Sattar v Speyhill Ltd & Anor

For a claim based on a transfer of an undertaking, whether the claimant was employed by the alleged transferee is an essential preliminary fact. If the Employment Tribunal permissibly finds that the parties entered a contract for services, rather than a contract of service, the transfer provisions do not assist the claimant.

An appeal court does not reassess witness credibility or the weight of evidence. A perversity appeal succeeds only where the tribunal reached a conclusion that no reasonable tribunal, properly appreciating the evidence and law, could have reached. Short reasons will suffice where they address the essential issue and disclose a conclusion open to the tribunal.

The claimant brought an unfair-dismissal claim against Speyhill Ltd, contending that his employment with Beco Scotland Ltd had transferred to Speyhill under regulation 4(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

At a pre-hearing review, the Employment Tribunal determined that he had worked for Speyhill on a self-employed basis. It therefore held that it lacked jurisdiction over the unfair-dismissal claim. The claimant appealed, arguing that the Tribunal had failed to address the transfer regulations and had perversely preferred the evidence of Speyhill’s representative.

The central issues were whether the Tribunal’s finding on employment status adequately resolved the transfer point and whether its credibility findings were perverse.

1. Appeal dismissed. The Employment Tribunal was entitled to find that, after Speyhill took over the running of the shop, the claimant had been offered and had worked under a self-employed arrangement. Its findings included an absence of control, personal-service requirement and mutuality of obligation. Those findings supported its conclusion that the arrangement was a contract for services rather than a contract of service.

2. Employment by the alleged transferee was an essential fact before regulation 4(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 could assist the claimant. The Employment Judge’s reasoning on employment status therefore addressed the necessary step in deciding whether the regulations applied. Although the reasons were short and could have been fuller, they covered the essentials and disclosed no error of law.

3. The challenge to the Tribunal’s preference for Ms Kahlon’s evidence was a challenge to evidential weight and credibility. The asserted inconsistencies, the absence of a P45, and the evidence about working arrangements in the trade did not establish irrationality. The Tribunal was entitled to assess their significance, particularly given the absence of payslips or P60s after the alleged transfer.

4. Applying the high perversity threshold stated in Yeboah v Crofton [2002] IRLR 634, the Appeal Tribunal held that the Employment Judge’s conclusion was open to him. It was immaterial whether the Appeal Tribunal might itself have reached a different factual conclusion.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s decision that the claimant was self-employed when working for Speyhill was upheld.
• Employment Tribunal: at a pre-hearing review, by a decision sealed on 21 February 2013, it held that it had no jurisdiction over the unfair-dismissal claim because the claimant was self-employed.