Employment status: when is a long-serving staff member not an ‘employee’?

August 11, 2009

The question of employment status is notoriously vexed. It affects the education sector along with all other areas of the workforce. Across the Channel, the world of Gallic reality television has been shocked by a court decision that contestants in a show called L’Ile de la Tentation (Temptation Island) were in fact employees of the production company. The premise of the show was testing attached individuals’ ability to resist the overtures of single people on a sun-soaked exotic island. In a decision that may seem unlikely in neighbouring jurisdictions, the court was of the view that such activity was in effect work; as such, the participants were awarded damages in respect of the breach of their employment rights. Happily, perhaps, for the producers of British reality shows, prospective apprentices will not need to be told that they are “fired” for a fair reason under the Employment Rights Act, subject to a process compliant with the ACAS Code including an appeal hearing. Nor will angry chefs on reality cookery programmes have to curb their language to avoid facing constructive dismissal claims. This is not just because the participants lack the requisite one year of service. The decision of the Cour de Cassation does not apply here.

The Employment Appeal Tribunal considers a claim for employment status

In a more mundane decision on employment status, however, the Employment Appeal Tribunal has recently decided that a bank theatre porter was not a employee, for the purpose of being able to bring an unfair dismissal claim, because of the lack of “mutuality of obligation” between employer and employee (that is, the right of the employer to insist that the employee carry out work and the right of the employee to insist that the employer provide work). The claimant had worked as a bank theatre porter in a hospital since 1992. His usual hours of work were 20-30 per week. Two other theatre porters worked alongside him in the hospital under full-time contracts of employment. In 1997, the director of clinical services wrote to ask the claimant whether he had any interest in an offer of permanent employment on an annual hours basis. The claimant expressly stated that he wished to decline the offer and preferred to be used on an "as and when" basis, and named his fee (£4.40 per hour) and payment terms. He accepted that he had the right to refuse offers of work if inconvenient and that the hospital could cancel advance bookings if they did not need his services. He accepted in further correspondence in 1999 that there was no mutuality of obligation and that each assignment was separate; he also acknowledged that he was not required to be available to work and that there was no guarantee that work would be provided to him.

Minimum criterion of a contract of employment

The Employment Tribunal noted a case relating to casual, “as and when” tour guides, known as the Carmichael decision, which determined that mutuality of obligation is a basic minimum criterion of a contract of service. It looked at whether there was an overarching contract of employment that covered all the separate assignments on which he was engaged. The theatre porter did not argue that there was such an overarching contract, but instead sought to rely on each shift being a separate contract of employment. The theatre porter also cited a Court of Appeal case from the education sector relating to a woman, Mrs P, who had taught pupils who were outside the mainstream education system. She had done so for ten years, being engaged to deal with each pupil under a separate contract. The court in that case found that once Mrs P had taken on a pupil she was under an obligation to teach the pupil and the employer was obliged to pay her for doing so. Each individual teaching engagement was therefore a new contract of service.

Not an employee

However, the Employment Appeal Tribunal distinguished that case from the theatre porter’s circumstances. Unlike the teacher, the theatre porter’s shift was sometimes cut short, without pay. If he was no longer needed, the hospital could send him home. For this reason, it found that there was no mutuality of obligation, and the theatre porter was not therefore an employee.

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