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

Deciding Whether person was an employee

(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.’

Lord Griffiths
[1990] ICR 409, [1990] 2 AC 374, [1990] UKPC 1, [1990] UKPC 9, [1990] IRLR 236
Bailii, Bailii, Bailii
England and Wales
CitedEdwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .

Cited by:
CitedClark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
CitedYuen v The Royal Hong Kong Golf Club PC 28-Jul-1997
(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict . .
CitedGeorge Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
CitedAutoclenz Ltd v Belcher and Others CA 13-Oct-2009
Car Valeters contracts misdescribed their Duties
The claimants worked cleaning cars for the appellants. They said that as workers they were entitled to holiday pay. The appellant said they were self-employed.
Held: The contract purported to give rights which were not genuine, and the . .
CitedHalawi v WDFG UK Ltd (T/A World Duty Free) CA 28-Oct-2014
The claimant said that she had been discriminated against on the grounds of her religion. She worked as a beauty consultant at the airport, but through a limited company. Her airside pass had been withdrawn. She now appealed against rejection of her . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 31 October 2021; Ref: scu.194297