LONDON BOROUGH OF MERTON v MRS A M THOMAS [2002] UKEAT 0301_01_0305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0301_01_0305Case No Appeal No. EAT/0301/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF MERTONAPPELLANTMRS A M THOMASRESPONDENT
Before
His Honour Judge J R ReidDate 3 May 2002
[1]APPEARANCES For the Appellant MISS M WHEELER (Of Counsel) Instructed by: London Borough of Merton Legal Services Department Civic Centre, London Road Morden For the Respondent MR R ASCOUGH Representative GMB Southern Region Legal Services Dept 205 Hook Road Chessington Surrey KT9 1EA JUDGE REID QC This is an appeal from a decision of an Employment Tribunal held at London South. The decision was promulgated on 24 January 2001 after a hearing on 2 October 2000 and consideration in Chambers on 8 December 2000. The Tribunal was concerned only with a single preliminary point and they answered the preliminary point in this manner:
"The applicant was continuously employed by the Respondents under a contract of employment for a period of more than 13 weeks ending with the date on which the Originating Application was presented to the Employment Tribunal, and accordingly the Tribunal has jurisdiction to entertain all claims presented by her."
[2]The background to the case is this. Mrs Thomas began work at the Lavender Park Playgroup in 1991. She became the senior playleader in 1997. In March 1998 she sought a pay increase which was granted in May 1998. In March 1999 a letter was sent asserting an entitlement for a contract under EU law. The employment particulars were issued on 10 April which did not entirely satisfy Mrs Thomas and she thereupon issued proceedings on 23 May. When the matter came before the Employment Appeal Tribunal they said this on the Preliminary Hearing:
"'Accordingly we would, but for one point, have concluded that the Employment Tribunal were entitled to find mutuality of obligation. That one point is that, we are told by Ms Wheeler, that in, what we think must be cross examination, the employee said, or accepted, she was under no obligation to work.' The witness statement which we have is capable of being read to the contrary effect. Such is the clarity which Ms Wheeler recollects the effect of the evidence being given that we would be uneasy in accepting of finding the fact of the Employment Tribunal that there was here an obligation to perform work, without putting that in the context of the evidence as a whole, before the Tribunal. We think it is possible that the Chairman's notes of evidence may, if they are obtained, bear out what Ms Wheeler recollects, to such an extent they might affect the view this Tribunal could reasonably take of the integrity of the finding the fact of the Tribunal. This is not necessarily the case. It would have to be considered in the light of the evidence, but we do think this is one of those cases in which we cannot properly determine this appeal against the Appellant without first seeing those notes."
The notes were provided.[3]Ms Wheeler's skeleton argument rightly says this at paragraph 4:
"The sole issue before the EAT, following a preliminary hearing and further consideration after receipt of the Chairman's Notes of Evidence, is thus whether or not there was sufficient evidence upon which the Employment Tribunal were entitled to conclude that there was mutuality of obligation."
The reference to mutuality of obligation arises from the necessity of law that there should be mutuality of obligation in order to found a contract of employment. Thus in the Carmichael case, Carmichael v National Power Plc [2000] IRLR 43 paragraph 8, the Lord Chancellor Lord Irvine of Lairg said at paragraph 9:
"The industrial tribunal held that their case 'founders on the rock of absence of mutuality,' that is that, when not working as guides, they were in no contractual relationship of any kind with the CEGB."
Going back to probably the classic starting point the way it was put by MacKenna J in Ready Mixed Concrete (South East) Ltd v Ministry of Pensions and National Insurance [1968] 2 QB 497 . 515:
"A contract of service exists if these conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.'"
Then later on:
"There must be a way or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill."
And then Stevenson LJ said:
"'There must, in my judgment, be an irreducible minimum of obligation on each side to create a contract of service. I doubt if it can be reduced any lower than in the sentences I have just quoted…'"
[4]So, the question that the Employment Tribunal had to answer was, it being accepted when she did work the Borough had to pay Mrs Thomas, was there any obligation on Mrs Thomas to work? A good deal of time and effort was devoted to the position between 1991 and 1997 when she in effect obtained promotion and considerable of effort was also devoted to the issue as to what the position might be so far as other play leaders were concerned. But we are concerned with the position that Mrs Thomas occupied as the senior play leader, not an assistant play leader, over the period from 1997 onwards.[5]The Tribunal looked at the whole of the evidence. They found as a fact that there was a mutuality of obligation because she was obliged to work. A good deal of time was spent before us analysing the fact that she did not in fact work 12½ hours a week every week, that being the maximum she could have worked namely five days at two hours of play plus ½ an hour's worth of opening up and closing up at the beginning and the end of the session. Her evidence in relation to that was that the only time she had been off was either for sickness or due to a family bereavement and to that she added at least on one occasion going to a course. She pointed out that she had to provide her services personally. She could not send along a friend or someone else to perform her duties and if she was ever sick she would always contact Lavender Park Playgroup to inform them she would not be coming in.[6]She said that as her senior play leader she was required to direct the work of the four play leaders, though the number would vary according to the ratio of children. So far as the position was concerned the number of helpers that might be needed would vary depending on the number of children because of the requirement for a set ratio of play leaders to children. Latterly it appears between themselves the members of playgroup operated their own short time scheme when fewer of them were needed. It is also clear that rotas were arranged a fortnight in advance and that if someone was going to fall out of the rota it was Mrs Thomas who was contacted.[7]The essence of the suggestion that the Tribunal's decision was wrong was based on this passage (which is a passage of the Chairman's note to which reference was made by the Employment Appeal Tribunal) in cross examination in which Mrs Thomas said:
"I am required to work 12½ hours per week if the ratio of children justifies it. I agree I do not have to be there eg when away in June (26, 27)."
A little further on:
"I should work 12½ hours if the ratio is there."
Further on she said:
"I could not send on any person to substitute."
[8]In our judgment it is impermissible to take the line "I agree I do not have to be there eg when away in June (26, 27)" and to say that that one statement oversets the totality of the picture which was painted to the Tribunal and which the Tribunal accepted. It is true she did not always have to be there because there were occasions when she was away, once unhappily for example following the death of her father. On another occasion she went in hospital for an operation and equally when the group operated their own rota for short time working whilst the number of children did not justify all of them working full time. That does not in our judgment mean that the Tribunal were necessarily wrong or formed an impermissible judgment when they took the view that this lady was bound by mutuality of obligation. She was the senior play leader. It was through her that arrangements for a replacement of persons who could not turn up according to the rota were organised. She should work 12½ hours a week if the ratio was there. Those are matters which the Tribunal were perfectly entitled to take into account. Whatever might have been the position in relation to other workers so far as the senior play leader was concerned the decision which the Tribunal reached was one which it seems to us not only were they entitled to reach but one which was on the totality of the evidence as produced before us plainly right. The appeal is dismissed.