Appeal No UKEAT/0055/05/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 April 2005
Judgment delivered on 8 June 2005

Before
HIS HONOUR JUDGE D SEROTA QC
MR T HAYWOOD
MR D NORMAN

CORNWALL COUNTY COUNCIL	APPELLANT

MRS M A PRATER	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ADAM HEPPINSTALL
(of Counsel)
Instructed by:
Cornwall County Council 
(County Legal Services)
County Hall
Truro
Cornwall 
TR1 3AY
	
For the Respondent	MR ROHAN PIRANI
(of Counsel)
Instructed by:
Messrs Clayton Solicitors
1 Lower Avenue
Heavitree
Exeter 
EX1 2PR	

SUMMARY

Contract of Employment

In this case we have held that where a Claimant teacher has accepted a succession of short term special teaching assignments, in circumstances where the Respondent employer was not obliged to offer further assignments and the teacher was not obliged to accept them, she was to be regarded nevertheless as having been continuously employed by the Respondent by virtue of S.212 of the Employment Rights Act 1996. On the particular facts of the case any gaps between the assignments were to be disregarded because the Claimant was only absent on account of a temporary cessation of work. The lack of mutuality of obligation before and after the completion of assignments did not of itself prevent the assignments from constituting contracts of employment.

HIS HONOUR JUDGE SEROTA QC
1.	In this case we have held that where a Claimant teacher has accepted a succession of short term special teaching assignments, in circumstances where the Respondent employer was not obliged to offer further assignments and the teacher was not obliged to accept them, she was to be regarded nevertheless as having been continuously employed by the Respondent by virtue of S.212 of the Employment Rights Act 1996. On the particular facts of the case any gaps between the assignments were to be disregarded because the Claimant was only absent on account of a temporary cessation of work. The lack of mutuality of obligation before and after the completion of assignments did not of itself prevent the assignments from constituting contracts of employment.

2.	This is the full hearing of an appeal by the Respondent, Cornwall County Council, from the decision of an Employment Tribunal at Truro [J.G. Hollow Esq. Chairman] promulgated on 21 December 2004. The Employment Tribunal held that at the material time, the Claimant, Mrs M.A. Prater, was an employee of the Respondent. On 24 January 2005, His Honour Judge Prophet referred the matter to a full hearing and recommended that the appeal be expedited.

3.	We briefly set out the relevant facts as found by the Employment Tribunal. The Claimant is an experienced teacher. Although her primary discipline is science, especially biology, she has taught across the board, so as to speak.

4.	In January 1988 she began work as a teacher for the Respondent in what was then its Home Tutor Service. It is now known as the Education Out Of Schools Service.

5.	The Respondent as an Education Authority, is obliged to provide education to children of school age. On occasions children are unable to attend school for a variety of reasons, such as injury or having been excluded from school. In those cases the Respondent will provide education through a Home Tutor.

6.	The Respondent will always seek to match the pupil and his or needs with an appropriate tutor. The Managers of the Service will attempt to match child and tutor. The tutor would be asked whether he or she was prepared to take on a particular pupil and was always entitled to refuse. Pupils will be interviewed and assessed by tutors.

7.	The tutors formed what might be described as a ‘bank’. There was no certainty that the Respondent would offer them work. The Respondent had no obligation to do so. There was no minimum amount of work that was to be offered to tutors. The tutor was not obliged to take on any particular pupil. In fact, over the ten years or so the Mrs Prater operated under the scheme she never once refused to take on a pupil. We were told that Mrs Prater was paid at the Whitley rates and that pension contributions at the appropriate rate were paid and notified to a body known, we believe, as Teachers’ Pensions.

8.	In September 1998 Mrs Prater was appointed to post of 0.3 full time equivalent Home Tutor. There is no dispute that from September 1998 she became an employee of the Respondent [if she was not one already]. She remains an employee and continues to work as a home tutor on much the same basis. We should record that the Respondent has always had a high regard for Mrs Prater's abilities and performance.

9.	We now say something about the nature of the work. As a general rule each child was expected to receive 5 hours tuition each week, although in certain cases this might be increased to 10 hours. Arrangement for tuition had to be flexible to allow for a number of factors including, the need for an adult to be present if tuition took place at the child's home, the needs of the child, its ability to undertake tuition for longer or shorter periods, the nature of the curriculum to be taught, and the tutor's own commitments. If a child was to be reintegrated into the main stream it might be necessary for tuition to be given at a particular school and thus the tutor would need to liaise with the school. Children excluded from school were taught in a special unit, so the tutors would need to liaise with the unit, because such children were taught in small groups.

10.	Mrs Prater's evidence was not disputed. Although she was under no obligation to take on any particular pupil as we have already said, she considered that as a professional, when she agreed to take on a pupil, she took on a commitment to the pupil and felt that she was obliged to deliver tuition for so long as that was needed. She had taught some pupils for over at home for a period measured in years and in one case for some 5 years. When a pupil was taken on, there was no indication how long the assignment might last, although we believe the initial period was generally half of one term.

11.	Mrs Prater produced a detailed schedule of the hours worked between 1988 and November 2004. The Employment Tribunal was satisfied that apart from the month of August, with isolated exceptions [14 months in 16 years], she was paid for work in every month. It is not clear to us if this was the case but we assume that Mrs Prater may have had more than one assignment current at any one time.

12.	Mrs Prater was never issued with any contract by the Respondent while a home tutor but at some date prior to September 1998 she was handed a document entitled ‘Information for Home Tutors’. This document set out the expectations the Respondent had for home tutors. It included the statement that ‘you are employed by the Education Authority...'

13.	When Mrs Prater in September 1998 was appointed to the post of 0.3 full time- equivalent Home Tutor her duties did. not change significantly. However, there were more administrative duties and she was no longer paid travelling time for her ‘contracted hours’ but she was entitled to be paid travelling time for her additional or ‘non –contracted’ hours.

14.	The issue raised by Mrs Prater was whether for the period 1 April 1988 to September 1998 she was to be treated as having been employed by the Respondent. Having regard to Mrs Prater’s age and the fact that there is no dispute that she is now an employee, the purpose of her claim was not altogether apparent. However, we were able to elicit that her case was backed by her Union, the NUT, and that a number of other home tutors have raised similar claims. Further, the length of her service may affect her pension entitlement. We say ‘may’ because neither party knew if this was the case or not.

15.	The Employment Tribunal also found the following facts which may be relevant to our decision. Once Mrs Prater took on a pupil there was a mutual expectation that she would complete the assignment, however long it might take. Although the assignment was never renegotiated, it was kept under regular review and ‘rolled on’ for so long as was necessary. There was no close level of control over Mrs Prater, and such would not have been expected in the case of an experienced teacher. She expected to teach and the Respondent expected that she would. Had she failed to carry out the teaching she had agreed that would have led, at the least, to the Respondent enquiring as to her reasons. She had no right to substitute another teacher if she were unable to attend on any particular occasion.

The decision of the Employment tribunal
16.	The Employment Tribunal was referred to various authorities and to S212. of the Employment Rights Act 1996.
17.	The Respondent argued that as there was no obligation on the part of the Respondent to. give work to Mrs Prater and no obligation on the part of Mrs Prater to accept work, there was not what Lord Irving of Laird referred to in Carmichael v National Power 200 IRLR 43 at 45 as the ‘…irreducible minimum of mutual obligation necessary to create a contract of service’.

18.	Mrs Prater argued that ‘each contract or engagement between the parties was a contract of employment’ and that they were sufficient to justify a finding of a ‘global or umbrella’ contract between the parties including ‘down time’ because the gaps between engagements could be bridged by S.212 of the Employment Rights Act 1996. This provides:

‘212 Weeks counting in computing service'
(1)	Any week during the whole or part of which an employee’s relations with his employer are governed by a contract of employment counts in computing the employee's period of employment…
(3)	subject to subsection (4), any week … during the whole or part of which an employee is…
(b)	 absent from work on account of a temporary cessation of work…
counts in computing the employee's period of employment.
(4)	Not more than twenty-six weeks count under subsection (3)(a ... between any periods falling under sub-section (1).

19.	The Employment Tribunal [at paragraph 14], distinguished the instant case from Carmichael and Clark v Oxfordshire Health Authority 1998 IRLR 125 [CA] on the basis that the periods of work undertaken in those cases were `short and known to be so from the outset' whereas the assignments undertaken by Mrs Prater
‘were very much more open ended. In our view there was mutuality of obligation between the parties sufficient to create a contract of employment’.
It is fair to say that the reasoning is extremely compressed.

20.	The Employment Tribunal then considered that there was continuity of service dating back to 1988 on the basis that any gaps in employment were by reason of ‘temporary cessations of work’ and accordingly S.212 of the Employment Rights Act 1996 bridged any gaps. There is no appeal against this latter finding.

The parties’ submissions
21.	Mr Heppinstall who appeared for the Respondent submitted that it was not sufficient for there to be mutuality of obligation during any one assignment [and he conceded that there would be mutuality of obligation] but that the obligations to provide and perform work must apply throughout the entire duration of the relevant period. He strongly relies upon the dictum of Sir Christopher Slade in Clark v Oxfordshire Health Authority where he said this at paragraph 22

‘In my judgement, two decisions of this court are authority binding on us, for the proposition that no ‘contract of employment within the definition of S153(1) of the 1978 Act (whether it be given the extra-statutory name ‘global’ or ‘umbrella’ or any other name can exist in the absence of mutual obligations subsisting over the entire duration of the relevant period…’ [our italics]

The other members of the Court of Appeal, Beldam and Schiemann Ljj agreed with Sir Christopher Slade.

22.	The facts of that case were that Mrs Clark worked for the ‘nurse bank’ of Oxfordshire Health Authority, on terms that provided she had no entitlement to, or guarantee of continuous work. When she did work she was paid on the basis of the appropriate Whitley scale, subject to the usual deductions. She had worked for some 3 years with only a 4 week break for a holiday and 6 other weeks [in three separate periods] when she did not work. She claimed unfair dismissal but the Employment Tribunal found she was not entitled to claim as she was never an employee of the Oxfordshire Health Authority because there was no mutuality of obligation. That decision was reversed by the Employment Appeal Tribunal which found there to have been a ‘global contract of employment’. The Court of Appeal restored the decision of the Employment Tribunal on the basis that the mutual obligations to provide and perform work were absent during the periods Mrs Clark was not working. It is apparent, however, that the Court of Appeal did nevertheless consider it possible that a specific engagement might have amounted to a contract of service. The matter was remitted to the Employment Tribunal to determine whether at the date of dismissal there existed a specific engagement which amounted to a contract of service so that she might be able to claim to have been unfairly dismissed when her contract was terminated; see paragraph 43.

23.	Mr Heppinstall went on to submit that Employment tribunals are not encouraged to rewrite what parties have agreed and that where the parties to a working relationship [we put the matter in neutral terms] deal with one another as casuals it is wrong to treat them as employees. He drew our attention to O’Kellv v Trusthouse Forte 1983 IRLR 69 in which the Court of Appeal held that the Claimants who worked as ‘regular casuals’ at functions catered by the Respondent, should not be regarded as employees, notwithstanding that they worked virtually every week averaging in some periods in excess of 30 hours. Each engagement was, however, limited to one specific function. These contracts could not be aggregated so as to give rise to an overarching contract of employment.

24.	He also drew attention to the fact that in Carmichael although the parties agreed that the work of the guides should be regarded as casual; Lord Irvine at paragraph 21 had said that ‘no issue arises as to their status when actually working as guides.’ We do not consider that he was there addressing the issue that we are now considering.
25.	He went on to submit that it was not possible to imply terms into an agreement that were inconsistent with express terms. He drew our attention to the decision of the Court of Appeal in Stevedoring and Haulage v Fuller 2001 IRLR 627. During the course of submissions we put to him that the test for implication of a contract is one of necessity; see The Elli [1985] 1 Ll.R. 107 and Baird Textile Holdings v Marks and Spencer [2001] EWCA Civ 274. He agreed.

26.	He also submitted that S.212 relates only to continuity of employment and has nothing to do with casual workers or the converting of casual contracts of ‘workers’ into contracts of employment.

27. In conclusion he submitted that if the Employment Tribunal was correct all ‘workers’ who in fact worked on a regular basis would always be regarded as employees. This point had not been taken in Carmichael, Clark, O'Kelly or Stevedoring which was surprising as in each case if the point under S212 was correct the claimants might have won.

28.	Mr Pirani, who appeared for Mrs Prater, did not take issue with the proposition that a contact of service required the irreducible minimum of mutuality of obligation to provide and accept work. He concentrated, however, upon the assignments, once they had been accepted. Although Mrs Prater was not obliged to accept any assignment, once she had accepted she was obliged to fulfil her commitment and the Respondent was obliged to continue to provide that work until the engagement ceased. The fact that at the time when a particular assignment was offered to Mrs Prater there were no obligations on either, party had no effect on their obligations once the assignment was accepted.

29.	Mr Pirani pointed out that S.212 was not available in the other cases cited as there had been no continuity of employment within the meaning of S212; For example in Clark there was an express finding that Mrs Clark had no continuity of employment [see paragraph 27] and on occasions had chosen not to work. The question as to whether there was a ‘temporary cessation’ of work within S.212 (3)(b) was always a question of fact and degree; he cited as authority for that proposition the decision of the House of Lords in Ford v Warwickshire CC 1983 ICR 273 CC.

30.	The fact that during periods of ‘downtime’ there were no mutual obligations was always the case when there were successive contracts of employment, and this appeared to have been accepted by the Court of Appeal in Clark at paragraph 43 as the existence of a contract of employment for a specific engagement was considered to be possible.

Conclusions
31.	We are not able to accept the proposition that because after completion of an assignment, during a period of ‘downtime’ there was no mutuality of obligation to provide and accept work, that lack of mutuality prevented the assignments themselves from being regarded as periods of employment strictu sensu. We do not consider that is what Sir Christopher Slade meant in the passage at paragraph 22 we have quoted from Clark v Oxfordshire Health Authority. As Mr Pirani pointed out, in that case there could be no continuity of employment because in the periods between assignments there were occasions when Mrs Clark chose not to accept work. In our opinion, the fact that at the time when short term employment is offered by an employer and accepted by an employee, there is no obligation on the part of the employer to offer the work and no obligation on the part of the employee to accept it, cannot of itself prevent the relationship between them being that of employer and employee. The relationship created for the term of the assignment must be assessed on the basis of well established principles to determine whether it is a contract of service or a contract for services.

32.	ln the present case, the Employment Tribunal was entitled to find on the facts that each assignment undertaken by the Claimant constituted a separate contract of employment, properly so called. S 212 works backwards so as to speak and ‘joins up’ a number of short periods of employment because, as the Employment tribunal found she was only absent from work on account of a ‘temporary cessation of work’.

33.	ln the circumstances we cannot interfere with the decision of the Employment Tribunal which directed itself correctly as to the law and applied it to the facts it found.

34.	The appeal must therefore be dismissed.

35.	We would like again to express our thanks to both Mr Heppinstall and Mr Pirani for the quality of their advocacy and the assistance they both gave us during their admirable but succinct submissions.