Member Article

In a judgment delivered on the 30^th September 2020, the Court of Appeal confirmed a decision of the Industrial Tribunal ("the Tribunal") which had found that the relationship between the applicant and the defendant company was not one of employment.

The applicant had instituted proceedings before the Industrial Tribunal following the termination of his contract. He alleged that notwithstanding what his contract stated, he should be deemed an employee and therefore termination could only take place for a good and sufficient cause. Since the company had terminated his contract simply by giving notice according to the contract, he was therefore allegedly entitled to compensation for unfair dismissal. On the other hand the company argued that the relationship, as per the contract, was one of self-employment and consequently, the applicant had no right to claim compensation further to the notice which had been paid under the contract.

The Tribunal had found that the applicant was not an employee and therefore, it had no jurisdiction to continue hearing the case since it was not a case of unfair dismissal. The applicant appealed arguing that there was a wrong application of the law by the Tribunal, since it had not based its decision on the Employment Status National Standard Order ("the National Standard Order"). The company replied that this was simply an appeal based not on a point of law but on a request to the court to reconsider the factual findings of the Tribunal.

The Court of Appeal held that the Tribunal had been correct in taking into consideration, as a point of departure, the contract between the parties, since this has the force of law between the parties and it is the best evidence of the relationship between them. When the Tribunal had made considerations relating to the fact that the applicant had been registered for tax purposes in the UK but had brought no evidence of payment of such tax in the UK and had also refused to bring evidence that the fees received from the company were his sole income, these considerations were with reference to the criteria mentioned in the National Standard Order. The fact that in its decision the Tribunal had not made particular reference to the provisions of the National Standard Order or that it had considered other facts beyond the same National Standard Order did not mean that the Tribunal had not followed the law.

The Court of Appeal therefore confirmed the Tribunal's decision in that the applicant was not an employee of the company.

The company was represented by Dr Christine Calleja of Mamo TCV Advocates.�