Lee Ting Sang -v- Chung Chi-Keung; PC 8-Mar-1990

(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal correctly directing itself on the law could reasonably have reached the conclusion under appeal.’ Lord Griffiths said: ‘Whether or not a person is employed under a contract of service is often said in the authorities to be a mixed question of fact and law. . where, as in the present case, the relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work is performed, it must now be taken to be firmly established that the question of whether or not the work was performed in the capacity of an employee or as an independent contractor is to be regarded by an appellate court as a question of fact to be determined by the trial court. At first sight it seems rather strange that this should be so, for whether or not a certain set of facts should be classified under one legal head rather than another would appear to be a question of law. . [but] in O’Kelly v. Trusthouse Forte Plc. [1984] Q.B. 90 the Court of Appeal . . held that whether or not a waiter was employed under a contract of employment within the meaning of the Employment Protection (Consolidation) Act 1978 was a question of mixed fact and law, and that the finding of an industrial tribunal on this issue, from which an appeal lay on a point of law only, could only be impugned if it could be shown that the tribunal correctly directing itself on the law could not reasonably have reached the conclusion under appeal.’ and
‘Their Lordships conclude that reliance upon these two dicta culled from cases of a wholly dissimilar character, may have misled the courts below in their assessment of the facts of this case and amount in the circumstances to an error of law justifying setting aside what are to be regarded as concurrent findings of fact.
Their Lordships are further of the opinion that the facts of the present case point so clearly to the existence of a contract of service that the finding that the applicant was working as an independent contractor was, to quote the words of Viscount Simonds in Edwards v. Bairstow [1956] A.C. 14, 29, `a view of the facts which could not reasonably be entertained’ and is to be regarded as an error law.’

Court: PC
Date: 08-Mar-1990
Judges: Lord Griffiths
Links: Bailii, Bailii, Bailii,
References: [1990] ICR 409, [1990] 2 AC 374, [1990] UKPC 1, [1990] UKPC 9
Cases Cited:
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