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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Edmonds v Lawson & Anor [2000] EWCA Civ 69 (10 March 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/69.html
Cite as: [2000] IRLR 391, [2000] EWCA Civ 69, [2000] ICR 567, [2000] QB 501, [2000] 2 WLR 1091
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Case No: QBENF 1999/1019/A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
In the Court of Appeal on appeal from the High Court
of Justice, Queen's Bench Division
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 10 March 2000
LORD CHIEF JUSTICE
Of England and Wales
(Lord Bingham of Cornhill)
LORD JUSTICE PILL
and
LADY JUSTICE HALE
REBECCA JANE EDMONDS |
Claimant | |
- v - |
||
MICHAEL
LAWSON, RUPERT PARDOE & |
Defendants |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
James Goudie QC, Sean Jones and Anya Proops (instructed by the General Council of the Bar) for the defendants
Robin Allen QC and Paul Epstein (instructed by the General Council of the Bar)
for the claimant
Judgment
As Approved by the Court
Crown Copyright ©
LORD CHIEF JUSTICE:
1. This is an appeal by the defendants against a decision of Sullivan J made on 24 September 1999 when he held that the claimant, a pupil barrister, was entitled to be paid the national minimum wage during her pupillage.
2. She brought the proceedings against Mr Michael Lawson QC, the head of the
chambers in which she was a pupil, and against two junior members of the
chambers, to each of whom she was assigned as a pupil for six months of her
12-month pupillage. Counsel on both sides are instructed by the General
Council of the Bar, and the proceedings are devoid of acrimony; but the parties
make sharply conflicting submissions on the issues which lie at the heart of
this appeal, which are whether there was any contract between the claimant and
the members of the chambers where she was a pupil and, if there was, whether it
was a contract of employment within the meaning of the National Minimum Wage
Act 1998.
3. The claimant, born on 1 November 1968, is now aged 31. She graduated from
Oxford with a good degree in English and worked in the IT industry for some
time before deciding to become a lawyer. She undertook an MA course in
Environmental Law and Conservation at the University of Kent at Canterbury and
graduated with a first class mark in 1996. She then studied successfully for
the common professional examination at the University of Westminster. By this
stage she had set her sights on practice at the Bar, and to that end she did a
number of mini-pupillages and spent time in the prosecuting department of the
Ministry of Agriculture. Before enrolling for the Bar Vocational Course at the
Inns of Court School of Law, which she did in the Autumn of 1997, she made
application for a pupillage through the Pupillage Applications Clearing House
scheme, and after a series of interviews was offered a funded 12-month
pupillage at a set of common law chambers in The Temple. During her year at
the ICSL, for reasons which do not matter for present purposes, she decided to
seek a career at the criminal Bar: having obtained her release from the common
law chambers already mentioned, she accordingly contacted a number of sets of
chambers specialising in crime to see if any places for pupils remained for the
year beginning in the autumn of 1998. In due course she was invited for
interview at Mr Lawson's chambers at 23 Essex Street, a large and
highly-regarded set of criminal chambers. After two interviews, the first
largely exploratory, the second intended to test the claimant's aptitude for
criminal practice, the head of the chambers Pupillage Committee offered her an
unfunded 12-month pupillage at the chambers. The offer was made over the
telephone on 21 August 1998 and was confirmed in writing the same day. The
claimant accepted the offer over the telephone, and as requested wrote on 1
September 1998 to accept the offer made in the letter to her.
4. The claimant had already gained some information about pupillage from
material published by the Bar Council, from talks on the subject at the ICSL
and from the Inner Temple of which she was a member. On arrival at 23 Essex
Street as a pupil she was given a document entitled "Selection of Pupils, Pupil
Training and Recruitment", to which a Pupillage Code was appended. She also
received a pupillage checklist, listing the requirements which had
substantially to be met during the first six months of pupillage in order in
qualify for the issue of a provisional practising certificate. The second
defendant acted as the claimant's pupil-master for her first six months of
pupillage, during which she attended the courts, attended three training
courses (two of them paid for by the chambers) and carried out the tasks
necessary to qualify her for a provisional practising certificate, which she
gained in April 1999. During the second six months of the pupillage, during
which the third defendant was her pupil-master, the claimant spent a
significant amount of time working on her own account, for which she was paid
either privately or by the Legal Aid Board. She devilled one piece of work for
a member of the chambers (not named in these proceedings) who paid her
£150.
5. In years past, as Sullivan J. helpfully explains in the course of his lucid
judgment, pupillage was a very informal, personal, hit-or-miss affair. While
some pupil-masters conscientiously ensured that pupils were properly trained
and educated in the professional skills and ethical standards required for
practice at the Bar, others relied very largely on the capacity of an apt
pupil, exposed over months to the incidents of a busy practice, to recognise
the skills and learn the lessons which would fit him or her for professional
practice. Save that the pupil would proffer a traditional fee of 100 guineas
at the outset of a 12-month pupillage, which the pupil master might or might
not choose to accept, the master-pupil relationship lacked any structure.
There was no curriculum, and no formal monitoring of performance by master or
pupil. The pupil's work experience would largely depend on the work which came
the pupil-master's way during the term of the pupillage, and his future
prospects would very much depend on the personal rapport he established
with his pupil-master (and, in some cases, on the judgment of an experienced
clerk). The system, if it be so described, did not exclude the possibility of
partiality and prejudice, and the playing field on which pupils competed was
not always level.
6. Since then, the relationship of pupil-master and pupil has been transformed.
The reasons for this transformation are not immediately germane to the issues
on this appeal; but heightened recognition that access to a profession should
be open and fair and that the public are entitled to require high standards of
competence and professionalism from those holding themselves out as skilled
legal practitioners no doubt played a part. The documents before the court in
this case, to which reference will be made below, reflect this transformation.
The emphasis in the documents is, as we read them, twofold: first, to ensure
so far as possible that the process of recruiting and selecting pupils is open,
fair, objective and non-discriminatory; and secondly to ensure, again so far as
possible, that pupils uniformly receive thorough, structured and monitored
training and education in the practical and ethical aspects of practice in
their chosen field at the Bar to complement the academic knowledge and skills
which, by this stage of their careers, they should already possess.
7. The Act and the Regulations
8. The object of the National Minimum Wage Act 1998 was not, as we understand,
to enlarge the categories of those entitled to be paid wages but to ensure that
those entitled to be paid wages are not paid at anything less than a specified
minimum level. Certain classes of worker were specifically included within the
scope of the Act, such as crown servants (section 36), and staff of the House
of Lords (section 38) and the House of Commons (section 39). Others are
expressly excluded, such as members of the armed services (section 37), share
fishermen (section 43), unremunerated voluntary workers (section 44),
residential members of religious and other communities (section 44A) and
prisoners (section 45). Section 1 of the Act, so far as relevant, provides:
"(1) A person who qualifies for the national minimum wage shall be remunerated
by his employer in respect of his work in any pay reference period at a rate
which is not less than the national minimum wage.
(2) A person qualifies for the national minimum wage if he is an individual who
-
(a) is a worker;
(b) is working, or ordinarily works, in the United Kingdom under his contract;
and
(c) has ceased to be of compulsory school age.
(3) The national minimum wage shall be such single hourly rate as the Secretary
of State may from time to time prescribe."
9. Section 54 of the Act contains definitions crucial to this appeal:
"(2) In this Act "contract of employment" means a contract of service or
apprenticeship, whether express or implied, and (if it is express) whether oral
or in writing.
(3) In this Act "worker" ... means an individual who has entered into or works
under (or, where the employment has ceased, worked under) -
(a) a contract of employment; or
(b) any other contract, whether express or implied and (if it is express)
whether oral or in writing, whereby the individual undertakes to do or perform
personally any work or services for another party to the contract whose status
is not by virtue of the contract that of a client or customer of any profession
or business undertaking carried on by the individual;
and any reference to a worker's contract shall be construed accordingly."
10. Section 2 of the Act empowers the Secretary of State to make regulations governing hourly rates and other matters pertinent to calculation of the minimum wage. Section 3 empowers the Secretary of State to make regulations in relation to persons under the age of 26 or who are participating in a scheme designed to provide training, work experience or temporary work. In the case of such persons the Secretary of State may by regulation prevent them from being persons qualifying for the national minimum wage or may prescribe that they shall receive a national minimum wage other than that prescribed for others. There is a duty on employers to keep records (section 9), there are enforcement provisions and offences are created (section 31). Section 28(1) provides that where in civil proceedings any question arises whether an individual qualifies for the national minimum wage, it shall be presumed that he does qualify unless the contrary is established.
11. We were referred to the National Minimum Wage Regulations 1999 (SI 1999 No. 584). Regulation 12 provides:
"(2) A worker who -
(a) has not attained the age of 26,
(b) is employed under a contract of apprenticeship or, in accordance with
paragraph (3), is to be treated as employed under a contract of apprenticeship,
and
(c) is within the first 12 months after the commencement of that employment or
has not attained the age of 19,
does not qualify for the national minimum wage in respect of work done for his
employer under that contact.
(3) A worker is to be treated as employed under a contract of apprenticeship
for the purposes of paragraph (2)(b) if, and only if, he is engaged under the
arrangements made by the Government known as Modern Apprenticeships."
It is because the claimant is over 26 that she is said to qualify for the
minimum wage. The regulation goes on to make detailed provisions governing
workers participating in schemes designed to provide them with training, work
experience or temporary work.
12. The regulation of pupillage
13. Part V of the Consolidated Regulations of the Inns of Court in force at the
relevant time contained very detailed provisions concerning pupillage.
Satisfactory completion of 12 months' pupillage is a necessary qualification
for private practice at the Bar. A provisional practising certificate must be
obtained on completion of the first 6 months' pupillage if the pupil is to
progress further. Such a certificate entitles the pupil to practise on his own
account during the second 6 month period. A full practising certificate must
be obtained at the end of 12 months. Regulation 54 lays down the duties of a
pupil. The first paragraph only is relevant for present purposes:
"During each pupillage or period of alternative service it is the duty of the
pupil to be conscientious in receiving the instruction given, to apply himself
full time thereto, to preserve the confidentiality of every client's affairs,
and to comply with such other rules or guidelines relating to pupillage as may
be approved from time to time by the Bar Council in consultation with the Inns'
Council (including the Code of Conduct)."
14. The duties of a pupil-master are set out in Regulation 54A:
"The duties a Pupil-Master are set out in Part II of Annex A to the Code of
Conduct, or such other rules or guidelines relating to pupillage as may be
approved from time to time by the Bar Council in consultation with the Inns
Council."
15. The Code of Conduct of the Bar of England and Wales in force at the
relevant time required barristers in independent practice to have regard to the
published guidance issued from time to time by the Bar Council concerning
pupillage (paragraph 304) and required heads of chambers to take all reasonable
steps to ensure that proper arrangements were made in their chambers for
dealing with pupils and pupillage (paragraph 305). Part VII of the Code
contained sections on pupil-masters and pupils:
"Pupil-masters
701.1. A barrister who is a pupil-master must
(a) comply with Part V of the Consolidated Regulations of the Inns of Court (reproduced in Section 4 of the Code);
(b) comply with the relevant requirements of paragraphs 304 and 305;
(c) take all reasonable steps to provide his pupil with adequate tuition and
experience.
701.2. Subject to paragraph 701.3. a barrister must remunerate any pupil (or
in the case of an employed barrister ensure that a pupil is remunerated) for
any work done for him which because of its value to him warrants payment.
701.3. Paragraph 701.2. shall not apply in the case of a pupil who is in
receipt of an award which is paid by the chambers in which he is a pupil on
terms that it is in lieu of remuneration which he might otherwise expect to
receive from his pupil master or any other barrister.
Pupils
702. A barrister who is a pupil (whether in chambers or with an employed
barrister) must:
(a) comply with Part V of the Consolidated Regulations of the Inns of Court (reproduced in Section 4 of the Code);
(b) apply himself full-time to his pupillage save that a pupil may take
part-time employment which does not materially interfere with his pupillage;
(c) preserve the confidentiality of every client's affairs and accordingly
paragraph 603 applies to him as if the clients of his pupil master and of every
barrister whom he accompanies to Court or whose papers he sees were his own
clients."
16. In Annexe A to the Code of Conduct the Bar published Pupillage Guidelines.
These required every set of chambers taking pupils to prepare a document
setting out generally its policies in relation to the choice and number of
pupils, the finance available to pupils, the role and duties of pupils in those
chambers, the pattern of pupillage, the checklist used for pupillage and the
general policy as to recruitment of tenants and pupils not taken on as tenants.
The general obligations and functions of a pupil-master were prescribed in
these terms:
"(1) He should ensure that the pupil is well grounded in the rules of conduct
and etiquette of the Bar.
(2) He should ensure that his pupil is provided with and retains the check list
referred to in Part I paragraphs C1 and C4 and completes it conscientiously and
accurately.
(3) He should require his pupil to read his papers and draft pleadings and
other documents including opinions and should require his pupil to accompany
him to court on sufficient occasions so that the pupil has the opportunity to
do all such work and gain all such experience as is appropriate for a person
commencing practice in the type of work done by the pupil master and in any
event so as to enable the pupil to complete the check list.
(4) He should take all reasonable steps to enable his pupil to see work done by
junior members of chambers.
(5) He should require his pupil to attend at least sufficient conferences to
enable the pupil to obtain experience in how to conduct a conference.
(6) In the second six months he should take a direct interest in and monitor
all work his pupil does on his own. In particular he should in relation to
court appearances by his pupil give assistance before he goes into court and
the opportunity for discussion afterwards. He should however take all
reasonable steps to ensure that his pupil does not do so much work of his own
that his pupillage is impaired.
(7) He should encourage a relationship between himself his chambers' colleagues
and his pupil whereby the pupil is encouraged to discuss problems and receive
information on matters relating to practice and etiquette. He may and in
appropriate circumstances should arrange for his pupil to spend time with and
see the work of other members of chambers.
(8) He must if it is proper for him to do so provide for his pupil the
appropriate certificate required by the pupil pursuant to the Consolidated
Regulations at the end of each relevant period of pupillage or take the
necessary steps to ensure that some other person entitled by the Consolidated
Regulations to sign such a certificate does so."
The obligations and functions of the pupil were not prescribed. An expanded
version of the Pupillage Guidelines was issued in 1998: this elaborated the
duties of the pupil-master but made no reference to the duties of the pupil.
17. In 1998 the Bar published a Pupillage File intended to promote good
practice and greater consistency between pupillages. Section 1.2 was entitled
"The duties of pupils". The first part of this section dealt with
registration. There followed a section on conduct:
"1.2.2. Conduct
Section 702 of the Code of Conduct and Part V of the Consolidated Regulations
set out your duties during pupillage. You are required to be conscientious in
receiving the instruction given and to apply yourself full-time to your
pupillage (save that you may take part-time employment that does not materially
interfere with it). You are required to preserve the confidentiality of every
client's affairs, including clients of your pupil master/mistress and other
barristers with whom you work. You must also comply with any other rules or
guidelines relating to pupillage which are approved by the Bar Council. The
rules which the Bar Council has approved in relation to continuing education
during pupillage are set out in section 2.3.5."
The duties of pupil-masters were specified by reference to Part II of Annex A
to the Code of Conduct and the expanded guidelines referred to above. Holidays
and hours were a matter to be agreed between pupil-master and pupil. A
handbook on "Chambers, Pupillages and Awards" issued by the Bar Council made
reference to the new economic and competitive climate in which the Bar had to
compete and laid emphasis on greater competition and higher professionalism as
the watchwords of the profession.
18. The document in which Mr Lawson's chambers outlined their pupillage
prospectus described pupillage as "a professional apprenticeship". The
chambers Pupillage Code provided:
"(1) There must be a total two-way commitment between pupil and pupil
master."
It went on to provide:
"(5) Pupils should be encouraged to do research, preparation and other work to
assist members of chambers other than pupil masters BUT no requests to do such
work should be made without first clearing it with the pupil master
concerned."
19. The first issue: was there a contract?
20. The claimant contended, and the judge held, that there was a contract
between her and all those who were members of Mr Lawson's chambers on 1 October
1998, made by the chambers' offer of a 12-month pupillage and her acceptance of
that offer. Before the judge and on appeal before us the defendants resisted
that conclusion. The grounds of resistance were, first, that there was no
intent to create legal relations and, secondly, that the pupillage agreement
was unsupported by consideration moving from the claimant as promisee and so
lacked an essential ingredient of a legally binding contract.
21. Whether the parties intended to enter into legally binding relations is an
issue to be determined objectively and not by enquiring into their respective
states of mind. The context is all-important. From the defendants' point of
view the written offer of pupillage to the claimant came at the end of a long,
time-consuming and expensive process. It was also a process of great long-term
consequence to them since, although barristers in practice are independent
self-employed practitioners, it is of benefit to all, at every level, that
chambers as a whole consist of talented and hardworking members, and the
defendants' like other chambers recruit most of their tenants from the pool of
those recruited as pupils. So, quite apart from considerations of professional
duty and the public interest, it is of direct practical consequence to chambers
to attract and select the ablest pupils. That is why, in part at least, many
chambers including the defendants' fund pupillages for a proportion of their
pupils, sometimes very generously. From the pupil's point of view, obtaining a
pupillage in a flourishing set of chambers practising in the pupil's chosen
field is a step with potentially immense consequences, both professional and
financial, in both the short and the long term. Obtaining a pupillage does not
of course guarantee a tenancy, but it guarantees the pupil an opportunity to
show his quality and thereby seek a tenancy. When, as the culmination of a
long process of application, short-listing and interview an offer is formally
made and formally accepted it would in our judgment be surprising to infer that
the parties intended to bind themselves in honour only.
22. In arguing that there was no intent to create legal relations Mr Goudie QC
for the defendants relied on the educational nature of the arrangement,
suggesting that it lacked the characteristics of a commercial contract and
involved no payment by the pupil. It was a voluntary and gratuitous offer by
the chambers to provide education and training. He also relied on the doubt
which, he said, existed as to who entered into the arrangement on the chambers'
side. There was, he suggested, no need for a contract because the relationship
was already regulated by the documents to which reference has been made above,
and if chambers should resile from a undertaking to provide pupillage the pupil
would have ample redress through the Bar disciplinary machinery, which would in
practice preclude such dishonourable behaviour. The absence of written terms
and conditions, he argued, pointed strongly against any intention to contract.
23. Neither singularly nor cumulatively do we find these points in any way
persuasive on the question of intent. It is true that the content of the
arrangement was educational, but as already pointed out the practical
implications of the arrangement for both parties were potentially very
significant and, subject to the point on consideration discussed below, there
is no reason why a binding contract cannot be made for the provision of
education and training. Whereas once the arrangement of pupillage was a
one-to-one engagement between pupil and pupil-master, that has ceased to be so,
as evidenced by the responsibility imposed on and accepted by heads of
chambers, by the procedure in practice adopted by chambers and by the
management of pupillage as a chambers responsibility. The claimant was not
interviewed, nor was the offer of pupillage made, by either of those who became
her successive pupil masters, and when the offer was made and accepted she did
not know who they would be. The regulatory materials governing pupillage (only
a small part of which we have quoted) were impliedly incorporated by reference
into the arrangement made between the parties, and to that extent the terms of
the arrangement were recorded in writing; but the functions and obligations of
the parties were so clearly specified in these materials that any detailed
negotiation of terms and conditions to be recorded in a written agreement
between the parties was rendered unnecessary. It is of course unlikely that
any chambers, certainly any reputable chambers, having made an offer of
pupillage which has been accepted, would resile from that arrangement without
very good reason, but the existence of a disciplinary sanction does not in our
view point against the existence of a contract. To our mind this arrangement
had all the characteristics of a binding contract. It makes no difference
that, if the pupil defaulted, the chambers would be most unlikely to sue; the
same is true if an employer engages a junior employee under an employment
contract which is undoubtedly binding, and the employee fails to turn up on the
appointed day.
24. The defendants' argument on consideration is, we think, much stronger, for
while chambers undertake to provide a closely prescribed curriculum of
education and training the pupil no longer pays any fee and does not in our
view undertake to do anything beyond that which is conducive to his or her
education and training. In working on the pupil master's papers (making
factual summaries, or drafting chronologies, or writing advices or preparing
pleadings) the pupil will be seeking to acquire, under the tutelage of the
pupil master, the skills of a professional adviser, pleader and advocate, even
though the pupil-master will often benefit from the pupil's work and from
discussion with him. If the pupil carries out legal research or keeps a note
in court, he is again learning and applying professional skills necessary for
practice. If the pupil produces any work of real value, whether to the pupil
master or any other member of the Bar, the beneficiary is under a professional
duty to remunerate the pupil. While any pupil of ordinary common sense would,
if asked, carry out mundane tasks (such as photocopying authorities or making a
cup of tea) which do not in any way promote his professional development there
is in our view no obligation or duty on the pupil to do anything for the
pupil-master which is not conducive to his own professional development.
25. This conclusion, if correct, would we think be fatal to any argument that
there was a contract between the pupil and the individual pupil-master, for the
pupil would provide no consideration for the pupil-master's educational
services. But the claimant does not rely on any contract said to have been made
with an individual pupil-master and we think a broader view has to be taken of
the relationship between chambers and pupil. For reasons on which we have
already touched, members of chambers have a strong incentive to attract
talented pupils, and their future prospects will to some extent depend on their
success in doing so. The funding of awards is not an exercise in pure altruism
but reflects an obvious (and wholly unobjectionable) element of self-interest.
The agreement of the claimant and other pupils to undertake pupillage at
chambers such as the defendants' provides a pool of selected candidates who can
be expected to compete with each other for recruitment as tenants. We do not
regard this argument as undermined by the fact that some pupils who are
accepted as such may be regarded as unlikely candidates for tenancy. The
process must be viewed in the round, and not on a pupil by pupil basis, and
chambers may well see an advantage in developing close relationships with
pupils who plan to practise as employed barristers or to practise overseas. On
balance we take the view that pupils such as the claimant provide consideration
for the offer made by chambers such as the defendants' by agreeing to enter
into the close, important and potentially very productive relationship which
pupillage involves.
26. We agree with the judge, although for somewhat different reasons, that the
claimant did make a legally binding contract with the defendants.
27. The second issue : if there was a contract, was it a "contract of
employment"?
28. To be entitled to the national minimum wage a person must, under section
1(2)(a) of the Act, be "a worker". Subject to the issue raised by the
claimant's cross-appeal discussed below, "a worker" is someone who has entered
into or worked under a "contract of employment" (section 54(3)(a)). A
"contract of employment" means a contract of service or apprenticeship, whether
express or implied, and (if it is express) whether oral or in writing (section
54(2)). It was not argued in this case that the claimant had entered into or
worked under a contract of service. The argument was that the claimant had
entered into or worked under a contract of apprenticeship. That is the
argument which the judge accepted, and which the defendants now challenge.
29. A contract of apprenticeship is, in law, a contract with certain features
peculiar to itself. It is, for instance, less readily terminable by the
employer than an ordinary contract of employment (see, for example, Newell
v. Gillingham Corporation [1941] 1 All ER 552; McDonald v. John Twiname
Ltd [1953] 2 QB 304; Wallace v. CA Roofing Services Ltd [1996] IRLR
435). While there has since 1814 been no requirement that a contract of
apprenticeship be made by deed, it remains the law that an executory contract
of apprenticeship, to be enforceable, must be made in writing (Kirkby v.
Taylor [1910] 1 KB 529; McDonald v. John Twiname Ltd, above;
Wallace v. CA Roofing Services Ltd, above). An oral contract of
apprenticeship, although legally valid, is unenforceable unless and until acted
upon. Since section 54(2) appears to contemplate an oral or even an implied
contract of apprenticeship, we infer that Parliament intended a relatively
unlegalistic view to be taken of what modern apprenticeship entails (although
we note that the draftsman of the Regulations distinguished between a worker
employed under a contract of apprenticeship and a worker who was to be treated
as so employed). In our judgment Parliament probably intended to cover
contracts of apprenticeship strictly so called and also relationships
equivalent thereto, which would be quite as appropriate to learned professions
as to skilled trades or crafts. We note that in The Parish of St
Pancras case (see below) an attorney's clerk, articled by indenture, was
held to be an apprentice and to gain a settlement as such for poor law
purposes.
30. A contract of apprenticeship or any equivalent contract is in our judgment
a synallagmatic contract in which the master undertakes to educate and train
the apprentice (or pupil) in the practical and other skills needed to practise
a skilled trade (or learned profession) and the apprentice (or pupil) binds
himself to serve and work for the master and comply with all reasonable
directions. These mutual covenants are in our judgment cardinal features of
such a relationship. This is in our view borne out by authority. In The
Parish of St. Pancras, Middlesex v. The Parish of Clapham, Surrey (1860) 2
El. & El. 742 at 749 Cockburn CJ said:
"As to the first point, in legal acceptation an apprentice seems to be a person
who is bound to and who serves another, for the purpose of learning something
which the other is to teach him."
Crompton J. at page 752 agreed:
"The meaning, in law, of the word "apprentice" is well known. He is a person
bound to serve a master who is bound to teach him. Such was the meaning of the
term, when the statute [of 1814] passed, no less than it is at present."
Blackburn J., at page 754, took the same view:
"I have always thought that by "apprentice" is meant one who gives his services
in order to be taught."
In the more recent case of Waterman v. Fryer [1922] 1 KB 499 at 506
Shearman J. expressed a similar view:
"The authorities show that in the early days there was the greatest reluctance
to break any contract of apprenticeship. It was considered of very great
importance that children should be taught a trade, and the Courts, in view of
the great power which masters then had over apprentices, who generally resided
with them, held that the obligation of the apprentice to serve and that of the
master to teach were not interdependent but independent covenants. It was at
the bottom of the reasoning in the older cases that the master could make the
apprentice serve, even though the latter was unwilling."
31. Authoritative commentators have taken a similar view. In Apprenticeship
Law (Myer, 1910), it was said at page 12:
"The apprentice must obey all the lawful commands of his master in connection
with the business."
In the Report of an Enquiry into Apprenticeship and Training addressed
to the Ministry of Labour in 1928, apprenticeship was described at page 7 as
"the contractual relationship between an employer and worker under which the
employer is obliged to teach the worker or to cause him to be taught any trade
or business and in consideration of such teaching the worker is to serve the
employer as an apprentice throughout an agreed period on stated terms."
32. The obligation of the apprentice to serve is reflected, for example, in the
specimen form of indenture annexed by Myer to his work already cited, whereby
"the Apprentice with the consent of the Parent doth hereby place and bind
himself with and to the Master during the term aforesaid during all which time
the Apprentice shall faithfully honestly and diligently serve him the Master
and obey and perform all his lawful and reasonable commands and requirements
...".
This language has an old-fashioned ring, and was designed for a minor becoming
an apprentice in a skilled trade. We have, however, been supplied with a
specimen form of contract issued by the Law Society for contracts between
solicitors and trainee solicitors. Under this document the trainee solicitor
covenants:
"13. The Trainee Solicitor will:
(a) carry out duties given by partners or employees of [the Training
Establishment] faithfully and diligently and follow all reasonable
instructions; ..."
33. We have cited above, in relation to consideration, every statement known to
us of a pupil's duty and obligation. As already indicated, we can find no
trace of any duty or obligation binding on the pupil to do anything not
conducive to the pupil's own training and development. Where such obvious care
has been taken to express the duty of pupil-master and pupil, it would not in
our view be right to imply any duty, and it is by no means clear how any
implied duty would be expressed. While any well-advised pupil would seek to
commend himself to his pupil-master by doing anything within reason which the
pupil-master wanted, this has no bearing when the issue relates to the content
of a contractual relationship. It seems to us quite clear that a pupil-master
could not withhold from a pupil any certificate needed by the pupil to enable
him to practise on the ground of any failure not directly related to the
education and training of the pupil. This was not an argument which was
addressed to the judge in quite this form, and he accordingly made no specific
finding upon it. It must attract the scepticism which attaches to any argument
originating with the court. It was, however, adopted with some enthusiasm by
Mr Goudie, and we see no effective answer to it.
34. Since the issue in this case is whether pupil barristers aged over 26 are
entitled to be paid the national minimum wage, it cannot be conclusive that
pupils are not now generally paid. This is true even of funded pupils since,
as we understand, chambers grants are treated as professional earnings for tax
purposes only in part. But the fact that the generality of barrister pupils
have been unpaid, not just in the distant past but also in modern times, is in
our view of significance in determining whether a relationship of or equivalent
to apprenticeship exists. For although trade apprentices have always received
reduced wages, reflecting both the value of the practical training they receive
and their reduced productivity, they have always in modern times received some
wages and in earlier times received board and lodging. In Dunk v. George
Waller & Sons Ltd [1970] 2 QB 163 at 169 Widgery LJ said:
"A contract of apprenticeship secures three things for the apprentice: it
secures him, first, a money payment during the period of apprenticeship;
..."
While solicitors' articled clerks may once have been in very much the same
position as pupil barristers, they have in more recent times been entitled to
payment. The fact that pupil barristers have up to the present been unpaid in
our view reflects the lack of expectation that they will render services of
value; hence the requirement in the Code of Conduct that, if they do produce
work of value, they shall be paid.
35. The freedom of a pupil who has obtained a provisional practising
certificate to practise during the second six months of pupillage, not for the
benefit of the chambers or the pupil master but for his own sole benefit and
reward, would be highly anomalous if this were anything approaching an orthodox
employment or apprenticeship relationship. While a small point in itself, it
is in our view another pointer against such a relationship. A pupil-master's
lack of formal control or disciplinary power over a pupil is not in our view of
significance in a relationship between two members of a learned profession.
36. Differing from the judge, although in large measure on the strength of an
argument not addressed to him, we conclude that the claimant did not enter into
or work under a contract of apprenticeship or an equivalent contract.
37. The third issue : section 54(3)(b)
38. The claimant has raised by notice of cross-appeal an argument based on
section 54(3)(b) which the judge rejected. In our view he was right to reject
it.
39. The argument was that if the claimant had not (contrary to other
submissions) entered into or worked under a contract of service or
apprenticeship, she had entered into or worked under another contract whereby
she undertook to do or perform personally work or services for another party to
the contract whose status was not, by virtue of the contract, that of a client
of a profession carried on by the claimant. As put in the respondent's notice,
the contract between the claimant and the defendants was one whereby the
claimant undertook to do or perform personally work or services for any
assigned pupil master or other members of chambers as might reasonably be
requested of her during her pupillage. When the claimant performed work or
services during pupillage for any assigned pupil master or other member of
chambers those individuals were not (it was pleaded) clients of the claimant.
40. In our view there are two conclusive answers to these contentions. The
first is that by the contract made with the defendants the claimant did not,
for reasons already given, undertake to do or perform any work or services for
any member of the defendants' chambers. The second is that if and to the
extent that the claimant on an ad hoc basis undertook any work for any member
of the defendants' chambers for which, by virtue of the Code of Conduct, she
was entitled to be paid, the beneficiary of her work was in our view a client
of the claimant for purposes of the professional practice carried on by her.
Such earnings would, we think, be taxable as a professional receipt, and we see
no anomaly in regarding the beneficiary of her professional work as a client.
Even if the claimant were entitled to be paid the national minimum wage for the
work which she devilled for an unnamed member of chambers, and this is not the
case which the claimant makes, we have no reason to think that the £150
she received was less than the national minimum wage would have been.
41. In the result we allow the defendants' appeal and dismiss the claimant's
cross-appeal. In our judgment the claimant was not "a worker" within the
meaning of the 1998 Act. Both parties have sought a ruling on the issue of
legal principle raised, and this we have endeavoured to give. We were not
addressed on the potentially far-reaching questions of policy which arise, and
which are better considered elsewhere.
42. This is the judgment of the court.