ESM7008 - Case Law: Introduction - Preliminary Matters

Please note that the name “Industrial Tribunal” was changed to “Employment Tribunal” on 1 August 1998.

In employment status work the initial point at issue will usually be whether an engagement is made under a contract of service or a contract for services. Where there is a dispute it will be the responsibility of the initial tribunal e.g. Employment Tribunal, General Commissioners, to determine the facts based upon the evidence presented to it. Hence the importance of establishing all the facts of a case and of ensuring that they are brought out at that tribunal.

It is a well-established legal principle that higher courts can only overturn the decision of a lower court where the lower court has erred in law or has reached a conclusion which no reasonable tribunal, properly instructed, could reach.

It is also an established principle that the interpretation of a written document is a question of law. But, in the employment field, it is often the case that the parties do not intend written documents to be the sole record of their agreement. Where the intention of the parties is that the terms of an engagement are to be gathered from written documents, oral exchanges and conduct, this will be a question of fact. The judgment of Lord Hoffman in the case of Carmichael and Another v National power plc [1999] 1 WLR 2042 provides a useful summary of the law in this area.

The case of Express and Echo Publications Ltd v Tanton [1999] IRLR 367 is a good illustration of a higher court overturning a decision of a lower court because of its failure to apply established legal principles.