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It is for employees, but is it mutual for workers?

A version of this article was first published in the magazine of the Employment Lawyers Association in 2011

"Mutuality of obligation" is the “irreducible minimum … necessary to create a contract of service”: Carmichael v National Power plc [2000] IRLR 43.  But what mutual obligations, if any, are necessary for there to be employment under a “contract … personally to do .. work” so as to come within the scope of anti-discrimination legislation? 

Background

The claimant was a probationary volunteer Adult Instructor in the Shropshire part of the Army Cadet Force (“respondent”).  There were “Written Terms of Service” which stated that it was his “duty … to train cadets … and to carry out administrative or other duties as detailed” and that “remuneration may be given in the form of Paid Training Days” (“PTDs”). 

There were no regular hours or regular days.  The claimant attended some training courses and similar events, some of which were PTDs and the rest of which were unpaid.  He was discharged when (not as part of a PTD) he failed a test that required him to answer questions about a booklet on cadet health and safety.  The claimant, who has learning difficulties, claimed disability discrimination.

ET’s decision

At a PHR, the ET decided the claimant was not employed under a “contract … personally to do ... work” (didn’t have “worker status”) because there was no “mutuality of obligation such that the respondent was obliged to provide work … and for the claimant to undertake the work provided”.  Accordingly,  the ET lacked jurisdiction.

In the EAT

The appeal centred on whether mutual obligations to provide and undertake work were necessary for worker status.  The claimant relied, amongst other things, on dicta that, “mutuality of obligation goes to the question whether there was a contract at all, rather than what kind of contract there was” (Cornwall County Council v Prater [2006] ICR 731) and that “mutuality is not a condition of a contract for services”, i.e. of a contract personally to do work (Muschett v HM Prison Service [2010] IRLR 451). 

The respondent relied principally on Mingeley v Pennock & Ivory t/a Amber Cars [2004] ICR 727 and South Sheffield CAB v Grayson [2004] ICR 1138, which, it was argued, indicated that there had to be both an obligation to offer and an obligation to accept work.

The EAT concluded that the claimant had to be under a contractual obligation to do some work and accordingly the appeal failed on the basis of the ET’s findings. 

The claimant’s secondary argument – that during each PTD he had worker status and that the PTDs were a series of engagements leading to one "umbrella" contract – was rejected on the basis that, unlike in Prater, ERA section 212 and continuous employment were not in play.

The claimant also relied on X v Mid Sussex CAB [2010] ICR 423 (EAT) and [2011] EWCA Civ 28 [now before the Supreme Court], said to support an argument that a contract and personal performance of services for remuneration were all that was necessary to give worker status. The EAT decided X did not alter the law and was not relevant.

Finally, the claimant argued that the discrimination alleged was closely connected to his PTDs, enabling him to claim on the authority of Relaxion Group plc v Rhys-Harper [2003] ICR 867. This argument was rejected because, amongst other reasons, the Relaxion Group case was about discrimination against former employees and didn’t enable someone engaged intermittently and not continuously to claim in respect of something occurring between engagements. 

Comment

Cases like Breakell, with a series of engagements, are potentially tricky.  Prater (amongst other cases) suggests mutuality of obligation is irrelevant during an engagement but Breakell has done nothing to tackle the apparent conflict of authority on whether it’s similarly irrelevant in the gaps between engagements; or to explain clearly where employers’ obligations begin and end. 

If I regularly engage a particular baby-sitter, she may well, when she is actually babysitting, be operating under a contract personally to work for me and so have worker status. On the authority of Breakell, however, since she probably has no ongoing contractual obligation to do future babysitting, her worker status only lasts as long as each engagement. This means if I decide, after an engagement is over, that I won’t use her services again for discriminatory reasons, my decision is not amenable to the Tribunal’s jurisdiction. What, though, of such a decision made and communicated during an engagement and/or made directly because of something that happened during an engagement? The hungry employment lawyer still has plenty of food for argument in this area.