THE INDUSTRIAL TRIBUNALS
CASE REF:	1673/08

CLAIMANT:			Sharon White

RESPONDENT:	           Rose Lodge Care Homes Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not an employee of the respondent and the tribunal therefore does not have jurisdiction to hear the claimant’s claim of unfair dismissal.

Constitution of Tribunal:

Chairman:		Ms Turkington

Members:		Mr Burnside
Mr Hanna

Appearances:

The claimant did not appear at the hearing.
The respondent appeared at the hearing and was represented by Liz Thompson.

The Claim 
1.	The claim was a claim of unfair dismissal.

The Issues

2.	The tribunal had to determine whether the claimant was employed by the respondent and therefore whether the tribunal had jurisdiction to determine the claimant’s claim of unfair dismissal.  In her claim form, the claimant asserted that she was employed by the respondent whilst the respondent in its response form denied that the claimant was an employee and contended that the claimant was a bank worker.  There was therefore a clear dispute between the parties on this issue.

Disposal of the claim in the absence of the claimant

       3.  The claimant did not attend at the hearing.  The tribunal was satisfied that the Notice of Hearing had been sent to the claimant at the address set out in the claim form.  The claimant had not contacted the office to provide any explanation for her non-attendance.  In the circumstances, the tribunal decided that it was appropriate for it to proceed to hear the claim in the absence of the claimant.  In doing so, the tribunal considered the content of the claim form lodged by the claimant.

Sources of Evidence 

 4.  The tribunal heard evidence from Iris McClure on behalf of the respondent and the respondent also referred the tribunal to a number of documents.
      
Facts of the Case

Having heard the evidence given on behalf of the claimant at the hearing and having considered the documents referred to in evidence, the tribunal found the following relevant facts:-

5.	The claimant was initially employed by the respondent on 20 June 2007 as a Night Duty Care Assistant.  

6.	 Due to the claimant’s apparent difficulties in attending regularly for her rostered shifts, the respondent discussed with the claimant the possibility of her transferring to a Bank position as this would afford her greater flexibility.

7.	By letter dated 12 October 2007, the claimant asked the respondent to put her on a bank contract for night duty.  That request was accepted and by letter dated 15 October 2007, the respondent confirmed to the claimant that her status had been changed to “bank”.  On 17 October 2007, the respondent wrote to the claimant enclosing a new contract which the claimant was invited to read carefully.  This contract described the claimant’s position as a “Bank care assistant” and the hours of work were described as “0” (zero) hours per week.  

8.	From October 2007, the claimant was offered shifts on a casual basis covering for permanent staff on annual leave, sick leave or maternity leave.  The claimant was free to refuse any shifts offered and on numerous occasions, the claimant asked to be excused from shifts which she had previously agreed to work.  By letter dated 11 January 2008, the claimant asked for her status to be changed from Bank to a fixed contract for 3 regular shifts per week.  This request was refused by the respondent and the respondent stated as follows:-

“As a bank worker we are not obligated to offer you shifts and similarly you are not obligated to work the shifts we do offer you.  However when you have been offered and accepted shifts we do expect you to work them.”

9.	Following a disciplinary meeting on 18 September 2008, the claimant’s contract was terminated by the respondent.  

Statement of Law

10.	A claim of unfair dismissal can only be brought by an employee working under a contract of employment.  Accordingly, the tribunal had to determine whether the claimant was employed by the respondent under a contract of employment. The relevant legal principles and the tests for a contract of employment are set out in Section A of Harvey on Industrial Relations and Employment Law paras 1 to 85. 

11.	In the case of Carmichael v National Power PLC 2000 IRLR 43, the claimants were employed as guides on a “casual as required basis”.  There was no obligation on the part of the company to offer work to the claimants nor were the claimants obliged to accept work when offered.  In confirming that the claimants were not employees, the House of Lords referred to “that irreducible minimum of mutual obligation necessary to create a contract of service”.  In his judgment, Lord Irvine concluded that the tribunal in the Carmichael case had been correct to conclude that the claim “founders on the rock of absence of mutuality”.

12.	The Court of Appeal of England and Wales reached a similar conclusion in the case of Clark v Oxfordshire Health Authority 1998 IRLR 125.  The Clark case concerned a nurse working for the authority under a “bank” arrangement whereby she did not have regular hours, but was offered work as and when a temporary vacancy arose.  The Court of Appeal stated that some mutuality of obligation was required for an arrangement to constitute a contract of employment.  The required mutuality of obligation was found not to be present in the Clark case.

Conclusions

13.	On the basis of the evidence presented to it, the tribunal concluded that there was no obligation on the part of the respondent to offer work to the claimant.  Further, there was no obligation on the part of the claimant to accept work when offered.  The claimant was not entitled to be paid any retainer when working.

14.	Having considered the Clark and Carmichael cases, it was clear to the tribunal that some mutuality of obligation is an essential element of a contract of employment. The tribunal was satisfied that there was no mutuality of obligation between the parties in this case and the tribunal therefore concluded that, after October 2007, the claimant was not employed by the respondent under a contract of employment.  Since the claimant was not an employee when her contract was terminated, the 

tribunal does not have jurisdiction to hear the claimant’s claim of unfair dismissal and the claimant’s claim is therefore dismissed in its entirety.

Chairman:

Date and place of hearing: 6 May 2009, Belfast.

Date decision recorded in register and issued to parties: