient. Nor, to take an example, would a contract which provided for the payment and reimbursement of expenses if work is done be a contract to do work. It would be a contract, the benefits of which were consequential upon work being done, but it would not have as its focus any obligation to do the work itself. Accordingly, we consider that the primary focus of such a contract must be, and could only be, and could not arguably be anything other than, an obligation to do work.
- On the material before the Tribunal, in the volunteer's agreement, the word 'obligation' does not appear, but the word 'commitment' does. The agreement recognises what it describes as the special nature of the commitment volunteers give to the bureau. It talks about an agreed commitment. It deals with matters of confidentiality, impartiality and that in respect of such as equal opportunities anyone who provides time for the CAB has to agree to abide by certain principles. It envisages that there is a session at some stage, as agreed at page A2. In respect of training, it expects, though does not at that stage oblige, a minimum of six training sessions, but then describes it as a minimum requirement. It talks about the monitoring of performance, of the attendance at bureau meetings and consultation and asks, though does not require, the giving of notice if a person leaves the bureau so that the rota can be rearranged. It therefore envisages the existence of a rota, presumably by which work is organised. What is unfortunate is that it does not set out the arrangements under which the rota is to be run, so that it leaves unanswered, in essence, whether the commitment referred to is an obligation to provide work in the sense that the expression 'contract to do work' could envisage.
- This involves the Tribunal essentially in issues, therefore, of seeing how this agreement operated in practice, because one could not tell, it seems to us, from the agreement itself that there was necessarily any obligation to do work. Indeed, it appears that that was the view taken by Mr Bruce himself, who records that when the view is attributed to him in the judgment by the Employment Tribunal that there was no mutuality of obligation in the sense of no obligation to provide work, and no obligation to do it, he confirmed it. He says this was in relation to the agreement and not in respect of the work which he was doing. Given that the Tribunal could therefore permissibly construe the agreement, in our view, in a way which was consistent with the decision which it reached, there is nothing in the agreement which necessarily obliges us, or could entitle any Employment Appeal Tribunal, to conclude that the Employment Tribunal was wrong in the conclusion it expressed in paragraph 13.
- Matters do not stop there because the central sentence in paragraph 13 is where the Tribunal say, as a finding of fact:
"… nonetheless he was not obliged to attend personally to carry out such work at any time, as he accepted in his evidence."
We cannot see, whatever sympathy we have with Mr Bruce, and however much we might wish to endorse his general points that the complaint was about disability discrimination, and it is a matter of important social policy that any such discrimination wherever it exists should be identified and eliminated, we cannot say that any Employment Appeal Tribunal could legitimately come to the conclusion that the Tribunal were here in error. One only has to remind oneself, for instance, of the way in which the House of Lords in the case of Carmichael v National Power looked at the way in which written agreements involving mutual obligations did not create an obligation to work or to provide work by reference to the general facts which surrounded those contracts, and indeed, expressions of opinion which were given in evidence before the Tribunal.
- Accordingly, we cannot see that on that basis there is a ground of appeal. Nor does there seem to us to be any fault in the Tribunal's distinguishing the facts of the decision in Murray v Newham. That was a case which came to no conclusion as to whether there was or was not on its facts an obligation to work, and, if necessary, an obligation to provide work in respect of a contract to do work personally. It left that open for further investigation by the Tribunal. It was a case in which the essential reasoning, so far as material to the present case, was that the Tribunal were in error in focusing upon the absence of pay in return for work rather than upon the statutory definition, and in determining there was no contract rather than determining that there was a contract then proceeding to ask what nature of contract it was. Here, although the Tribunal somewhat dubiously determined there was no contract, it did then go on to say what sort of contract it would be if there was one, and concluded that it would not be a contract to do work personally.
- There remain the two matters which Mr Bruce himself addressed us about. The first of those was bias. This he has set out in some detail in his grounds of appeal and skeleton argument (which largely echoes the grounds of appeal) and upon which he has deposed. In essence, he found it surprising that the Tribunal took a number of steps. These are summarised, in particular, at paragraph 5.15 in his grounds of appeal, and in his skeleton argument. He makes reference to the Tribunal going on frolics of its own, importing matters into its decision which relied upon evidence which it had not heard and could only therefore rely upon in bias against him and a determination to reach a view contrary to that which he would have wished, in particular noting what is said in the last two sentences of paragraph 10 of the Tribunal's reasoning.
- We see as essential to any issue of bias that either there should be a failure to hear both sides of a case, or that there should be somebody who is judging a case in which he has a personal interest, pecuniary or otherwise. This is not the latter case. The nearest it gets to the former is that the Tribunal had a closed mind. There is, we should summarise, insufficient in anything which Mr Bruce has identified to suggest that it had a closed mind at any stage before the stage at which it began to formulate its decisions and make those adverse to Mr Bruce. At that stage, in one sense, it was "biased"; but it is entirely legitimate that it should determine a case for one party or the other and in that sense show a "bias" in favour of the successful party. Indeed, that is its function. The law of bias looks not to individual oddities that may be separately identified in the practice or procedure of a Tribunal but looks for some evidence that might persuade the reasonably objective outsider that there was here a risk that the Tribunal had closed its mind, or was impermissibly taking against one side. There is nothing here that meets that test.
- Finally, we have to consider whether or not, in a number of specific instances, the Tribunal drew conclusions which it should not have done or reached a conclusion which was against the weight of the evidence. We hope we deal with this sufficiently by indicating that we have some sympathy with some of the points which have been made, as we have perhaps already indicated, but on analysis we do not see that they impact upon the factual evidential and documentary basis which lies beneath paragraph 13. Therefore, whatever views another Tribunal may have come to on the same or similar facts, we cannot say, nor could any Tribunal say, that it was arguable that this Tribunal had, in that paragraph, made an error of law.
- For those reasons, having reached that conclusion, we have an obligation to dismiss the appeal at this stage, and do so.
