MRS AFAGHIEH MARIA CLARK v OXFORDSHIRE HEALTH AUTHORITY (1997)

CA (Civ Div) (Beldam LJ, Schiemann LJ, Sir Christopher Slade) 18/12/97

EMPLOYMENT - CIVIL EVIDENCE - CONTRACTS

CONTRACT OF SERVICE : MUTUAL OBLIGATIONS : SINGLE ENGAGEMENT : EMPLOYEE : INDEPENDENT CONTRACTOR : TERMS : CONTRACT FOR SERVICES : CLAUSE ALLOWING PERON TO SEND SUBSTITUTE TO WORK IN HIS PLACE : OBLIGATION TO PERFORM SERVICES PERSONALLY : INTENTION OF PARTIES : OVERALL CIRCUMSTANCES

An appeal succeeded where the EAT, in making a finding that an appellant had a contract of employment, were not entitled to reach such a conclusion and on any footing had erred in law.

An appeal by a respondent from a majority decision of the EAT who found that the applicant held a contract of employment.

In April 1990 the applicant commenced her employment with the respondent as a secretary.

From 21 January 1991 she joined the "Nurse Bank" (administered by the respondent) as a staff nurse.

She received a statement of employment setting out the particulars of her employment, and remuneration at an hourly rate.

She signed a contract headed contract of employment.

The applicant worked when required at any one of three hospitals though there was no obligation upon her to accept work nor any obligation on the respondent to offer her work.

She had no fixed or regular hours of work; her pay came under the PAYE system; she had no entitlement to any pay when she did not at work; there was no action she could take to require the respondent to offer her work; and she had no entitlement to holiday pay or sick leave.

The sole issue to be determined on appeal was whether the arrangement came within the definition in s.153(1) Employment (Protection) Consolidation Act 1978 (now s.230(1) Employment Rights Act 1996).



HELD: (1) The decisions of the Court of Appeal in Nethermere (St Neots) Ltd v Gardiner (1984) ICR 612 and Hellyer Bros Ltd v Mcleod (1987) ICR 526 were binding authority for the proposition that: no "contract of employment" within the definition contained in s.153(1) (whether given the extra-statutory name "global" or "umbrella" or any other name) could exist in the absence of mutual obligations subsisting over the entire duration of the relevant period.

(2) Applying the "global contract" test propounded in McMeechan v Secretary of State For Employment (1995) ICR 444 EAT; the Chairman came to the conclusion that the applicant did not have a contract and therefore had no standing to pursue her unfair dismissal claim.

(3) The Chairman reached the only conclusion that as a matter of law was open to him because of the absence of mutuality of obligation.

It was therefore immaterial whether the test to be applied (on appeal to the EAT) was that in Edwards v Bairstow (1956) AC 14, or that in Davies v Presbyterian Church of Wales (1986) ICR 280, because the result would inevitably be the same.

(4) Neither the Chairman or the EAT had the benefit of the judgment in McMeechan (1997) ICR 549 given at a subsequent time.

The question of whether at the relevant time there existed a 'single engagement' which amounted to a contract of service was not therefore considered.

The EAT reached its' decision on the basis of the existence of a 'global contract'.

(5) No mutuality subsisted during the periods when the applicant was not occupied in a 'single engagement'.

The obligation of confidentiality binding on her during such periods would have stemmed from previous single engagements.

(6) The EAT was not entitled to reach the conclusion it did and on any footing was erroneous as a matter of law.

(7) The appeal would be allowed and the matter remitted to the Industrial Tribunal for all other issues relevant to the applicant's claim, including the 'single engagement' point, to be considered.


Mr Elias QC for the appellant. Mr McMullen QC for the respondent.

LTL 22/12/97 : (1998) IRLR 125 : (1998) 41 BMLR 18

Document No. AC8000570

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