Senior v Nesco Group

An appellate court should not re-try facts found by an Employment Tribunal. Intervention is justified only for an error of law or perversity. For a contract of employment to exist, the worker must provide work or skill for remuneration, submit to a sufficient degree of control, and satisfy the remaining contractual requirements. Mutuality of obligation and control are irreducible minimum requirements. In an employment-agency case, the agency may in principle be the employer, but the existence of employment depends on the contractual and factual relationship. A short assignment may make mutuality harder to establish. Where the tribunal was entitled to find that no contract of employment existed, and no error of law or perversity was shown, permission to appeal should be refused.

Mr Ian Senior applied for permission to appeal from the Employment Appeal Tribunal, presided over by His Honour Judge McMullen QC, which had dismissed his appeal from an Employment Tribunal sitting at Sheffield.

The Employment Tribunal held that it had no jurisdiction to hear his unfair-dismissal claim because he lacked the required qualifying service under section 108 of the Employment Rights Act 1996 and was not an employee of The Nesco Group. It also rejected his breach-of-contract claim because there was no contract of employment.

The central issue was whether the tribunals below had erred in law in finding that the working relationship between Mr Senior and the respondent employment agency did not constitute employment.

Permission to appeal refused. The Employment Tribunal was the tribunal of fact. The Court of Appeal was bound by previous decisions and could intervene only where the decision below involved an error of law or was perverse. An applicant could not use an appeal to re-argue factual questions.

1. The court applied the principles stated in Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 2 QB 497, as adopted and applied in Montgomery v Johnson Underwood Ltd [2001] IRLR 269. A contract of service requires the provision of work and skill for remuneration, a sufficient degree of control by the alleged employer, and contractual terms consistent with employment.
2. Mutuality of obligation and control are irreducible minimum requirements for a contract of employment. In an employment-agency relationship, the agency may in appropriate circumstances be the employer. However, where the agency exercised little or no control, employee status could not stand. Mutuality may also be more difficult to establish where the assignment is very short.
3. On the material before the tribunals, including the contractual documents and Inland Revenue material, the Employment Tribunal was entitled to conclude that Mr Senior was not an employee of the respondent. The Employment Appeal Tribunal was entitled to uphold that conclusion.
4. There was no real prospect that the Court of Appeal would reverse or impugn the decisions below. The application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): Permission to appeal refused.
• Employment Appeal Tribunal: Appeal from the Employment Tribunal dismissed on 22 March 2002.
• Employment Tribunal, Sheffield: Held that it lacked jurisdiction over the unfair-dismissal and breach-of-contract claims because Mr Senior was not an employee and lacked the required qualifying service.