Carmichael and Another v National Power Plc: HL 24 Jun 1999

Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence between the parties in March 1989 constituted a contract, which was to be classified as a contract of employment. The industrial tribunal rejected this case and found that, when not working as guides, the claimants were not in any contractual relationship with the respondent. The tribunal made this finding on the basis of: (a) the language of the correspondence; (b) the way in which the relationship had operated; and (c) evidence of the parties as to their understanding of it.
Held: The approach had been correct.
Staff who worked only as and when required, and who then had the right to turn down work offered were not employees and were not therefore entitled to written particulars of employment. The absence of mutuality and the discontinuity of any contractual relationship in between occasions when work was offered showed that the parties had not understood it as a relationship of continuous employment. Unless the parties to an agreement had agreed that a document or series of documents was intended to constitute an exclusive record of their agreement, any question arising as to the nature or terms of the contract was a question of fact, to be determined upon consideration of all the evidence, including written documents, oral statements and conduct.
Lord Hoffmann said: ‘The evidence of a party as to what terms he understood to have been agreed is some evidence tending to show that those terms, in an objective sense, were agreed. Of course the tribunal may reject such evidence and conclude that the party misunderstood the effect of what was being said and done.’
Lord Irvine of Lairg LC said: ‘it would only be appropriate to determine the issue in these cases solely by reference to the documents in March 1989, if it appeared from their own terms and/or from what the parties said or did then, or subsequently, that they intended them to constitute an exclusive memorial of their relationship. The industrial tribunal must be taken to have decided that they were not so intended but constituted one, albeit important, relevant source of material from which they were entitled to infer the parties’ true intention’
Lord Chancellor Lord Goff of Chieveley Lord Jauncey of Tullichettle Lord Browne-Wilkinson Lord Hoffmann
Times 23-Nov-1999, Gazette 01-Dec-1999, Gazette 17-Dec-1999, [1999] 4 All ER 897, [1999] UKHL 47, [1999] 1 WLR 2042, [2000] IRLR 43, [1999] ICR 1226
House of Lords, Bailii
England and Wales
Citing:
Appeal fromCarmichael and Lesse v National Power Plc CA 29-Jan-1997
Casual workers employed under ‘nil hours’ relationship still had a contract of employment and the appropriate and associated rights. A court was fully able to determine the terms of the contract. . .
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 . .
CitedNethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
CitedMoore v Garwood CEC 1849
The plaintiff sued to recover a deposit which he had paid in 1845, at the height of the great Victorian railway boom, for shares in a proposed railway company. The scheme was afterwards abandoned and the company never incorporated. Whether he was . .
CitedMoore v Garwood CEC 1849
The plaintiff sued to recover a deposit which he had paid in 1845, at the height of the great Victorian railway boom, for shares in a proposed railway company. The scheme was afterwards abandoned and the company never incorporated. Whether he was . .
CitedDavies v Presbyterian Church of Wales HL 1986
A minister of the Presbyterian Church of Wales who had been inducted pastor of a united pastorate in Wales claimed unfair dismissal.
Held: If the existence or otherwise of the relationship of employer and employee is dependent solely upon the . .
At EATCarmichael and Another v National Power Plc EAT 25-Apr-1996
. .
CitedCarmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .

Cited by:
CitedRaymond Franks v Reuters Limited, First Resort Employment Limited CA 10-Apr-2003
The appellant challenged the decision that he had not been an employee of the respondent. He had worked for them first through an agency, and come to be closer to them, but was still not paid sick pay. He complained that the tribunal had decided he . .
CitedMontgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
CitedBrook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to . .
CitedEsso Petroleum Company v Jarvis and others Brentvine Limited EAT 14-Nov-2001
The claimants had come to the employer through an agency. The issue now was whether they were the employees of the respondent. The employer said there was no mutuality of obligation, and therefore no contract, and no possible dismissal.
Held: . .
CitedDacas v Brook Street Bureau (UK) Ltd, Wandsworth London Borough Council EAT 12-Nov-2002
EAT Contract of Employment – Definition of Employee . .
CitedCable and Wireless Plc v Muscat CA 9-Mar-2006
The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user.
Held: The end-user . .
CitedLambden v Henley Rugby Football Club and Another EAT 29-May-2009
lambden_henlryrfcEAT2009
EAT CONTRACT OF EMPLOYMENT: Whether established
The Claimant was a part time Rugby Coach. The Employment Tribunal found that he had freely elected to be paid as an independent contractor though a limited . .
CitedCarmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
CitedThorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
CitedDaventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
CitedDresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
CitedUber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
CitedLehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
CitedUber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .

These lists may be incomplete.
Updated: 21 February 2021; Ref: scu.135112