ST IVES PLYMOUTH LTD v D HAGGERTY (2008)

EAT (Elias J (President), DG Smith, D Welch) 22/5/2008

EMPLOYMENT

CASUAL WORKERS : DISCIPLINARY PROCEDURES : MUTUALITY OF OBLIGATION : UMBRELLA CONTRACTS : COURSE OF DEALING

On the facts, an employment tribunal had been entitled to find that there were mutual obligations between an employer and a casual worker which amounted to the existence of an umbrella contract.

The appellant employer (S) appealed against a decision that there was an umbrella contract between it and the respondent employee (H) as there were mutual obligations during periods when H was not working and therefore she was able to bring a claim for unfair dismissal against S

H was employed by S as a casual worker and there was no arrangement that she would be offered or would accept a minimum amount of work over a given period

H would give S prior notice of any days during the following week on which she did not wish to work and it was accepted that there were many days when she would have chosen not to make herself available outside sickness and holiday periods

However, on one occasion H left a shift early

Disciplinary action was taken against her and she resigned and brought a claim for constructive unfair dismissal

The tribunal looked at the conduct of S and H over a long period of time to deduce their intentions and found that mutual obligations existed as it was expected that H would be available for a reasonable amount of work and she expected to be offered a reasonable amount of work

It found that its conclusion was supported by the fact that S took disciplinary action against H which continued following the termination of the work period when H left early

S submitted that the tribunal had focussed on the expectation of the parties and confused them with binding legal obligations, inferring a contractual obligation in circumstances where the conduct of H and S could be wholly explained by their mutual commercial interests.



HELD: (Mr D Welch dissenting on the issue of mutuality of obligations) (1) A course of dealing, even in circumstances where the casual was entitled to refuse any particular shift, may in principle be capable of giving rise to mutual legal obligations in the periods when no work was provided, Nethermere (St Neots) Ltd v Gardiner (1984) ICR 612 CA (Civ Div) applied

The test was not whether it was necessary to imply an umbrella contract, or whether business efficacy lead to that conclusion

It was simply whether there was a sufficient factual substratum to support a finding that such a legal obligation had arisen, O'Kelly v Trusthouse Forte Plc (1984) QB 90 CA (Civ Div) considered

It was a question of fact, not law

There was a sufficient basis in the instant case

In part it might be said that the tribunal's reasoning was finding the legal obligation arising out of the practical commercial consequences of not providing work on the one hand or performing it on the other

However there was no reason why such commercial imperatives may not over time crystallise into legal obligations

Furthermore, there were other factors which were taken into account, including the lengthy period of employment, the fact that the work was important to S and the work was regular even if the hours varied

One might also readily infer that S felt under an obligation to distribute the casual work fairly

(2) The instant tribunal would not have given any weight to the fact that S was choosing to introduce disciplinary proceedings

It was wholly consistent with the fair treatment of a true casual, who was not subject to an umbrella contract, that he should not be struck off the bank of casuals unless he had had an opportunity to meet the charges against him

The fact that the employer afforded such a fundamental right of natural justice ought not to weigh against him when determining the true nature of the relationship.

Appeal dismissed

Counsel:
For the appellant: Sinclair Cramsie
For the respondent: Saul Margo

Solicitors:
For the appellant: Dechert
For the respondent: Rowley Ashworth

LTL 9/6/2008 (Unreported elsewhere)

Judgment: Official - 15 pages

Document No. AC0117375

 

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