Mrs. Christina A.

Gunning v Mirror
Group Newspapers Limited
Appeal No. EAT712/85
In the Supreme Court of Judicature
Court of Appeal (Civil Division)
On Appeal from the Employment
Appeal Tribunal
5 November 1985

1985 WL 311133
Lord Justice Oliver Lord Justice Balcombe and Sir David Cairns
Tuesday 5th November 1985

Representation
MR. ALEXANDER IRVINE Q.C. , and MR. RICHARD FIELD (instructed by Messrs. Nicholson, Graham
& Jones, Solicitors, London EC2R 6AU) appeared on behalf of the Respondents (Appellants)
THE HON. MICHAEL BELOFF Q.C. , and MR. JOHN HAND (instructed by Elizabeth Whitehouse, Equal
Opportunities Commission, Manchester M3 3HN) appeared on behalf of the Applicant (Respondent)

JUDGMENT
LORD JUSTICE OLIVER:
This is an appeal from a judgment of the Employment Appeal Tribunal (Mr. Justice Waite, Mr. A. D. Scott and Mr.
E.A. Webb OBE) on the 6th July 1984, dismissing the present appellants' appeal from a ruling of the Industrial
Tribunal, on 3rd August 1983, that it had jurisdiction to hear a complaint by the respondent, Mrs. C.A. Gunning,
that in declining to award her a contract for the distribution of certain of the appellants' Sunday newspapers they
had unlawfully discriminated against her on the ground of her sex or married status contrary to s.6(1) of the Sex
Discrimination Act 1975 . That sub-section provides, so far as material:
It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate
against a woman
(1) by refusing or deliberately omitting to offer her that employment.
The relevant facts for the purposes of the appeal can be shortly stated. They are set out more fully in the
judgment of the Employment Appeal Tribunal which is now reported in (1984) Industrial Court Reports 706. Mrs.
Gunning is the daughter of a Mr. Stark and was employed by him in the business which he ran of distributing
Sunday newspapers in the Sheffield area. About 30% of the turnover of that business was represented by the
distribution of the two Sunday newspapers published by the appellants. The business, although referred to both
in the judgment under appeal and in that of the Industrial Tribunal as an agency , was not an agency in any
legal sense. It was an area distributorship, the agent purchasing the papers from the appellants and re-selling
them to newsagents in the area. It had at one time employed as many as 17 people and owned five delivery
vans, but at the date of the hearing the number of people employed had been reduced to eight packers and
drivers, the transport consisting of private cars or rented vans. It supplies some 90 shops. The actual operation of
sorting and delivering newspapers takes place at the British Rail Parcels Office at Sheffield and Mrs. Gunning's
evidence was that she personally attended at the station with her father before his retirement, to participate in
and supervise the process of reception, sorting, packaging and delivery.
In 1982, when her father was 67, he decided to retire and informed the appellants of this intention, accompanying
that information with the expression of a hope that they would renew the distributorship in favour of his daughter.
In the event the appellants decided not to renew the contract but to divide the supplies of their newspapers in the
area between two other businesses. Their reasons for doing this are in issue between the parties to the
proceedings and remain to be determined if the proceedings continue. At present the sole question is whether
the Industrial Tribunal had any jurisdiction to hear the complaint at all.
Enough has been said to demonstrate that Mr. Stark was not employed by the appellants in any conventional
sense of the word. He was simply an independent contractor with a franchise to purchase and distribute the
appellants' goods. Mrs. Gunning's case, however, rests upon the extended definition of employment in s.82(1) ,
which is in these terms:
Employment means employment under a contract of service or of apprenticeship or a contract personally to
execute any work or labour, and related expressions shall be construed accordingly.
The Industrial Tribunal, as they stated in their judgment, found as a fact that it was expected that she should in
fact take an active part in the business .
The actual finding was in paragraph 17 of their decision and was expressed thus:
The Tribunal, having carefully considered the evidence, finds as a fact that the personal involvement of the
individual nominated as a wholesale agent is material to the offer of that agency; and that this, by itself, does
require that the individual be directly involved at least in terms of overall day-to-day supervision of the work
carried out by his or her agency.
Basing themselves on this, they concluded that
the type of agency work done by the applicant constituted employment for the purpose of section 6(1) , in that it
was a contract personally to execute work or labour.
Accordingly they held that there was jurisdiction to entertain Mrs. Gunnings' complaint.
The appellants appealed to the Employment Appeal Tribunal on the grounds (a) that the ruling of the Industrial
Tribunal was wrong in law in that the tribunal had misdirected itself as to the proper interpretation of the words a
contract personally to execute any work or labour in s.82(1) of the Act; and (b) that in any event, there was no
evidence upon which the tribunal could properly conclude that the agreement with the appellants imposed any
personal obligation on the distributor to do anything other than pay for the newspapers supplied. The latter
ground was, as I read the judgment, rejected by all three members of the Employment Appeal Tribunal.
On the point of interpretation, however, one of the members, Mr. Scott, was of the view that the distributorship
agreement was not a contract of the type envisaged by the section and therefore did not
constitute employment in the extended sense. The majority took the same view as the Industrial Tribunal but, on
analysis, by a slightly different process of reasoning. The Industrial Tribunal appears to have considered that
once there was found in a contract of any sort an obligation to do in person anything which could be described
as work or labour , no matter how indeterminate or what the extent of the obligation or its relationship to the
contract as a whole, that concluded the question and the contract was, by that very fact alone, a contract
personally to execute any work or labour . The majority of the Employment Appeal Tribunal adopted a rather
different approach which was expressed thus:
The legislative purpose in applying the word any to the expression work or labour was, we believe, to indicate
that the formula was meant to be a wide and flexible one. It would be a matter for the tribunal upon the terms of
each particular agreement, properly construed according to its context, firstly to determine whether any (and if so
which) of the duties requiring execution by the contracting party constituted work or labour, secondly to assess
the extent to which he was required to undertake responsibility for their execution in his own person, and thirdly
to look at the agreement as a whole, asking itself whether, having regard to those findings, the contract is
properly to be regarded in essence as a contract for the execution of work or labour or as a bargain of some
other kind The necessity in every case is to arrive at the essence of the transaction and for the tribunal to pursue
its inquiry without applying any preconceptions.
They held that the process just described was the one adopted by the Industrial Tribunal, though perhaps not
consciously in those exact terms . They accordingly dismissed the appeal.
The appellants now appeal to this court on the same two grounds as were urged before the Employment Appeal
Tribunal and on an additional ground that in any event the decision of the Industrial Tribunal cannot stand
because, even if (contrary to the appellants' contention) the Employment Appeal Tribunal correctly interpreted the
extended definition of employment in s.82(1) of the Act, the Industrial Tribunal did not direct itself according to
that interpretation.
The first point is the pure point of law as to the correct meaning, as a matter of statutory interpretation, of the
words a contract personally to execute any work or labour . Here the primary division between the parties is as
to the meaning of the word any . Mr. Alexander Irvine QC, on behalf of the appellants, contends that the court
has to read the section in the light of the fact that what it is doing is providing an extension of the meaning of the
word employment in its ordinary sense of a contract of employment or service, the essential condition of which
is that the employee engages to provide his own work or skill in return for remuneration. There may be lacking
other essential conditions, for instance that of control by the other party to the contract, so that it does not qualify
as a contract of service, but the essential concept is of a contract for the services of the employee , the purpose
of which is to make available to the other contracting party (the employer ) the services and skill of the
contractor. An example would, for instance, be a contract for the painting of a portrait by an artist or the
engagement of an actor, singer or dancer. Whilst it is true that the section uses the word any work or labour, Mr.
Irvine submits that this cannot sensibly be applied to include within the definition every contract which contains a
stipulation of whatever minimal importance for the personal performance of some function. What is to be looked
for is not simply a contractual obligation forming part of a larger whole to do something personally but a contract
(i.e. a complete contract) personally to do work or labour. Only thus, he submits, can one give a sensible
meaning to the word any . It stems, he submits, from s.167(1) of the Industrial Relations Act 1971 , which drew
a distinction between employees and workers and included in workers the self-employed so long as their
services were non-professional. Any , he suggests, in this statute means any kind and is there to emphasize
that even services to a client in the course of professional activities are within the definition. Thus, he submits, to
qualify as a contract under the extended definition in s.82(1) the contract must be one the sole or dominant
purpose of which is the execution of work or labour by the contracting party. A contract the purpose of which is to
secure a result which is to be achieved by the employment of many does not become a contract personally to
execute work or labour merely because the contracting party assumes an obligation to engage himself, in
however small a way, in the carrying out of the contractual purpose.
As against this Mr. Beloff QC, for the respondent, submits that nothing turns on the fact that the starting point is
that the definition is an extension of the word employment , which, he submits, in ordinary parlance merely
means work . He accepts that the court has to look for a positive contractual obligation of personal execution
and not merely an underlying hope or expectation, even an expectation which is an inducing cause for entering
into the contract at all. But if there is a contractual obligation to do anything active under the contract which can
properly be described as work or labour the fact that this may be entirely undefined and subsidiary to the
principal purpose of the contract is, he submits, irrelevant. He accepts that any does mean of any kind but it
also embraces of any extent , although he accepts, as I understand his argument, that the obligation has to be
of such substantiality that it can be said to be a material term of the contract. What he suggests is, essentially, a
two-stage inquiry: first, is there an obligation to do any work or labour at all personally? If so, then is that
obligation sufficiently substantial to the contract as a whole to enable the tribunal properly to describe the contract
as a contract personally to execute work or labour as opposed to a contract containing a minimal obligation for
such execution?
Such authority as there is, is of little assistance. Mr. Irvine relies on Broadbent v. Crisp, (1974) Industrial Court
Reports 248 , which was concerned with s.167 of the Industrial Relations Act 1971and in which Sir Hugh Griffiths
(as he then was) appears to have considered that what had to be looked at in relation to that definition was the
totality of the obligation of the party performing the relevant work. But there was no distinct argument before him
on the point at issue here. On the other side in Tanna v. Post Office, (1981) Industrial Court Reports 374 , where
Sir Gordon Slynn, on analogous provisions of the Race Relations Act 1976 , held that some obligation to do work
personally was essential, even though other work could be delegated. As Mr. Irvine points out, however, although
he held that some obligation of personal execution was essential, he did not say nor was it argued that any
obligation, however minimal, was sufficient.
The arguments are closely balanced and indeed, on analysis, are probably not for practical purposes widely
different in their results, since, as already mentioned, Mr. Beloff does not contend that any obligation, however
minimal, is sufficient to constitute a contract of the kind in question. On balance, however, for my part I am
persuaded that the more natural and logical meaning is that contended for by Mr. Irvine and expressed by Mr.
Scott in the Employment Appeal Tribunal. In my judgment, what is contemplated by the legislature in this
extended definition is a contract the dominant purpose of which is the execution of personal work or labour, and I
would allow the appeal on this ground, for quite clearly here the dominant purpose was simply the regular and
efficient distribution of newspapers.
Even if this be wrong, however, I am persuaded, having been taken through the material upon which the
Industrial Tribunal reached its conclusion, that Mr. Irvine's second ground of appeal is also made out. There was
not, in my judgment, any material upon which the tribunal could properly conclude that there was any term of the
contract between the appellants and Mr. Stark which obliged the latter personally to engage in the operation of
the distributorship agreement, although no doubt the expectation was that he would do so. It may even be that if
he had not attended personally, the appellants might have queried the efficiency of the operation and terminated
the agreement when they could lawfully do so. But I can find nothing which would justify the supposition that
there was any contractual obligation upon him to do anything (other than pay for supplies) so that his absence
from the scene of operations could have been categorised as a breach of contract.
The evidence of the actual terms of the agreement with Mr. Stark was jejune. Mrs. Gunning herself testified to
this, that when her father operated the business both she and he were personally at the station and that she took
part in the work of unloading, replacing string, loading vans etc, doing anything that needs to be done . As
agent for the Sunday Mirror she is recorded as saying I have felt I have to be there personally . She concluded
her examination-in-chief thus:
My understanding is that as agent I am totally responsible for getting all papers to the newsagents' counter, and I
have to ensure that no sales are lost due to non-availability.
I remark only that to be totally responsible , whilst it indicates responsibility in law, does not require a work or
labour to be done personally.
In cross-examination there was put to her a letter from the appellants' circulation manager in 1982 addressed to
an agent at Didcot setting out a list of the essentials required of a distributor of the Sunday People. She was
asked to agree that the letter contained no stipulation that the agent was to be engaged personally in any of the
four requirements it clearly did not. She replied that she believed it was agreed verbally . She agreed,
however, that though, as she put it, the agent is responsible , there was no stipulation that she must be there.
The final question, which she answered in the affirmative, was Each agent is left to run his business as he
determines how many employees, the method, etc. etc.? She was not reexamined.
Mr. Place, a trade union official, spoke of a discussion with the circulation managers of the Sunday Mirror and the
Sunday People. According to his evidence in examination-in-chief they said that they did need their agent
personally to be at the railway station .
In cross-examination, he said at first that they said that the agent had to be at the railway station, but when
pressed on this he retracted and said
I am not sure exactly that they said they had to be, but I know from experience they expect their agents to be at
the station.
The evidence of Mr. Cotton on behalf of the appellants was that though they insisted on acceptance of
responsibility to have the tasks done, they do not lay down any actual function that the agent has to carry out.
Agents could take holidays and he quoted the case of an agent at Eastbourne who was abroad for three
months. It is merely for the agent to ensure that the agency works in his absence. There is no requirement to
notify the company .
In cross-examination he explained that the group preferred to appoint individuals as agents rather than limited
companies, one reason being the difficulty of extracting money from a company in liquidation. He was asked You
do not prefer your agents to be personally involved? to which he replied Yes . His account in his evidence-in-
chief was scarcely challenged and at the end of his cross-examination there came the following series of
questions:
(Q) It may well be that Mr. Regan might have expressed the view that an agent personally should attend at the
railway station on Sunday mornings? (A) I would not doubt that he would have said it was preferable. Sunday
morning is the vital bit need someone responsible present. (Q) You expect that your agent personally acts as
agent. (A) Yes. (Q) You would not contenance sub-contracting an agency? (A) I agree. (Q) They can delegate,
but not divest themselves of responsibility as agent? (A) I agree.
So that the case being put to the appellants was that the agent had personally to accept responsibility, not that he
had personally to carry out the work of distribution, it being accepted that the functions could be delegated as
long as the agent remained responsible for their proper fulfilment.
What seems particularly, if not indeed solely, to have influenced the conclusion of the Industrial Tribunal that
personal execution of the work of distribution, at least to the extent of overall supervision, was not only desirable
but actually a contractual obligation, was a letter of 24th May 1980 from the Circulation Sales Manager of the
Sunday People (Mr. Regan) to a Mr. Halstead of Nottingham who had applied to take on a distributorship in
succession to his deceased father. In that letter, Mr. Regan set out some specific requirements so that there can
be no misunderstanding between us in future . He continued:
It is not possible for us to consider your limited company for the Sunday People agency and my newspaper will,
therefore, be supplied and charged to you personally with effect from a particular date.
That passage was quoted by the tribunal and appears to have been relied upon as creating some sort of
obligation on Mr. Halstead personally to involve himself in the actual operation of distributing papers. For my part,
I cannot so read it, for it seems to me that the most that could possibly be got out of it is that the appellants were
looking to Mr. Halstead personally and nobody else for payment for newspapers supplied. The specific
obligations intended to remove misunderstanding did not include any obligation for personal execution of work. It
did include although this was not quoted by the tribunal a provision that the agency was not transferable and
a provision that the tenure is conditional upon maintenance of a proper standard of service for which you will be
personally responsible . Again speaking entirely for myself, I am quite unable to read that as anything but an
intimation that Mr. Halstead could not excuse any lapse in service on the ground that it had been committed by a
subordinate.
That appears to have been the sum total of the evidence on the point before the tribunal. At highest, so it seems
to me, it indicated only that the appellants regarded it as desirable that an agent appointed to distribute
newspapers should personally participate in the business since, presumably, they would regard that as conducive
to the efficiency of the operation. But I am for my part quite unable to spell more out of the evidence than this.
The tribunal's finding that personal involvement is material to the offer was, in my judgment, justified to the extent
that the appellants were clearly concerned with the personality and efficiency of the owner of the business, but
the next proposition, namely that this that is, as I read it, the materiality of expected personal involvement to
the offer of agency does require that the individual be directly involved in the work carried out by his or her
agency , simply does not, in my judgment, follow from that premise. If the agency was efficiently run, no matter
by whom, and the proprietor paid for his newspapers, for my part I am unable to see how his omission personally
to oversee and supervise the operation could be categorised as a breach of his contractual obligations to the
appellants. The Employment Appeal Tribunal recognised that the process by which the Industrial Tribunal
reached its conclusion on this part of the case was what Mr. Justice Waite called evidential brick building when
the straws are scant , but regarded the straws as sufficiently numerous. For my part, I think they were insufficient
and that there was no evidence upon which a contractual obligation for personal services could be constructed. I
would allow the appeal also on this ground.
This renders it strictly unnecessary to consider Mr. Irvine's third ground. Again, however, I have felt compelled to
conclude that his submission is correct. There is no trace in the judgment of the Industrial Tribunal of any process
of weighing the importance relative to the contract as a whole of the obligation which they found. The reasoning
appears to have been simply this, that because there was, as they found, a requirement of personal involvement
at least to the extent of overall day-to-day supervision, that by itself and of itself rendered the contract a contract
personally to execute any work or labour. I can see no trace of the two-stage process which was suggested by
the Employment Appeal Tribunal as the correct approach.
For all these reasons I would allow the appeal.
LORD JUSTICE BALCOMBE:
Mr. James Stark had for many years owned and operated in Sheffield a business for the wholesale distribution to
retail newsagents of Sunday newspapers, including two Sunday papers published by the appellants, Mirror
Group Newspapers Ltd. The business supplied Sunday newspapers to 90 shops in the southern area of Sheffield
and North Derbyshire; at one time it employed 17 people, using five delivery vans and some private cars as well.
In the judgments below this business is described as an agency , but it was not an agency in the legal sense of
that term and, since the use of the term may give rise to misconceptions, I prefer to avoid it.
Mr. Stark's daughter, the respondent Mrs. Gunning, had for many years played an important part in the
management of the business. In May 1982 Mr. Stark, aged 67, informed the Mirror of his intention to retire at the
end of the year, and asked for his contract to be transferred to Mrs. Gunning. This the Mirror Group refused to do,
and Mrs. Gunning alleges (although the Mirror Group denies) that the reason for their refusal was because she
was a married woman with a young family, and that this constituted discrimination against her contrary to s.6(1)
(c) of the Sex Discrimination Act 1975 , which provides that it is unlawful for a person, in relation to employment
by him at an establishment in Great Britain, to discriminate against a woman by refusing, or deliberately omitting,
to offer that employment. Accordingly Mrs. Gunning complained to an Industrial Tribunal.
The Industrial Tribunal considered as a preliminary issue whether it had jurisdiction to entertain Mrs. Gunning's
complaint, and decided that it had. Mirror Group Newspapers appealed to the Employment Appeal Tribunal
which, by a majority, upheld the Industrial Tribunal's decision. The judgment of the Employment Appeal Tribunal
is reported in (1984) Industrial Court Reports 706. From that decision Mirror Group Newspapers have appealed
to this court.
Employment for the purposes of s.6(1) of the Sex Discrimination Act 1975 is defined by s.82(1) of that Act in the
following terms:
Employment means employment under a contract of service or of apprenticeship or a contract personally to
execute any work or labour.
It was common ground before us, as it was below, that Mr. Stark's contract which Mrs. Gunning wanted
transferred to her, was neither a contract of service (which involves the relationship of master and servant) nor of
apprenticeship; the question is: was it a contract personally to execute any work or labour?
On this question the Industrial Tribunal, in paragraph 17 of its Reasons, made the following finding:
The Tribunal, having carefully considered the evidence, finds as a fact that the personal involvement of the
individual nominated as a wholesale agent is material to the offer of that agency; and that this, in itself, does
require that the individual be directly involved at least in terms of overall day-to-day supervision of the work
carried out by his or her agency.
Then, without apparently considering further the true construction of the phrase a contract personally to execute
any work or labour , the Industrial Tribunal said, at the end of paragraph 19 of its Reasons:
As we have already indicated, the tribunal takes the view that, in the face of the somewhat elliptical
interpretation provided in the Act, it is appropriate to construe the agency contract applicable to the applicant's
father, and for which she was seeking a renewal in her own name, as constituting employment as defined, since
it was a contract personally to execute any work or labour .
It appears that the Industrial Tribunal assumed that, provided that the contract imposed some obligation upon Mr.
Stark personally to execute any work or labour, it was ipso facto a contract of employment within the Act.
The Employment Appeal Tribunal held unanimously that there was sufficient evidence to justify the finding of the
Industrial Tribunal that Mr. Stark's contract with Mirror Group Newspapers included an obligation on his part to be
directly involved in terms of overall day-to-day supervision of the work carried out by his agency (sic). On the
question of construction the Employment Appeal Tribunal was divided.
One member (Mr. Scott) held that contracts of agency on the one hand and contracts for the personal execution
of any work or labour on the other, are essentially different in kind, and that the essential character of the contract
in the instant case was one of agency; the mere introduction into it of a requirement that the agent should in his
own person be involved in the day-to-day supervision of the work carried out by his agency was wholly
insufficient to destroy that character and to transform it into a transaction of so essentially a different character as
a contract for the execution (personal or otherwise) of work or labour. The majority (Mr. Justice Waite and Mr.
Webb) said that they had reached an opposite conclusion. They said it was a matter for the tribunal upon the
terms of each particular agreement, properly construed according to its content, first to determine whether any
(and if so which) of the duties requiring execution by the contracting party constituted work or labour; secondly to
assess the extent to which he was required to undertake responsibility for their execution in his own person, and
thirdly to look at the agreement as a whole, asking itself whether, having regard to these findings, the contract is
properly to be regarded in essence (my emphasis) as a contract for the execution of work or labour or as a
bargain of some other kind. The majority went on to say that it appeared to them that the Industrial Tribunal had
applied this process of thought and accordingly, on the basis of O'Kelly v. Trusthouse Forte Plc., (1983) Industrial
Court Reports 728 , its decision could not be faulted.
Before us Mr. Michael Beloff QC, for Mrs. Gunning, submitted in his skeleton argument that the word any in the
phrase a contract personally to execute any work or labour refers to the amount or quantity, and not to the kind
of work or labour to be performed, so that any obligation personally to execute work or labour, however limited in
amount the work or labour might be, was sufficient to bring the contract containing that obligation within the
statutory definition. Mr. Alexander Irvine QC, for Mirror Group Newspapers, referred us to the case of Ready
Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance, (1968) 2 Queen's Bench 497 ,
and the distinction there drawn by Mr. Justice McKenna, between a contract of service and a contract for
services. He submitted, with justification as it seems to me, that the purpose of extending the definition of
employment beyond that of employment under a contract of service or apprenticeship, to include employment
under a contract personally to execute any work or labour, was so as to embrace within the definition work done
by an independent contractor under a contract for services which, while clearly within the mischief which the Act
was intended to remedy, would not otherwise qualify. He explained the use of the word any in the
phrase contract personally to execute any work or labour as referring to the kind of work or labour, by reference
to the legislative history of the phrase. In the Industrial Relations Act 1971 a distinction was drawn
between employee , meaning an individual who had entered into or worked under a contract of employment,
and worker , which included a person who worked (a) under a contract of employment, or (b) under any other
contract whereby he undertook to perform personally any work or services for another party to the contract who
was not a professional client of his see s.167(1) of the 1971 Act. In the 1975 Act it was not appropriate to
exclude from those entitled to the protection of the Act those persons who rendered professional services, and
accordingly the word any was inserted to make it clear that in this case the categories of work or labour
concerned were not limited as in the 1971 Act.
While I accept Mr. Irvine's submissions as set out above, I canot accept his primary submission that the
phrase contract personally to execute any work or labour contemplates only a contract whose sole purpose is
that the party contracting to provide services under the contract performs personally the work or labour which
forms the subject matter of the contract. As was suggested during the course of argument, this would exclude
from the definition a contract with a sculptor, where it was contemplated that some of the menial work might be
carried out by persons other than the contracting party, a contract with a one-man builder, who might be expected
to sub-contract some of the specialist work, or even a contract with a plumber, who might be expected to have
his mate with him on all occasions.
However, I do accept Mr. Irvine's alternative submission that the phrase in its context contemplates a contract
whose dominant purpose is that the party contracting to provide services under the contract performs personally
the work or labour which forms the subject matter of the contract. In the course of oral argument before us, Mr.
Beloff conceded that a single obligation to provide personal services in a contract is not of itself sufficient to bring
the contract within the phrase; you have to look at the contract as a whole to see the extent to which that
obligation colours the contract, which goes a long way towards accepting the dominant purpose test. In my
judgment, you have to look at the agreement as a whole, and provided that there is some obligation by one
contracting party personally to execute any work or labour, you then have to decide whether that is the dominant
purpose of the contract, or whether the contract is properly to be regarded in essence as a contract for the
personal execution of work or labour, which seems to me to be the same thing in other words.
Unlike the majority in the Employment Appeal Tribunal, I am wholly unsatisfied that the members of the Industrial
Tribunal ever applied their minds to that construction of the relevant words in the 1975 Act. Indeed, for reasons
already given, it seems to me clear from their Reasons that they assumed that it was sufficient for them to find,
as they did, that there was some obligation (however small in relation to the contract as a whole) personally to
execute any work or labour. That in itself is enough to demonstrate that the Industrial Tribunal erred in law.
However, I would go further. I respectfully disagree with the finding of the Employment Appeal Tribunal that there
was evidence (which even they describe as undoubtedly extremely thin ) to suport an obligation on the part of
Mr. Stark to be personally involved in the actual day-to-day performance of his contract with Mirror Group
Newspapers. Now where in its Reasons does the Industrial Tribunal refer to that evidence. It seems to me highly
significant that the Industrial Tribunal's finding of fact, in paragraph 17, is
that the personal involvement of the individual nominated as a wholesale agent is material to the offer of that
agency.
From that it draws a wholly unjustified inference:
that this, in itself, does require that the individual be directly involved at least in terms of overall day-to-day
supervision of the work carried out by his or her agency.
Nor does it surprise me that the Industrial Tribunal's finding on this central issue is expressed as a matter of
inference, since a close examination of the detailed notes of evidence discloses no direct evidence of the
existence of such an obligation.
I would go further still. Even if there had been proper evidence of the existence of such an obligation of personal
supervision of the work of the wholesale distribution business, no reasonable Industrial Tribunal, properly
directing itself as to the correct legal test, could have come to the conclusion on the evidence taken as a whole
which I have not attempted to set out in this judgment that the dominant purpose of the contract was for
personal execution of work or labour. It is clear beyond a peradventure that the dominant purpose of the contract
was for the efficient distribution in the South Sheffield and North Derbyshire areas of the two Sunday newspapers
published by Mirror Group Newspapers. I agree with the minority view of Mr. Scott in the Employment Appeal
Tribunal.
For all these reasons I would allow this appeal and hold that the Industrial Tribunal had no jurisdiction to entertain
Mrs. Gunning's complaint.
SIR DAVID CAIRNS:
I agree with both the judgments that have been delivered.