Construction Industry Training Board v Labour Force Ltd
[1970] 3 All ER 220(Judgment by: Fisher J)
Between: Construction Industry Training Board
And: Labour Force Ltd
Judges:
Cooke J
Fisher JLord Parker CJ
Subject References:
Master and servant
Contract of service
Incidents of contract
Agreement by one with another to provide services to a third
Whether contract of service or contract sui generis
Case References:
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance - [1968] 1 All ER 433; [1968] 2 QB 497; [1968] 2 WLR 775, Digest Supp
Judgment date: 14 July 1970
Judgment by:
Fisher J
I agree. The question on this appeal, as Cooke J has said, is whether the respondents are employers in the construction industry, and whether the sums paid by them to the workman are emoluments of persons employed by them as such employers. It is common ground that that can only be so if the workmen are employed by them under contracts of service.
An appeal to this court from a decision of the Industrial Tribunal lies only on a question of law, and it has been many times held, in decisions which are binding on this court, that (save in the case where the contract is wholly contained in a document or documents) the question whether a contract is one of service or is a contract for services is a question of fact. It is, however, a question of law what are the right tests to be applied in determining whether a contract falls into the one or the other class, and a decision of the tribunal could be upset by this court if it was of the opinion that the tribunal had applied the wrong tests, in other words had misdirected itself in law, and, of course, a decision of a tribunal may be such that the court will say that it could not possibly have come to their decision of fact unless it had misdirected itself in law, and in those circumstances also this court could interfere.
In my judgment, it is really not possible, in Mr Atiyah's [F3] words to lay down:
'... a number of conditions which are both necessary to, and sufficient for, the existence of ... [a contract of service]. The most that can profitably be done is to examine all the possible factors which have been referred to in these cases as bearing on the nature of the relationship between the parties concerned. Clearly not all of these factors will be relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the determining ones. The plain fact is that in a large number of cases the court can only perform a balancing operation, weighing up the factors which point in one direction and balancing them against those pointing in the opposite direction. In the nature of things it is not to be expected that this operation can be performed with scientific accuracy.'
I am satisfied that in this case none of the considerations which the tribunal took into account was a consideration which it should not in law have taken, and that it has not omitted any relevant considerations. The question of what weight should be given to the various factors is one for it. I would only comment on one of the matters with which Cooke J has dealt, and that is the term in the contract between the respondents and the workmen, by which the workman declares that he will be responsible for his own PAYE income tax returns and National Insurance contributions. As counsel for the board has pointed out, if this is in fact a contract of service such a provision would be contrary to law and of no effect. It seems to me that this was a legitimate factor for the tribunal to take into account, and is a pointer in the direction of a form of contract under which that condition will be valid, rather than a form of contract under which it will be void and of no effect. I agree that the appeal should be dismissed.