Appeal No. UKEAT/0322/06/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 October 2006

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR Z KHAN	APPELLANT

PREMIER PRIVATE HIRE TAXI	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS A ROBINSON
(of Counsel)
Instructed by:
Messrs Stachiw Bashir Green Solicitors
1a Oastler Road
Saltaire
West Yorkshire
BD18 4SE	
For the Respondent	MR M SHERIDAN
(of Counsel)
Instructed by:
Messrs Levi & Co Solicitors
33 St Paul’s Street
Leeds
West Yorkshire
LS1 2JJ	

SUMMARY
Practice and Procedure – Application/Claim
Religion or Belief
The Chairman refused to accept the claim form on the ground that it appeared that the Claimant was a private hire taxi driver in the same position as the Claimant in Mingeley v Amber Cars. This was an error as the application of Mingeley could have only been properly carried out once the facts of the relationship had been found or had been made clear in the claim form. The admission in the form (completed by the Claimant in person) that he was like an agent was not sufficient. There should have been a hearing in order to find the facts. 

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about the application of the Employment Equality (Religion or Belief) regulations to a private hire taxi driver. The background to this case is unimportant since it has been presented as a single issue on appeal relating to whether or not a Chairman was correct to refuse to accept the Claimant’s claim form on the ground that the Tribunal had no jurisdiction to hear the case. 

2.	The material before me is slight because there has been no hearing, but it is greater than was before the Chairman. The sum total of the material was the claim form, which was met by the answer “your claim has been referred to a Chairman, Colin Grazin, who has directed that your claim cannot be accepted as the Tribunal does not have power to consider your claim.” The Claimant, Mr Khan, was directed to the Tribunal’s very helpful booklet. 

3.	On the sift, Silber J invited Mr Grazin to provide reasons as to why he considered he did not have power to consider the claim. Mr Grazin wrote on 1 June 2006, and I am grateful to him for this response. What he said was this:
“It seemed to me that the Claimant came within the type of worker (in the very loosest sense of that word) who was the subject of a prior decision of the EAT in Mingeley v Mr A Pennock & Mr F Ivory t/a/ Amber Cars EAT/1170/02, which, by pure chance, was an appeal against a decision made by a Tribunal which I chaired, in September 2002. My recollection, although I have not had a chance to check the position, is that the unsuccessful Appellant, Mr Mingeley, sought to challenge the EAT decision in the Court of Appeal and that he was unsuccessful in so doing. I attach a copy of the decision in Mingeley for ease of reference by the learned Judge.
It seems to me that the position of the present Claimant, Mr Khan, is identical to that of Mr Mingeley. Since Mr Mingeley was not able to claim the protection of the Race Relations Act 1976, and since the relevant provisions in the 1976 Act and the Employment Equality (Religion or Belief) Regulations 2003 are identical, then equally Mr Kahn would not enjoy the protection of the 2003 Regulations.
When I made the decision to reject the claim, I did not have the judgment of the EAT in Mingeley in front of me. I have re-read that. I note that His Honour Judge Peter Clark referred to the possibility that that Appellant might be able to rely upon Section 14 of the Race Relations Act, which is, or course, equivalent to Regulation 18 of the 2003 Regulations. That in turn requires consideration of the definition of an employment agency. There is no definition in the 2003 Regulations, but for present purposes I take the equivalent definition from Section 78(1) of the Race Relations Act 1976. An “employment agency” means:
“A person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers”.
If that definition is to be applied to the present circumstances, the proposed Respondent would have to be a person who provides services for the purpose of providing employment for workers. The relevant employment would have to be between the taxi driver and the taxi customer. I do not consider that is an employment relationship. Apart from any other factor, there is no mutuality of obligation as between those parties. Alternatively, the definition encompasses a body which supplies employers with workers. Clearly, that is not relevant to the present situation.
In any event, and doing the best I can for the Claimant, none of this appears from the Claim Form. In my view, therefore, the claim was properly rejected.”

4.	When the papers came back they were put before Elias J (President) who ordered a full hearing of this matter. I have shared with Counsel, Ms Robinson for the Claimant and Mr Sheridan for the Respondent, the perspective of the President, which was this:
“It seems to me arguable that this appeal should not have been excluded without at least hearing evidence about the precise nature of the relationship between the taxi driver and the taxi firm.”

5.	That too was my provisional view as I looked at these papers, for it seemed to me that in order to make a decision to apply Mingeley it was necessary to have a minimum congeries of facts. 

6.	Mr Sheridan submits that the Chairman made a number of errors in his response, but nevertheless got the point unarguably right. He contends that the Judgment in Mingeley was in fact the upholding by both the EAT (HHJ Peter Clark and members) and the Court of Appeal of a Judgment of an Employment Tribunal, presided over by Mr Grazin himself: see [2004] IRLR 373 (CA). The correct approach is as set out in the Judgment of Maurice Kay LJ at paragraph 13 and 14.: 
“13. I find this to be an unsustainable argument. That which a Directive has recently imposed on Member States as a legislative requirement cannot provide a useful aid to construction of a provision of domestic legislation which has been in existence for more than a quarter of a century and which has received authoritative interpretation in the Court of Appeal and the House of Lords. Moreover, Parliament must be assumed to be aware of that authoritative interpretation but it has chosen not to amend s.78.
14. I return to the central issues which Mr Thacker correctly identified in his Skeleton argument. In my judgment, on the plain words of s.78 and the authorities to which I have referred, the employment tribunal was correct to conclude that, in order to bring himself within s.78, Mr Mingeley had to establish that his contract with Amber Cars placed him under an obligation “personally to execute any work or labour”. As the tribunal found, there was no evidence that he was ever under such an obligation. He was free to work or not to work at his own whim or fancy. His obligation was to pay Amber Cars £75 per week and if he chose to work then to do so within the requirements of the arrangement. However, the absence from the contract of an obligation to work places him beyond reach of s.78.
In addition Buxton LJ said this:
21. It was agreed in argument, and indeed found by the tribunal, that Mr Mingeley’s only contractual obligation to Amber Cars was to pay the £75 weekly fee for access to Amber Cars’ computer system. He does nothing else contractually for Amber Cars: and therefore, on the plain meaning of the words, his contract with them cannot be a contract personally to execute any work or labour. For that reason, I think that in this case the facts never approached the issue of dominant purpose which, I would agree with my Lord, poses difficulties of its own.”

7.	All of those indicate some evaluation of the facts. It is plain that the Judgment of the Employment Tribunal consisted of a very thorough examination of the facts and of the contractual relationships between the taxi driver and the company, in order for it to conclude that it had no jurisdiction.

8.	The proper approach is to consider what was available to the Chairman first time around in the light of his further reasons, as provided to the EAT. It was solely the claim form. With Mr Sheridan’s help I have been taken through it, but he accepts that, right down to the answer to question 10, it cannot be said unequivocally that the Claimant was not within scope of the regulations. By regulation 2: “employment means employment under a contract of service or apprenticeship or a contract personally to do any work, and any related expression shall be construed accordingly”. There is also an extension to an employment agency, for regulation 18(6) defines an employment agency as follows: “a person who, for profit or not, provides services for the purpose of finding employment for workers or supplying employers with workers.” 

9.	Now with those two definitions in mind it is necessary to descend upon paragraph 10 of the claim form which says this:
“Answer to question no.4.4:- the company was not paying me, I was taking fare from customer and paying commission to the company. Like an agent transacting business for another.”

10.	Mr Sheridan is correct to assert that that indicates a relationship with a customer and an agency, but there may be more to this. In acknowledging that, he provoked from Ms Robinson a rudimentary basis upon which this case could be advanced below. If I were to detect an error then I would grant the relief the Claimant seeks, that is a full hearing at the Employment Tribunal. I was anxious to explore with the advocates whether there was practical utility in starting the process which would require a response by the Respondent and a hearing before the Tribunal, for if in reality Mr Khan is in precisely the same position as Mr Mingeley there would be no point. It must be borne in mind therefore, that further material should be adduced. 

11.	On this material I am satisfied that it was an error by the Tribunal Chairman to have refused to accept the claim form. The Claimant is driven from the judgment seat. It was open to the parties to agree to have a preliminary hearing on the matter if they wished, and that might well be the appropriate way forward, or it might be that there should be a full hearing on all of the issues. I accept that questions arise from the material which are not answered in the documents available today, which include: what is the relationship between the Claimant and the customs he was due to pick up? Was it a regular relationship? Was the Claimant the driver who was regularly sent to the BUPA hospital? And so on. 

12.	I also bear in mind that, as in the Mingeley case, this case invokes unlawful discrimination and in a pluralist society. as Lord Steyn memorably remarked in the Anyanwu  v South Bank Student Union, [2001] ICR 391 HL, there is an imperative for cases to be heard unless no jurisdiction is found to exist after a proper consideration. I fully endorse the case management measures which were introduced in order to allow such cases to be ventilated quickly and expeditiously, and measures are in place to allow proper cases to go forward and those which disclose no jurisdiction to be refused. 

13.	However, in my judgment the material adduced by the Claimant in his claim form, which must be taken at face value, does not conclusively debar him by way of jurisdiction. The proper approach where there is, as here, a working relationship, to put it neutrally, and where some aspects common to an employment relationship exist, is to allow the claim form to be accepted, for the Respondent to put in a response, and then for there to be the usual steps, which might be further sought as to how the Claimant put his case, and any applications for any matters to be dealt with on a preliminary basis. 

14.	It is sufficient to indicate that in the Chairman’s original and second approaches to this case there is a reflection on Mingeley. In my judgment, no proper comparison can be drawn with Mingeley on the scant basis which is apparent in the claim form, at least so as to condemn the Claimant without a hearing in a case where the nature of the relationship cries out for an examination of the facts said to constitute the relationship and of any documentation, including the way in which the parties have conducted themselves over time. I allow the appeal.

15.	I will now order that further information be given by the Claimant and be served with the claim form, setting out precisely how he says he is within scope, and that document will be added to the claim form which I now order to be accepted. When the Respondent receives the additional information it will respond to it and to the claim form, and then directions will be given by the Employment Tribunal in the usual way.