Appeal No. EAT/1096/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 July 2000

Before
HIS HONOUR JUDGE A WILKIE QC
MR J R CROSBY
MISS G MILLS

MR E MURRAY	APPELLANT

NEWHA CITIZENS ADVICE BUREAU	RESPONDENT

Transcript of Proceedings

JUDGMENT

FULL HEARING
Revised

	APPEARANCES

For the Appellant	MS H WILIAMS
(of Counsel)
42 Museum Street
Bloomsbury
London
WC1A ILY	
For the Respondent	MR D L REES
(of Counsel)
Jasmine House
Kingston Street
Chinnor
Oxon
OX9 4NL	

JUDGE WILKIE

1	This is an appeal by Mr Murray against a decision of the London (North) Employment Tribunal promulgated on the 28 July 1999 after a hearing which took place on the 25 June 1999.  The decision against which he appeals is a unanimous decision of the Tribunal that it had no jurisdiction to hear his application for a finding of disability discrimination under the Disability Discrimination Act 1995 because the Tribunal decided that he did not apply for employment within the meaning of Section 68 of the 1995 Act.  It thereby dismissed his application.

2	The Respondent is the Newham Citizen's Advice Bureau Ltd and the complaint concerned the rejection by the Citizen's Advice Bureau of Mr Murray’s application to be permitted to become a trainee voluntary adviser.  Mr Murray claims that the refusal of his application or offer to undergo that training constituted Disability Discrimination, essentially because it appears the reason he was turned down had to do with his history of mental illness and certain events which had occurred in the past concerning that.  We are not at all concerned with the substance of that complaint.  All we are concerned with is his appeal against the Tribunal’s decision that the application failed on the preliminary point namely that for which he had applied did not amount to employment with in the statutory definition.

3	Section 41(a) of the Disability Discrimination Act 1995 provides amongst other things as follows
1.	It is unlawful for an employer to discriminate against a disabled person 
(a)	in the arrangements which he makes for the purpose of determining to whom he should offer employment
(b)	by refusing to offer or deliberately not offering him employment.
4	Section 68 of that Act is the interpretation section and within sub section 1 of that section the word “employment” is defined as meaning: |”subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract person elect to do any work and related expressions are to be construed accordingly.” 

5	The Employment Tribunal considering the question of employment had to consider that for which Mr Murray had applied.  He applied to be admitted to the training programme the precise form of which would have required him to sign a document produced by the Citizen's Advice Bureau, which was before the Tribunal and is in our bundle at pages 22 and 23.  That document on its face is the applicant agreeing, whilst volunteering at Newham Docklands Citizen's Advice Bureau, to a series of numbered matters to which he agrees: First his role; second his commitment to volunteer on particular two days a week, third his agreement to volunteer at certain specific times; fourth his agreement as to a start date; fifth his agreement to volunteer for a length of time, (the evidence before the Tribunal was that that period of time would be twenty four months if he only worked two days a week, or twelve months if he worked five days a week); sixth his understanding that he must complete the basic any Citizen's Advice Bureau training within eight months; and eighth that he agreed to notify the Bureau manager of any absence and to give reasonable notice of his intention to leave.

6	Under that particular part of the document there is then a headline word “agreement” and then the following; “you will receive… (1)  Training.”  It then sets out what formal and informal training he will receive) (2) Support, (then it sets out what support he would receive).  The next section concerns a grievance procedure.  The following section sets out a disciplinary procedure.  There is an expenses section which provides that he will receive expenses for transport to and from work, whether public transport reimbursement of fares or a mileage allowance if he used a car in the course of his work.  
7	It then goes on to set out “what we expect from you” and sets out a number of items headlined” “commitments to the aims and principals of Citizen's Advice Bureau… commitment of time… hours of work and holidays,” finally it sets out a whole series of requirements in terms of the details of the practice in respect of claiming holidays and so on and so forth.  

8	The Tribunal dismissed his application because it concluded that the volunteer adviser post and the training programme do not come within the definition of employment within Section 68.  The reasoning leading to that conclusion was set out in a number of sub paragraphs within paragraphs 4 of the Tribunals decision.  In sub paragraph (1) they addressed themselves to what the question was that they had to answer, namely whether the programme can be described as “contract of employment” or “a contract personally to do any work” within the meaning of Section 68.  In sub paragraph (2) it identified some features of an employment relationship and headlined a number of the matters to which we have just referred.  In sub paragraph 3, however, they say this: -

“However there is no obligation in either party the Citizen's Advice Bureau can terminate the relationship at any time; There is no obligation on the “trainee” volunteer adviser to attend if he chooses not to do so.  There are no sanctions against him except the termination of the training programme.  Likewise the volunteer adviser is under no obligation to commit himself to “advising” work for any period or at all after completing the training period.  The Training is a general job training not training for a professional or vocational qualification.  The position of volunteer adviser in the Citizen's Advice Bureau is no different to that of other volunteers in other voluntary organisations.”  

In sub paragraph (4) they say this “the crucial factor is the absence of pay.  

“Expenses” which are reimbursement of travel expenses incurred by the volunteer in travelling to and from his home and his workplace or when travelling on Citizen's Advice Bureau work cannot equate to pay or remuneration or remunerated employment.”  

9	That seems to be the reasoning on the basis of which the Tribunal reached their decision that he had not applied for employment within Section 68.  In so doing they were effectively construing the document which was before them.  It seems to us that their conclusion is not only plainly wrong but that it manifestly contains errors of law.  It is simply not right to say that under the agreement there is no obligation on either party.  On the contrary the document sets out for each party to the agreement a series of separate obligations and commitments.  

10	In our judgment any Tribunal looking at this document and concluding that there was no obligation on either party, bearing in mind the content of the document, must have either misdirected themselves as to the law or completely failed to understand the document and the application of the law to it.  Furthermore by apparently regarding the absence of pay as the crucial factor, rather than one of a number of factors to be weighed in the balance, this Tribunal has in our judgment also committed an error of law.

11	In saying that expenses cannot equate to pay or remunerated employment, whilst no doubt accurately categorising expenses as opposed to payment and remuneration, in so far as they were seeking to rely on that as supporting a conclusion that this was not a contractual arrangement with mutually binding obligations once again they were, in our judgment, plainly misdirecting themselves as a matter of law.

12	As Ms Williams has pointed out on her very clear comprehensive and helpful skeleton, the if Mr Murray, or anyone, having had expenses either travelling to work or whilst at work for the Citizen's Advice Bureau under such an agreement were not reimbursed those expenses in accordance with this document, an argument that he would not have recourse to law on the basis that the sums not were due under a contract or damages for breach of contract. would be unsustainable.  We therefore conclude that this Tribunal has simply failed to understand the law or to apply the proper legal principle to this standard form document and its terms.
13	It therefore follows that insofar as the decision of the Employment Tribunal was founded on the basis that the document recording the agreement which Mr Murray was applying to make did not constitute a contract then that decision cannot be allowed to stand and therefore we uphold this appeal.  

14	However, as Ms Williams has very sensibly conceded and indeed suggested in her skeleton, the mere fact that the document amounts to a legal binding contract if entered into, does not in itself, mean that the Tribunal has jurisdiction under Section 68 because in order for it to have jurisdiction under Section 68 the contract has either to be a contract of service or a contract personally to do any work.  The Employment Tribunal in deciding against Mr Murray on the basis that it did, failed to address the question whether the contract is either a contract of service or a contract personally to any work or is no more than simply a training contract under which Mr Murray is not contracted personally to do any work but simply contracting to undergo the training in the manner prescribed.

15	In order for any Tribunal sensibly to come to a conclusion on that issue it would have to receive evidence on what actually happens under such an agreement in terms of the mix between formal training, supervision whilst at work, and work performed during the training period, no doubt taking into account all those matters and any other relevant matters and coming to a conclusion as to whether, on balance, the contract can be described as a contract personally to do work.

16	We are not in a position to make that judgment because this Tribunal either did not take any evidence or has not made any findings of fact on any of these issues and therefore it is not for us to decide at this stage whether on that basis Mr Murray’s complaint falls within Section 68 or not.  Therefore it is inevitable, though unfortunate, that this preliminary issue must be remitted to an Employment Tribunal in order for that Employment Tribunal to take evidence on that issue and to make its findings and from those findings come to its conclusion as a matter or fact and law.

17	Mr Rees has helpfully indicated that it may well be that it will be quicker in the long run for the matter to be remitted to any available Employment Tribunal rather than to the particular Tribunal which took this particular decision. Accordingly we remit it to any particular Employment Tribunal.  

18	That, however, does not end the matter.  Ms Williams plainly has in mind two possible scenarios.  One is that, after taking further evidence the Employment Tribunal concludes that the agreement that Mr Murray sought to make but which he was refused the opportunity of making does constitute a contract personally to any work because of the nature of the practice under the trainee volunteer advisory contract.  If that is its conclusion then the Tribunal would have jurisdiction to go on to consider the substantive complaint.  It is possible, however, that the Employment Tribunal may conclude that, although it is a contract it, is a contract for training rather than a contract personally to do work and so, on that basis it does not have jurisdiction.  Were that the case Ms Williams would then seek to argue that the refusal of Mr Murray fell foul of Section 4.1(a) of the 1995 Act namely, that the refusal to admit him onto the training programme constituted discrimination against him as a disabled person, admission to that programme being part of the arrangements which the Citizen's Advice Bureau makes for the purpose of determining to whom he should offer employment.  

19	As we have indicated the Employment Tribunal dismissed his application on a narrow point and, as we have found, erroneously so.  However, in its decision and in particular paragraph 14 sub paragraph 5, this Employment Tribunal did express a view, though we think it is not part of the decision itself, on whether such a training programme is capable of forming part of the arrangements under Section 4.1(a).  What it says is this: -

“The fact that the training programme is a pre condition for paid employment as an adviser with the Citizen's Advice Bureau does not mean that the Applicant in this case was applying for a job with the Citizen's Advice Bureau under a contract of employment.  The volunteer training programme is not an arrangement made from the purpose of determining to whom the Citizen's Advice Bureau should offer employment within the meaning of Section 41(a) of the 1995 Act.  In order to come within Section 41(a) the arrangements have to be in relation to a specific job vacancy or vacancies.”

20	Ms Williams contends, and in our judgment rightly so, that a volunteer training programme such as this is capable of being an arrangement for the purpose of determining to whom the Citizen's Advice Bureau should offer employment.  In our judgment the words of Section 41(a) are wide.  It is not confined to the arrangements which the employer makes or determining to whom they should offer a specific job.  As long as they are arrangements and the purpose of those arrangements are to determine, or are part of the arrangements to determine, to whom employment generally shall be offered, in our judgment such a training programme is capable of being an arrangement covered by 41(a).  The way Ms Williams has put it, and in our judgment correctly, in her skeleton, is that the satisfactory completion of such a training programme is a first step or method by which a pool of people is fixed upon within which such employment as is available may be offered. It is a first stage in a potentially seamless process at the end of which is an offer of employment as a volunteer advisor.  Whether that is or is not the case will depend upon evidence which this Employment Tribunal did not take and findings of fact which we are not in a position to make.  All that we can say at this stage is that, in our judgment, having regard to the words of 4.1. (a), and to the purposive mode of construction which has found favour in these Tribunals in analysing statutory provisions such as the Sex Discrimination Act 1975 in the case of Brennan –v- J H Dewhurst to which we have been referred, the conclusion of this Employment Tribunal that the arrangements have to be in relation to a specific job vacancy or vacancies is an erroneous and an unduly restrictive construction of Section 4.1(a).  Whether or not the provision of such a training programme does in fact fall within Section 4.1(a) will depend on a number of matters which the Employment Tribunal will have to determine.  Those matters may include: first whether a volunteer adviser is someone who is engaged in employment within the meaning of Section 68 of the Act; second, whether, in fact and in practice, the progression from completion of the volunteer training programme to the offer of a of a position as a volunteer adviser is such as to demonstrate that the provision of the training programme is part of an integrated selection process or whether it is an entirely discrete and separate process at the end of which there is a fresh consideration whether to offer such employment.  Those are matters upon which no evidence has yet been heard and upon which we can express no view other than to say that at the moment it seems to us that it is capable of falling within Section 4. (a).

21	Therefore we uphold this appeal and remit this case to an Employment Tribunal to consider the preliminary issue jurisdiction afresh on each of these issues.