MISS D WRIGHT v MRS G WALCOTT & MS V GIBBS T/A ELLERSLIE HOUSE OUTREACH PROJECT [2003] UKEAT 0698_02_0704

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0698_02_0704Case No Appeal No. EAT/0698/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS D WRIGHTAPPELLANTMRS G WALCOTT & MS V GIBBS T/A ELLERSLIE HOUSE OUTREACH PROJECTRESPONDENT
Before
MR COMMISSIONER HOWELL QCMS S R CORBYMR I EZEKIELDate 7 April 2003
[1]APPEARANCES For the Appellant MR T PULLEN Barrister (In House) Hammersmith & Fulham Community Law Centre 142-144 King Street Hammersmith London W6 OQU For the Respondent MR M WEST Advocacy Systems Manager Peninsula Business Services Riverside New Bailey Street Manchester M3 5PB MR COMMISSIONER HOWELL QC This is an appeal by Miss Dionne Wright against the decision of the London Central Employment Tribunal issued to the parties on 13 May 2002, to dismiss her claim for unfair dismissal against the proprietors of the residential home for young children where she had for some time been working as a residential social worker. The unfair dismissal claim is the only aspect of the Tribunal's decision which it is sought to challenge on this appeal. The unanimous decision of the Tribunal on that claim was that it had to be dismissed, as the Tribunal were not satisfied that the nature of her relationship with the proprietors of the home had been such as to make her an employee with a contract of service for the required qualifying period of twelve months before 31 May 2001, the date when it is common ground she ceased to work for them. The majority found that she had not been working under a contract of employment for the purposes of Section 230 Employment Rights Act 1996 at any time. The minority member was satisfied that the evidence showed the relationship to have changed to one under a contract of service from October 2000 onwards, though of course still left her well short of the qualifying period for an unfair dismissal claim.[2]The Tribunal also dealt with a complaint of sex discrimination, but it was confirmed to us by Mr Pullen, who appeared on Miss Wright's behalf on the appeal, that no challenge was made to the way this or the contractual claim had been dealt with: the Notice of Appeal and his submissions were solely directed at the Tribunal's finding that the claimant had been a "casual worker" without a contract of employment from the time she first went to work at the home in April 1999. That finding was in his contention based on a material misdirection on the part of the Tribunal, and was one to which no reasonable Tribunal could have come on the evidence. In particular the Tribunal had been wrong, in the words of His Honour Judge Reid QC when directing the case to be set down for hearing on this issue, to "mistake flexibility for lack of obligation" in holding that as the Appellant had been able to choose when she worked, the necessary mutuality of obligation to constitute a contract for services was lacking.[3]The material findings of primary fact made by the Tribunal in their Extended Reasons sent to the parties on 13 May 2002 were succinctly stated as follows:
"4 The Applicant, Miss Wright, is a social worker … 5 The Respondent provides residential care for children and young persons between the ages of 9 and 18 years. 6 In April 1999 Miss Wright was interviewed by Miss Awan and Mr Walby, then Care Manager. The Tribunal unanimously found that the Respondent was at that time seeking a social worker to be available to work in its home on a casual basis. It further found that Miss Wright was told that this is what was required. She was available for about 15 hours a week and wanted to work from 5 until 10 p.m. It was agreed that she would be engaged as a casual worker. She was one of a number of such workers. 7 Miss Wright had to fit her pattern of work into that of her partner who looked after their son while she was working. She would inform the Respondent of her availability and they would arrange for her place on the rota in accordance with this. 8 Her pattern of work varied as to the days, but, with some variations, she usually worked from 5 until 10 p.m."
[4]In our judgment, the crucial question to which the Employment Tribunal correctly addressed their minds was what it was that was actually agreed between Miss Wright and the Respondent at the time she was engaged to work for them; and in particular whether this involved any element of obligation on either side, in the case of the Respondent to provide her with any minimum amount of work or in her case to attend or be available for any given amount of work if required. That crucial initial issue was one of fact for the Tribunal to determine, although of course we accept the submission of Mr Pullen that the legal interpretation of the facts when found, and whether a given relationship is one of employment or not, are matters of law not necessarily depending on the "label" either or both parties chose to put upon them.[5]There was no dispute between him and Mr West, the representative for the Respondent, as to the relevant test to be applied in law. This is that there must be: "an irreducible minimum of obligation on each side to create a contract of service": see Nethermere (St Neots) Ltd v Gardiner , [1984] ICR 612, 623G per Stephenson LJ. Such an irreducible minimum will not be present unless it is found as a matter of fact that there is some continuing obligation on the person claimed to be the employer to provide work, and on the person who claims to be an employee to carry it out. Unless such a minimum of mutual obligation is found to have been accepted by the parties, a person working even for an extended period as a nurse under a casual arrangement where she is offered and accepts shifts of work when called on and convenient as a member of a "nurse bank" is not a continuing employee under a contract of service: Clark v Oxfordshire Health Authority [1998] IRLR 125 . That is however subject to the practical qualification acknowledged in Nethermere cited above, that the longer-lasting and more regular the arrangement, the easier it is to infer as a matter of fact that the necessary minimum of obligation on each side has come to be assumed over the course of time, so that what starts off as a mere expectation may harden into an enforceable contract of employment.[6]We have no doubt that all three members of the Employment Tribunal in this case had that distinction well in mind in concluding as they did on the evidence, that the basis on which Miss Wright had been appointed in April 1999 had been "as a casual worker" as stated in their findings of fact in paragraph 6. That is repeated in the decision in paragraph 18, where they referred to the conflict of evidence on the basis on which Miss Wright had been appointed, and recorded that they accepted the Respondent's evidence that this had been "on a casual basis". Moreover that and the two succeeding paragraphs do make quite clear what all three members of the Tribunal meant by that expression, referring specifically and repeatedly to the question of whether there was mutuality of obligation to do and to provide work.[7]The fact that the minority member was satisfied the relationship had hardened into one of mutual obligation by October 2000 does no more than emphasise that this was not a state of affairs he found to have existed or to have been agreed from the outset. We do have some sympathy with his view of how the relationship developed given the nature of the Applicant's work and the regularity of her work pattern established as time went on, but as noted above even if his assessment of the factual and legal position from October 2000 onwards were to be preferred, he was at one with the majority in holding it could still not enable the Applicant to bring a complaint of unfair dismissal on a termination on 31 May the following year.[8]For all those reasons, we reject Mr Pullen's submission that the Tribunal misdirected themselves as to the test to be applied; since unless they were satisfied that a minimum of mutual obligation was in fact accepted by the parties from the outset, the conclusion that a contract of service had not then been established as a matter of law necessarily followed. As to whether the Tribunal were perverse and unreasonable in failing to find on the evidence that some minimum of obligation had in fact been agreed from the outset, we again accept Mr West's submissions on behalf of the Respondent that this was a matter of fact for the Tribunal to determine, and they cannot be characterised as perverse or unreasonable for not having found any such agreement to have been made. There was no documentary evidence to support the suggestion, and as the Tribunal recorded the matter came down to a conflict of oral evidence between the parties who had been at the original meeting. This they resolved, as they were entitled to do, by accepting the Respondent's evidence in preference to that of the Applicant. Despite the arguments of Mr Pullen we have been left unpersuaded that that is a finding with which this Appeal Tribunal has any power or business to interfere, it being conceded on both sides that either view of the matter would have been permissible.[9]Accordingly, we must dismiss this appeal.