Consistent Group Ltd. v Kalwak & Anor

Permission to appeal should be granted where the proposed grounds disclose a real, rather than fanciful, prospect of success. In an employment-status case, the adequacy of the tribunal’s reasons may be an arguable issue where it appears to have accepted one witness’s evidence without explaining why materially contrary evidence was rejected. That issue may need determination before conclusions can safely be drawn about whether contractual documents are a sham or where control lies. Findings about an obligation to work and an obligation to provide work may also affect the assessment of control in an agency-work arrangement.

Workers recruited and accommodated by Consistent Group Ltd and deployed to Welsh Country Foods brought Employment Tribunal claims concerning dismissal, notice pay and unlawful deductions. They contended primarily that they were employees of Consistent, alternatively that they were its workers or had relevant rights against Welsh Country Foods.

The Employment Tribunal found individual contracts of employment, treating the contractual documents as a sham and finding obligations to work and to provide work, together with agency control. The Employment Appeal Tribunal, presided over by Elias J, dismissed Consistent’s appeal. Consistent renewed its application for permission to appeal, relying principally on alleged inadequacy of reasons, failure to address contrary evidence and error concerning control.

1. Application granted. The court granted permission to appeal because the proposed appeal had a real, rather than merely fanciful, prospect of success. The grounds were to be amended and a concise new skeleton argument prepared.
2. The adequacy of the Employment Tribunal’s reasons was an arguable issue. The tribunal found that the workers were obliged to work when required, but did not mention evidence that they could accept or reject daily deployment without penalty, or documentary material said to support that position. It also accepted evidence concerning refusal of time off without explaining why contrary documentary evidence about holidays and days worked was rejected. The issue was advanced by reference to English v Emery Reinbold and Strick Limited [2002] EWCA Civ 605.
3. The alleged reasoning defect was material. The disputes about the obligation to work and the obligation to provide work required reasoned resolution before the sham issue, and potentially the control issue, could properly be determined. The tribunal had relied on the contract between Consistent and the end user in finding no obligation to provide work.
4. The control finding could therefore be challenged as flawed or legally unsustainable, because matters underpinning that finding were themselves affected by the disputed findings about work obligations. Lord Justice Longmore agreed with the grant of permission and with directions for fresh grounds and skeleton argument, observing that the excessive papers had obscured the real issues.

• Employment Tribunal: Found that the workers were employees of Consistent Group Ltd under individual contracts of employment.
• Employment Appeal Tribunal: Elias J dismissed Consistent’s appeal.
• Court of Appeal (Civil Division): Granted the renewed application for permission to appeal and directed amendment of the grounds and preparation of a new skeleton argument.