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 Christopher Slade summarised as follows:
‘Principles governing appeals from an industrial tribunal
At first impression one might suppose that the question whether one person is ’employed’ by another under a ‘contract of employment’ within the meaning of s.153(1) of the 1978 Act would in any case be regarded by the court as a bare question of law, since it raises the question whether there exists between the two parties the legal relationship of employer and employee. And indeed exceptionally, if the existence or otherwise of the relationship is dependent solely upon the true construction of a written document or documents, the question is treated by the court as being one of law, so that an appellate tribunal or court is free to reach its own conclusion on the question without any restriction arising from the decision of the tribunal below (Davies v Presbyterian Church of Wales [1986] IRLR 194).
But in the more ordinary case, where the determination of the question depends not only on reference to written documents but also on an investigation and evaluation of the factual circumstances in which the work is performed, a quite different situation arises: see Lee Ting Sang v Chung Chi-Keung [1990] IRLR 236 at p.240; Clifford v Union of Democratic Mineworkers [1991] IRLR 518 at p.520 per Mann LJ). In such a case, as these two authorities show, the responsibility of determining and evaluating all the relevant admissible evidence (both documentary and otherwise) is that of the tribunal in the first instance; an appellate tribunal is entitled to interfere with the decision of that tribunal, that a contract of employment does or does not exist, only if it is satisfied that in its opinion no reasonable tribunal, properly directing itself on the relevant question of law, could have reached the conclusion under appeal, within the principles of Edwards v Bairstow [1956] AC 14 An illuminating summary of the legal position in this context is also to be found in the judgment of Sir John Donaldson in O’Kelly v Trusthouse plc [1983] IRLR 369 at pp. 381-393.’
Citations:
Gazette 28-May-1998, [1997] EWCA Civ 3035, [1998] IRLR 125, (1998) 41 BMLR 18
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – Nethermere (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 . .
Cited – Hellyer Bros Limited v McLeod CA 1987
The employer appealed saying that the EAT had wrongly substituted its own opinion for that of the Tribunal.
Held: The appeal was rejected. Looking at the totality of the facts found or otherwise referred to in the decision of the Industrial . .
Cited – Wickens v Champion Employment EAT 1984
The claimant was an employee of the defendant employment agency. She was dismissed, but in order to succeed, she had to show that the agency had more than 20 employees. To do so she had bring the agency workers in as employees. The tribunal . .
Cited – McMeechan v Secretary of State for Employment CA 11-Dec-1996
The respondent as a temporary worker was entitled to be treated as an employee of an agency within the contract governing the particular engagement where money was due when the agency went into liquidation. He was therefore able to claim against the . .
Cited – Davies 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 . .
Cited – 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 . .
Cited – Clifford v Union of Democratic Mineworkers 1991
Where the only relevant material was documentary the question whether A is employed by B or C is a matter of law but otherwise is a mixed question of law and fact: ‘This description (a mixed question of law and fact) does not, however, in my . .
Cited – Edwards (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 – O’Kelly v Trusthouse Forte plc CA 1984
Workers claimed to be employees.
Held: They were not such. Their contract reserved the right to choose whether or not to work and for the employer not to give them work. The question of whether the facts which are found or admitted, fall one . .
Cited – City and East London FHS Authority v Duncan EAT 24-Sep-1996
‘It is not a prerequisite of a contract of service that there must be a mutual obligation to provide and perform work. It is an important, but not conclusive factor’. . .
Cited – Chadwick v Pioneer Private Telephone Co Ltd 1941
Stable J said: ‘A contract of service implies an obligation to serve, and it comprises some degree of control by the master.’ . .
Appeal from – Clark v Oxfordshire Health Authority EAT 4-Mar-1996
Whether bank nurse was an employee . .
Cited by:
Cited – 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 . .
Cited – Brook 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 . .
Cited – Cornwall County Council v Prater CA 24-Feb-2006
The claimant worked for the local authority under a series of contracts. The employer denied that she had been continuously employed and there was no ‘irreducible minimum mutual obligation necessary to create a contract of service’. There were times . .
Cited – Cable 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 . .
Cited – Launahurst Ltd v Larner EAT 18-Aug-2009
EAT JURISDICTIONAL POINTS: Worker, employee or neither
For 13 years the Claimant worked installing double glazing for the Respondent. In 2004 he signed a ‘contract supply agreement’ though matters continued . .
Cited – Autoclenz 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 . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so 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 . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 09 August 2022; Ref: scu.143434