|
|||||||||
| |
Maurice v. Betterware UK Ltd EAT/1030/99 Employment Appeal Tribunal This case concerns itself with whether the contract accurately reflects reality. The applicant, Mrs Maurice, is stating that although the contract appears to be one for services, which is akin to being self-employed, it doesn't actually reflect her working practices. She is claiming that, in fact, she is employed despite the contract and on the basis of this is claiming unfair dismissal. This issue has not been discussed yet because the claim has had to go through some procedural issues but, it will be one to watch. In this recent case at the Employment Appeal Tribunal on the 3rd of July 2000, the appellant Mrs Maurice was claiming unfair dismissal. The respondents Betterware UK Ltd, contended that Mrs Maurice was not employed by them but, was in fact, a 'del credere' agent. Effectively, Betterware were trying to establish that Mrs Maurice was self-employed under a contract for services. In the pre-hearing review the Chairman of the tribunal heard oral submissions from counsel for Mrs Maurice and written submissions from the respondents. The Chairman noted that the submissions from Mrs Maurice's counsel were essentially that the written agreements signed by her did not reflect the reality of the relationship between the parties. The Chairman stated that "No evidence was taken at the pre-hearing review and consequently I am unable to say that those submissions would have no reasonable prospect of success. Everything of course will depend upon the evidence…" The Chairman, therefore, allowed Mrs Maurice's case to go forward for consideration. In the intervening period the respondent's solicitor wrote to the Employment Tribunal to make them aware of the recent decision in Express and Echo v. Tanton [1999] IRLR 367. Based on the decision of the Court of Appeal that Tanton was employed under a contract for services the respondents requested a fresh pre-hearing review to consider the matter. At this second pre-hearing review the Chairman concluded that Mrs Maurice's case had no reasonable prospect of success based on the following statement: "The contract is clearly a contract for service. This is reflected in almost every clause of the contract. Any tribunal hearing the case would take the contract as the starting point of the relationship between the parties. An argument that it did not reflect the parties' intention and that the reality was different would have no reasonable prospect of success in the face of the clear and unambiguous wording of the contract."The Chairman then ordered, by virtue of Rule 7(4) of the Employment Tribunals (Constitution and Procedure) Regulations 1993, Schedule 1, that Mrs Maurice pay £150.00 as a condition of being permitted to continue to take part in the proceedings. Mrs Maurice then appealed against this decision. The EAT, having considered the procedural issues, stated that "…in our judgement the Chairman at the second pre-hearing review adopted the wrong approach to this issue as a matter of law and failed to considered whether there had been any material change in the facts of the case or in the law applicable to it." On the basis of this, the EAT allowed the appeal. Mrs Maurice has, therefore, been allowed to go forward to the Employment Tribunal so her claim for unfair dismissal can be considered. The claim will be based on the submission that the contract does not represent the reality of the situation and that in fact she was employed by Betterware UK Ltd. This will be an interesting case to follow. It is slightly unusual in that there is a properly written contract, but the appellant (Mrs Maurice) is saying that the contract does not reflect the working practices in reality. It may well end up back in the EAT over the question of what constitutes a contract for services or a contract of service? |
||||||||
