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 follow the established tests, and look at the whole picture, including particularly that of control. It required ‘an irreducible minimum of obligation on each side to create a contract of service’ which test was not satisfied in this case. Three conditions are required for a contract of employment: (i) the servant agrees, in consideration for a wage or other remuneration to provide his own work and skill in the performance of some service for his master, ‘mutuality of obligation’; (ii) he agrees expressly or impliedly that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master; and (iii) the other provisions of the contract are consistent with its being a contract of service. ‘A contractual relationship concerning work to be carried out in which there is no control cannot sensibly be called a contract of employment. It is not essential that there is control of how the work should be done. In many cases, the employer or controlling management may have no more than a very general idea of how the work is done and no inclination directly to interfere with it. However, some sufficient framework of control must exist’.
Brooke, Longmore LJJ, Buckley J
Times 16-Mar-2001, Gazette 17-May-2001, [2001] EWCA Civ 318, [2001] ICR 819, [2001] IRLR 269, [2001] Emp LR 405
Bailii
England and Wales
Citing:
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 – Moore 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 . .
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 – Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd HL 1970
The parties disagreed as to the curial law of an arbitration agreement. The proper law of the building contract and the arbitration agreement was English but the reference was conducted in Scotland.
Held: Evidence of behaviour after a contract . .
Cited – Humberstone v Northern Timber Mills 16-Nov-1949
High Court of Australia – The Court was asked whether a contract was one of employment. For a number of years the owner had taken his truck at about the same time each day to the respondents’ factory where he had been given goods to deliver to their . .
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 – 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.’ . .
Cited – Express and Echo Publications Limited v Tanton CA 11-Mar-1999
A contract for services, which required the contractor to provide an alternate worker in case of sickness, could not be a contract of employment. Such a clause could not be said to require the services to be provided personally.
Mr Tanton . .
Cited by:
Cited – Ultraframe UK Limited v Clayton, Fielding and Others ChD 3-Oct-2002
The claimants asserted infringement of their registered design rights in parts used in their double glazing and conservatory units. ‘Therefore it is possible for design right to subsist in the design of the part of the article which is not excluded . .
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 – Esso 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: . .
Cited – Matthews and others v Kent and Medway Towns Fire Authority and others CA 2-Jul-2004
Part time retained firefighters claimed discrimination under the Regulations when their conditions of service were compared with those of full-time firefighters. They appealed a finding that they had been employed under different types of contract . .
Cited – Dacas v Brook Street Bureau (UK) Ltd, Wandsworth London Borough Council EAT 12-Nov-2002
EAT Contract of Employment – Definition of Employee . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 18 December 2021; Ref: scu.147463