United Kingdom Employment Appeal Tribunal

APPEARANCES  

 

For the Appellant	Mr D Whyte, Solicitor Of- Messrs Bishops Solicitors 2 Blythswood Square GLASGOW G2 4AD
For the Respondents	Mr Alexander McBurney Solicitor 338 Dumbarton Road GLASGOW G11 6TG

SUMMARY CONTRACT OF EMPLOYMENT Whether an employee
 
LORD JOHNSTON:
1. This is an appeal by the appellant employee against a finding, amongst others, of the Employment Tribunal sitting in Glasgow, that he was not unfairly dismissed. The reason for rejecting the claim was that the Tribunal determined that the appellant was not an employee of the respondents so as to admit a claim for unfair dismissal in terms of a contract of employment, and, as a subsidiary matter, in any event, there had not been sufficient continuity of employment. However, the main issue was the former one.
2. The Tribunal's position is as follows:-

"The respondents operate a centre which consists of about 20 flats for the use of members of society who have only a limited capacity to look after themselves. In addition they operate a reception centre in connection with the flats and employ full time staff in order to run the centre. The centre has to be manned 24 hours a day, 7 days a week and the respondents found it necessary (during the period with which we are concerned) to make use of what was known as ''sessional workers" or "casual workers".

In early 2001 the applicant learned from the Project Manager, Pauline Boyd, (who is also a friend of the applicant) that there was a vacancy for a sessional worker within the respondents' organisation. He applied for the post and there was a discussion.between himself and the said Pauline Boyd concerning the terms upon which he might work for the respondents. Although we have no doubt that the said Pauline Boyd advised the applicant that there would be plenty of work for him to do, Mr McCafferty honestly accepted that she had made it clear that his hours were not guaranteed and that he would be employed depending upon the needs of the business. Equally, we have no doubt that it was the understanding of the applicant that, although he never on any occasion turned down the opportunity to work offered by the respondents, he was not bound to accept work offered to him by them. Indeed, on two occasions in 2002 he made arrangements to go on holiday and then advised the respondents that he would not be available during the period specified by him. From early 2001 until the relationship came to an end in November 2002 the applicant attended at the premises of the respondents on a regular basis and carried out work for them. The respondents production R1, is a record of the occasions upon which the applicant worked for the respondents between the commencement of that relationship and 24 November 2002 subject to the qualification that the applicant did not work for the respondents subsequent to the last mentioned date.

On 22 November 2002 the applicant was advised that the relationship between the parties would come to an end. He was given the choice of leaving immediately, or continuing to work until (and including) 24 November 2002. The applicant chose the latter option. Although there was a rather faint suggestion from Mr McBurney that the applicant was not an employee when he was actually at work, we are satisfied that he was an employee or, perhaps, a casual employee for the duration of the shift. The applicant attended at the respondents' place of business and carried out work in accordance with directions given to him by the respondents' more senior full time staff. We quite accept that the number of occasions upon which such direction would be given would be small, because the applicant knew the job well, but there can equally be little doubt that the respondents retained overall control of the organisation and of the work that the applicant was required to do. In these circumstances, we are satisfied that the applicant was an employee while actually at work.

In order to succeed in his claim that he was unfairly dismissed, the applicant must establish that he had the requisite period of employment with the respondents. Whether he so had depends upon the proper application of Part XIV of the Employment Rights Act 1996. The application of that part of the Act was considered in the case of Carmichael -V- National Power Plc (2000) IRLR 43 by the House of Lords. As we understand the matter, there can be no "employment relationship" where the parties have agreed that a worker will be employed on an "as when required" basis with the worker being free to turn down an offer of employment, and the contractor not being under any obligation to offer employment. In our view, this is precisely the state of affairs with which we are concerned, and, we are therefore satisfied that the applicant cannot succeed on the basis that there was, throughout the period of one year immediately prior to the termination of the relationship between the parties, in subsistence a contract of employment.

The foregoing does not, of course, end the matter, because the applicant is entitled, in terms of the said Section 212, to count towards the period of continuous employment any week during the whole or part of which a contract of employment is in existence. It was not in dispute that the applicant worked for the respondents during 48 of the 52 weeks immediately preceding the termination of the relationship, it being accepted by all parties that the applicant did not work between 23 May and 14 June 2002 nor between 12 and 26 August.

If we are right in our conclusion that a contract of employment between the parties was only in existence when the applicant was actually at work - at least - had actually agreed to work for specified periods, Section 210(4) of the Act must be fatal to the applicant's claim, unless he can bring himself within the provisions of Section 212(3)(c). That sub-section provides that any week during the whole or part of which an employee is absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer counts in computing the employee's period of employment.

We are satisfied that the applicant cannot bring himself within the said sub-section. There was no evidence of any custom of the kind envisaged by the sub-section and the only factor that could possibly suggest "an arrangement" was the fact that, before the applicant was absent from work in May and August 2002 he was rostered for work subsequent to his return.

We cannot read into that fact the existence of an arrangement other than an arrangement that the applicant would - to put it at its highest - be offered work on the dates and at the times specified in the rota. Even, however, if we erred in this conclusion, things are not much better from the point of view of the applicant, because, if there was an "arrangement" whereby the previously subsisting relationship between the parties continued, that relationship was not an employment relationship as that expression is used particularly in paragraph 36 of the decision in Carmichael. For these reasons, we are satisfied that the applicant does not have the necessary period of continuous service and that his complaint that he was unfairly dismissed must, therefore, fail."

3. Mr Whyte, representing the appellant, indicated to us that whatever issues had been abroad in the case, apart from a question of entitlement to claim unlawful deduction of wages, which has still to be finalised, the only issue remaining before this Tribunal related to the question of the existence of a contract of employment.
4. He submitted that the three elements that comprised such an entity, are, first of all, an obligation to work personally, secondly, an existence of mutuality of obligation between the parties, and, thirdly, the issue of control. He rightly concentrated upon the second of those issues. In essence, he maintained, that the crucial question was the fact that, upon the evidence, it should be determined that the appellant was entitled to holiday pay and that pointed strongly to the existence of mutual obligations. The case of Carmichael to which the Tribunal made reference could be distinguished because the job in that particular case was not one that was essential to the operation of the power station. In the present case it was submitted that the centre had to be manned for 24 hours a day and that gave rise to the notion of mutuality.
5. Mr McBurney's position was that the issue was a question of fact to be determined by the Tribunal at first instance in the absence of a written contract which was the case here. He referred us in that respect to Clark v Oxfordshire Health Authority [1998] IRLR 125.
6. While we find the submission of Mr Whyte in relation to holiday pay ingenious, we are concerned that it was not raised before the Tribunal and we do not, in any event, regard it as determinative. What determines this case, fatally for the appellant, is the findings of the Tribunal that he was not bound to accept the work offered to him, and, that furthermore, his hours were not guaranteed. He thus had the option to refuse an offer for whatever reason, and, indeed, on one view, did that when he went on holiday not seeking permission so to do. No one suggests that that was in any way a wrongful thing to do but it nevertheless points against there being the existence of a contract of employment with mutual obligations.
7. In any event, as Mr McBurney pointed out and with which we agree, the Tribunal applied its mind to a question of fact on the correct test. There is no suggestion of perversity in their decision, and, accordingly, it is one which they were entitled to reach and with which we will not interfere. This appeal is refused.