Appeal No. UKEAT/00926/03RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 May 2004

Before
HIS HONOUR JUDGE PETER CLARK
MS J DRAKE
MR J HOUGHAM CBE

M D MILLER	APPELLANT

SECRETARY OF STATE FOR HOME AFFAIRS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G WONG
(of Counsel)
Instructed by:
Messrs Cobbetts
Solicitors
Ship Canal House
King Street
Manchester M2 4WB

	
For the Respondents

	MR A SERR
(of Counsel)
Instructed by:
The Treasury Solicitor
Queen Anne’s Chambers
28 Broadway
London SW1H 9JS	

SUMMARY

Visiting Quaker Minister at H M Prison.  Absence of sufficient control.  Not an employee.
Appeal dismissed.
(No Order or cross-appeal challenging finding of contract despite (?) no mutuality of obligations.

HIS HONOUR JUDGE PETER CLARK:

1.	This is an appeal of the Applicant before the Manchester Employment Tribunal against that Tribunal’s decision on the hearing of a preliminary issue that she was not an employee of the Respondent Secretary of State for the purposes of bringing a complaint of unfair dismissal.  That Decision was promulgated with Extended Reasons on 9 September 2003.  There is also a cross-appeal by the respondent.

2.	The Facts
The different spiritual needs of inmates of many faiths must be provided for by the Prison Service.  This case concerns Wymott Prison, near Leyland, Lancashire, at which there was a full-time Anglican Chaplain, treated as an employee by the Respondent who has responsibility for the Prison Service.  In 1995 the visiting Quaker Minister died and the Prison required a replacement.  The Applicant was put forward as a candidate by the Hardshaw West Monthly Meeting of the Society of Friends and was appointed on the basic terms contained in a letter, undated, but sent to her in September 1995.  That letter wrote:-

“Dear Mrs Miller

I am pleased to inform you that the nomination has been accepted for you to be visiting Quaker Minister to this establishment with effect from (date left blank).  You will be paid the rate of £9.34 for each hour that you attend.  Enclosed is a copy of “Notes for the Guidance of Visiting Ministers” which summarises the Statutory Prison Rules and other regulations which must be observed.  

You are reminded that you are at all times subject to the Official Secrets Act 1989, this means that you will be required to exercise care in the use of information which you acquire in the course of your official duties and to protect information which is held in confidence.  

If you are willing to accept employment on the basis of the terms contained or referred to in this letter, will you please sign and date the enclosed copy and return it to this office in the prepaid envelope enclosed.  The original should be retained for your own information.”

3.	The Tribunal found that her hours of attendance at the prison were as agreed with the full-time Chaplain.  The Applicant attended regularly at the prison and claimed payment for a number of hours per month, together with her expenses, by completing a form which was countersigned by the Chaplain and then paid.  Basic rate tax was deducted, certainly in the later years of her appointment.

4.	The Respondent could not direct her in the way in which she carried out her pastoral spiritual work.  She arranged services and administered to inmates, not exclusively Quakers, suffering emotional stress.  She attended team meetings of the Chaplaincy team.  She organised and acted as organiser of and facilitator on the Alternatives to Violence Programme for inmates. She sat on a number of prison committees together with employees of the Prison Service, representatives from the Probation Service and other agencies and voluntary helpers.

5.	Towards the end of her tenure, a vacancy for a part-time Chaplain arose.  She covered some of these duties, including visiting prisoners in the segregation unit and on suicide watch.  She also interviewed new entrants to the prison and provided spiritual assistance, duties which fell on the Anglican Chaplain, under the terms of the Prison Act 1952.

6.	In December 2002 the Applicant saw Governor Jarvis to inform him that she had too much to do.  It seems that there was some reduction in her workload, particularly, in relation to organising the Alternatives to Violence Programme, although payment remained at the same level.  It seems that she had been doing more work than she had received payment for in the past.

7.	During her tenure she did not receive holiday pay or sick pay, nor was she a member of the Respondent’s pension scheme, whereas the full-time Chaplain was subject to regular appraisals by the Governor, had targets set for her and was subject to the disciplinary and grievance procedures operated by the Respondent, the Applicant was not.

8.	Following summary termination of her appointment in February 2003, the Applicant presented her complaint of unfair dismissal to the Employment Tribunal.

9.	The Law
The question before the Tribunal was whether the Applicant was employed by the Respondent under a contract of service within the meaning of section 230 of the Employment Rights Act 1996.  The distinction between a contract of service and a contract for services has been the subject of much judicial consideration starting with the classic statement of the law by Mr Justice McKenna in the Ready Mixed Concrete case [1968] 2QB 497/515.

10.	The first issue is whether a contract exists at all.  In Diocese of Southwark -v- Coker [1998] ICR 140 the Court of Appeal held that there was no intention on the part of the Church of England and an Assistant Curate, Dr Coker, to enter into legal relations, thus, there was no contract between the parties in that case and therefore no contract of service.   However, a contractual employment relationship may exist between an ordained priest and an organisation.  Lord Justice Staughton in that case (page 150) gave the example of a priest being employed by a school or airport authority, to which we would add the example of the full-time Anglican Chaplain at Wymott Prison in the present case.

11.	In order for there to be a contract, there must also be mutuality of obligation between the parties and a contract of service requires an obligation to perform personal service.  A sufficient element of control by the employer and the provisions of the contract must be consistent with its being a contract of service.

12.	The Tribunal Decision
The Tribunal concluded:-

1). That on balance (probably) these parties entered into a contract.  That part of their findings forms the subject of the Respondent’s cross-appeal.

2)  At paragraph 14 of their Reasons they said:

“There was no enforceable obligation on the applicant in our view to any given thing.”

3).	The necessary degree of control was absent in this relationship.  Unlike the full-time chaplain the Applicant was not subject to the Respondent’s disciplinary and or grievance procedure, she was not subject to targets and appraisal by the Government.

4).	The absence of entitlement to holiday pay and sick pay was inconsistent with the contract of service and the tax position was consistent with her being an office-holder and not an employee.  She was not an employee within the meaning of section 230.

13.	The Appeal
Mr Wong accepts, we think correctly, on the present state of the authorities, see particularly Montgomery v Johnson Underwood Ltd [2001] IRLR 269 paragraph 46, per Lord Justice Longmore, that the requirement of control on the part of the employer is one of the irreducible minima of a contract of service, thus, in order to succeed in this appeal, he must first persuade us that this Tribunal’s clear conclusion, at reasons paragraph 15, seen in the context of their overall findings of fact, that there was here insufficient control of the Applicant’s work by the Respondent to amount to an employment relationship, is unsustainable in law.

14.	On this aspect of the case, Mr Wong submits that the Tribunal failed to take into account the terms of the offer letter set out earlier in this judgment, which was an offer of employment subject to detailed rules of conduct to be observed by the Applicant and to be found in the Guidance Notes, Prison Rules and other regulations referred to in that letter.  Further, no finding was made by the Tribunal as to the degree of control exercised by the Respondent over the Applicant in her work on committees and on the programme which she organised and facilitated, for which she was remunerated.  Alternatively, the Tribunal’s conclusion on this issue was perverse, or, at any rate, the Tribunal failed to give adequate reasons for their conclusion.

15.	We cannot accept that submission.  First, as Mr Serr points out by reference to Montgomery,see paragraph 33 per Mr Justice Buckley, we cannot and should not interfere with that finding of fact by the Tribunal.  Secondly, we do not consider that the Tribunal disregarded the offer letter to which reference is made, effectively, at paragraphs 4 and 12 of the extended reasons.  Thirdly, we are satisfied that the Tribunal was entitled to compare and contrast the extent to which the employed full-time chaplain was subject to the disciplinary rules, grievance procedure and appraisal system of the respondent’s, whereas the Applicant was not (Reasons paragraph 11).  Fourthly, as Mr Serr again points out, the fact that the Applicant could simply withdraw from running the Alternative to Violence programme without demur by the Governor, is inconsistent with a sufficient degree of control by the Respondent (Reasons paragraph 9)  Fifthly, we are quite unable to say that the Tribunal’s conclusion on this issue was truly perverse in the legal sense as most recently explained by the Court of Appeal in Yeboah v Crofton [2002] IRLR 634.  Sixthly, the Tribunal’s reasoning on this aspect, in our judgment, is perfectly clear and adequate.

16.	On this basis alone, the appeal fails and is dismissed.

17.	Cross-Appeal
By the cross-appeal, the Respondent does not seek to challenge a discrete finding by the Tribunal which adversely affects the Respondent, rather to support the Tribunal’s conclusion that the Applicant was not an employee by the further and alternative contention that, contrary, to the Tribunal’s finding, there was here no contract because, it is submitted, the Tribunal found no mutuality of obligation between the parties itself and irreducible minimum of a contract of service.

18.	In light of our principal finding in the appeal, the cross-appeal is now strictly rendered moot.  Had we been obliged to decide the point in the cross-appeal, we would have held that the Tribunal’s findings were insufficiently clear so as to necessitate remission for further findings.  That course is, however, unnecessary, the appeal having failed and so we formally make no order on the cross-appeal.