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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ministry of Defence HQ Defence Dental Service v Kettle [2007] UKEAT 0308_06_3101 (31 January 2007) URL: http://www.bailii.org/uk/cases/UKEAT/2007/0308_06_3101.html Cite as: [2007] UKEAT 308_6_3101, [2007] UKEAT 0308_06_3101

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APPEARANCES

 

For the Appellant	Mr P Savill (of Counsel) Instructed by: The Treasury Solicitor Employment Law Team One Kemble Street London WC2B 4TS
For the Respondent	Ms S Bothroyd (of Counsel) Instructed by: Messrs RHW Solicitors Ranger House Walnut Tree Close Guildford GU1 4UL


 


SUMMARY

Contract of Employment – Definition of employee

Sex Discrimination

Whether specialist orthodontist consultant an employee – job advertisement for salaried part-time employment in a clinic – contract documentation produced to successful candidate suitable for an independent contractor with own organisation using sub-contractors – whether Tribunal restricted to contract documentation or entitled to take account of job advertisement and subsequent conduct of the parties.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by the Ministry of Defence ("the MOD") against a judgment of the Employment Tribunal sitting by Chairman alone (Mr Edwards) at Southampton on 10^th February 2006. By his judgment the Tribunal Chairman found that the Claimant was at all material times an employee of the MOD.
2. The sole question in this appeal is whether the Tribunal Chairman erred in law in finding that Dr Kettle was an employee of the MOD. At the hearing below it was also argued that Dr Kettle could not legally have been employed by the MOD. That contention was rejected by the Tribunal Chairman and is not the subject of an appeal.
3. At the heart of the appeal is the following issue. In determining whether a person is an employee or not, when may a Tribunal look outside the four corners of what appears to be a contractual document? May it do so only if it finds the document to be a sham, or if it finds a subsequent variation to the contract? That is the contention of the MOD. Or may it do so on a wider basis, as Dr Kettle contends?

The facts

4. Dr Kettle was a very experienced dental and orthodontic specialist. In December 2000 she saw an advertisement in the British Dental Journal for a post entitled "Part-time Civilian Orthodontic Specialist Practitioner". The advertisement read –

"PART TIME CIVILIAN ORTHODONTIC SPECIALIST PRACTIONER required for up to six sessions per week to join the current Armed Forces Orthodontist in providing a comprehensive and high quality orthodontic treatment service to the patients of the Royal Navy, Army and Royal Air Force. The post is based in the Army Dental Clinic in Aldershot. This is a salaried position in a large, well run, friendly clinic which has a fully equipped orthodontic surgery with trained orthodontic nursing, clerical and reception staff. The successful applicant will have full clinical freedom and will work alongside the existing specialist... This post would ideally suit a practitioner with a few sessions per week of spare capacity. A job share would be considered... There is an attractive remuneration package on an hourly or sessional salary basis. Required to start as soon as possible, for 6 months in the first instance… The MOD is an equal opportunities employer…"

5. Dr Kettle responded to the advertisement, was interviewed and told that she had been successful.
6. On 25^th January 2001 Dr Kettle was sent a letter by Mr Ogilvie from the Defence Procurement Agency. It contained documents, including one described as an "invitation to tender", and also a form of contract. She signed and returned the invitation to tender. On 23^rd February 2001 she was sent a form of contract for the provision of consultant orthodontic services. She spoke to Mr Ogilvie and said she felt the documents were not appropriate to her situation, but "more to builders". Mr Ogilvie reassured her that this was the normal documentation required by the Ministry of Defence. She signed the contract.
7. Dr Kettle was correct to say the documents were not appropriate to her situation. The documentation may have been normal for a tendering process, but it cannot possibly have been the MOD's normal documentation for the kind of post for which Dr Kettle had successfully applied. The advertisement to which she had successfully responded was plainly for a part-time salaried post in the MOD's organisation, specifically in a clinic already staffed and operated by the MOD. The documentation, on the contrary, envisaged a tendering process and the award of a contract to a sub-contractor running its own organisation.
8. It is necessary to quote parts of the contractual documentation. The grammar, spelling, punctuation and use of capitals in the documentation all leave something to be desired. I will quote them without correction.
9. The form of contract was described as made between the MOD by its contracts and central purchasing section, and Dr Kettle as contractor. It contained, in Schedule 2, a "Statement of Requirement". It is sufficient to quote the following paragraphs.

"1. There is a requirement for a Consultant Orthodontist to provide Orthodontic services at the Clinical Wing, Dental Centre, Aldershot, and on occasions at RH Haslar.

2. The consultant may also be required to participate in joint clinics with the consultants in Maxillo-Facial and other dental disciplines.

3. The Consultant will be responsible for the provision of Orthodontic care for Service personnel in the south and south east of England who are referred to her. She is to treat those patients and/or advise on their future management.

6. It is anticipated that their will be up to 6 x 3.5 hour sessions per week.

9. The Defence Dental Agency will pay for the contractor's attendance at the British Orthodontic Conference (or equivalent)."

10. There were incorporated various standard conditions of contract, known as DEFCONs. None of those are said to have any particular importance in determining this appeal.
11. There was a provision whereby the contractor agreed to provide the services set out in the statement of requirement, from which I have already quoted.
12. There then followed these provisions –

"SUB CONTRACTING

5.1 Where sub-contractors are used by the Contractor, the standards set down in the Contract will apply equally to the former and the Contractor will be responsible for ensuring compliance with the same.

DUTY OF CARE

6.1 The Contractor shall be responsible for ensuring that reasonable skill, care and diligence are exercised in carrying out the service, specified in the Statement of Requirement properly and efficiently in accordance with the Contract.

CONTRACTOR'S ORGANISATION

7.1 The Contractor shall provide and maintain an organization having the necessary facilities and employees of appropriate qualifications and experience to undertake the service specified in Schedule 2.

TERMINATION

8.1 The Authority shall have the right to terminate the contract, or to terminate the provision of any part of the services, at any time by giving 1 months written notice to the contractor. The Authority may extend the period of notice at any time before it expires, subject to agreement on the level of Services to be provided by the Contractor during the period of extension.

INDEMNITY AND INSURANCE

9.1 The Contractor shall indemnify the Authority, the Crown, its servants or agents against all actions, claims, demands, costs and expenses incurred by or made against the Authority, the Crown, its servants or agents in respect of any loss or damage or personal injury (including death) which arises out of or in connection with this Contract caused by the negligence of the Contractor, his Agents or Sub-contractors."

13. There were also provisions as to length of contract and price. The contract was to last from 12^th March 2001 to 14^th September 2001. The contract price was £45 per hour.
14. As the Tribunal found, the agreement between the MOD and Dr Kettle continued with renewals of the contract on five occasions. She did 6 sessions per week, working 3 days with 2 sessions of 4 hours. She worked at MOD clinics, predominantly one in Aldershot. Everything was provided for her, including a uniform. Lists of patients were provided for her. She attended dental conferences as agreed. She paid her own tax and national insurance. She completed time sheets each week, which were of course simple, since she was being paid by the hour rather than by reference to items of work. Later the number of sessions she did was reduced.
15. The last contract terminated on 10^th June 2005. She was told she could not continue to work after 10^th June, but then allowed to continue her work via an employment agency. On 22^nd June her work terminated abruptly.

The Tribunal's reasons

16. The Tribunal Chairman directed himself that an employee is a person working under a contract of employment: see section 230(1) of the Employment Rights Act 1996. He took into account the guidance given in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497.

He said –

"The label put by the parties on the arrangement is not necessarily conclusive. I have to look at all the matters in the round. Even a contract document itself is not necessarily conclusive because it depends on how the contract has been operated in practice.

The Claimant's counsel has suggested that I apply the control test, but I must take into account all factors, the so-called "multiple" or "mixed" test. No one factor is decisive."

17. He reviewed matters of a general and organisational nature in paragraph 21 of his reasons. On the one hand he noted that Dr Kettle paid her own tax and national insurance; that she received no pension or sick pay; that she had to provide insurance against negligence. On the other hand he found that Dr Kettle was always part of the MOD system, subject to their direction as to where she should work, subject to higher authority, given her lists of patients, provided with all equipment, working regular clinics.
18. On the question of mutuality of obligation he said-

"I am satisfied that in practice there was mutuality of obligation, in spite of the contract stating "up to" six sessions per week. In practice these amounted to regular sessions every week".

19. As to the use of the phrase "contractor" and "independent contractor" he said –

"It is true that, throughout the documents, there is reference to "contractor" and, in some cases, "independent contractor", but equally the advertisement, which first of all attracted her to this post is couched completely in employment terms. It mentions salary, a well run clinic, attractive remuneration, job-share and an Equal Opportunities employer. It is difficult for the Respondent to suggest that this advertisement was in some way unofficial."

20. On the question of use of sub-contractors, he said -

"She did see the clause about sub-contracting and mentioned to Mr Ogilvie that she could never provide a substitute or a locum orthodontist; she never did in practice and would have been unable to do so. Whenever she was away, on holiday, then cover was provided by the Ministry of Defence."

21. After this review, the Chairman concluded –

"I am therefore satisfied, looking at all those factors in the round (the advertisement, the contract, the surrounding circumstances, the fact that the Claimant worked personally, there was mutuality of obligation, there was control over what she did, there was no risk, no financial risk so far as she was concerned, and the manner in which she had worked for some five years) that she was an employee"

Submissions

22. On behalf of the MOD, Mr Savill's submissions may be summarised as follows.
23. First, he submitted that it was essential to a contract of employment that the employee must be obliged to provide work personally. He submitted that no such obligation existed in Dr Kettle's contract, since it was implicit in condition 5.1, which I have already quoted, that she had a right to employ a sub contractor. Where, as here, there was a written contract, the Tribunal must give effect to a term of that contract providing a power to provide substitutes unless either the written contract could be said to be a sham or there had been a variation of the contract. The Tribunal could look to the manner in which an arrangement operated in practice only where there was no express contractual term. He relied on Staffordshire Sentinel Newspapers Ltd v Potter [2004] IRLR 752 and Real Time Civil Engineering Limited v Callaghan (UKEAT/0516/05).
24. Secondly, he submitted that it was essential to a contract of employment that the Tribunal must find an obligation to provide, and to perform, a minimum amount of work. He submitted that no such obligation existed in Dr Kettle's contract, which referred only to an anticipation that "up to" 6 sessions at 3.5 hours per session would be provided. The conduct of the parties could not be relied on for the purpose of implying a term which flatly contradicts an express term of the contract. He relied in particular on Clark v Oxfordshire Health Authority [1998] IRLR 125 and Stevedoring and Haulage Services Limited v Fuller [2001] IRLR 627.
25. Developing those submissions, Mr Savill argued that there was no finding either that the written contracts had been varied or that they were shams. Indeed he submitted that it had not been part of the case of either party before the Tribunal that the contracts were sham in the sense laid down in Snook v London and West Riding Investments Limited [1967] 2 QB 786 at 802, where Diplock LJ said –

" …for acts or documents to be a "sham", with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. "

26. The Tribunal Chairman's approach was, he submitted, erroneous in law, in saying that a contract document was not necessarily conclusive, because it depended on how the contract had been operated in practice. He should have given effect to the provision of clause 5.1 and held that there was no obligation on Dr Kettle to work personally. He should have given effect to the lack of any obligation in the contract documentation to provide any minimum amount of work, or to pay a retained in the event of non engagement.
27. Finally, Mr Savill submitted that the Tribunal Chairman's conclusion was perverse, apparently (as he would put it) disregarding factors of relevance to the issue of employment: Dr Kettle's liability for her own tax and national insurance; the description of her in contract documents as a "contractor"; the requirement to indemnify the MOD; the pay differential between Dr Kettle and civilian employees; the requirement on her to insure the MOD's equipment; and what he described as her failure to describe herself as an employee until the issue of final expiry of her contract arose. Rather, he submitted, the Tribunal Chairman attached weight to such matters as the regularity of clinics, the provision of patients, and so forth when these matters were consistent with what he described as conventional medical locum engagements.
28. On behalf of Dr Kettle, Ms Bothroyd made the following submissions.
29. First, she submitted that the Tribunal Chairman correctly referred to the test set out in Ready Mix Concrete (South East) and had this test in mind when he referred to the "multiple test" for determining whether a contract of service existed.
30. Secondly, she submitted that there was no rule that a Tribunal was restricted to the express wording of a written contract unless the contract was a sham or was expressly found to be varied. A Tribunal was entitled to look at the reality of the situation between the parties. It was not, for example, bound by the label attached to the relationship by any contractual documentation.
31. Thirdly, she submitted that where the determination of employee status falls to be made on the basis of both express contractual terms and conduct, it is a question of fact, not a question of law. Only if the Tribunal's decision is perverse will it give rise to an appealable error of law. Once granted that the Tribunal Chairman was entitled to look at the reality of the relationship between the parties, and was not confined to the contractual wording, his decision cannot be said to have contained any error of law, and it was not perverse.
32. Fourthly, as an alternative, she submitted that it could be inferred from the Chairman's findings as to the practice of the parties that there must have been a variation of any written contract, and the Chairman must have proceeded on that basis.

Ascertaining the terms of the contract

33. In order to determine whether a contract is, or is not, a contract of employment, the Tribunal must establish the terms of the agreement between the parties.
34. It is plain from his reasons that the Tribunal Chairman looked outside the four corners of the MOD's contract documentation in order to decide whether Dr Kettle was employed under a contract of service. If he was not entitled to do so, he made a fundamental error of legal approach.
35. The leading modern authority on this topic is the decision of the House of Lords in Carmichael v National Power [2000] IRLR 43.
36. In that case National Power provided a letter to Mrs Carmichael setting out succinctly the basis of an offer. She was to be employed as a casual guide at a set rate of pay. There was a pre-typed reply, which she signed, to say that she accepted an offer of employment as a station guide on a casual as required basis. The Tribunal, in reaching its conclusion that Mrs Carmichael was not an employee, did not restrict its consideration to these documents. The Court of Appeal (whose decision was by a majority) reached a conclusion solely as a matter of construction of the documents, regarding such a conclusion as a matter of law.
37. Lord Hoffman, in a speech with which Lord Goff and Lord Jauncey of Tullichettle expressly agreed, considered the rule that construction of a contract was a rule of law. He said –

"29 …I think that the Court of Appeal pushed the rule about the construction of documents too far. It applies in cases in which the parties intend all the terms of their contract (apart from any implied by law) to be contained in a document or documents. On the other hand, it does not apply when the intention of the parties, objectively ascertained, has to be gathered partly from documents but also from oral exchanges and conduct. In the latter case, the terms of the contract are a question of fact. And of course the question of whether the parties intended a document or documents to be the exclusive record of the terms of their agreement is also a question of fact."

Later he said –

"33 Putting the matter at its lowest, I think that it was open to the industrial tribunal to find, as a fact, that the parties did not intend the letters to be the sole record of their agreement but intended that it should be contained partly in the letters, partly in oral exchanges at the interviews or elsewhere, and partly left to evolve by conduct as time went on. This would not be untypical of agreements by which people are engaged to do work, whether as employees or otherwise. Although the Tribunal did not expressly state this to be their finding, their whole approach to the evidence was consistent only with their having come to such a conclusion. In my view they were entitled to do so."

To similar effect, Lord Irvine of Lairg LC said –

"19. In my judgment it would only be appropriate to determine the issue in these cases solely by reference to the documents in March 1989 if it appeared from their own terms and/or from what the parties said or did then, or subsequently, that they intended them to constitute an exclusive memorial of their relationship. The industrial tribunal must be taken to have decided that they were not so intended but constituted one, albeit important, relevant source of material from which they were entitled to infer the parties' true intention, along with the other objective inferences which could reasonably be drawn from what the parties said and did in March 1989 and subsequently"

38. In my judgment the following propositions may be distilled from this authority which are applicable where a Tribunal has to decide whether a claimant is employed under a contract of service.
39. First, a Tribunal faced with a document or documents said to be contractual, must decide whether the parties intended the document or documents to be the exclusive record of the terms of their agreement.
40. Secondly, this question is a question of fact for the Tribunal.
41. Thirdly, if it was the parties' intention that the document or documents should be the exclusive record of the terms of their agreement, the Tribunal is generally restricted to consideration of the documents. The meaning of the documents is a question of law, and therefore the question whether the claimant is employed under a contract of service is a question of law.
42. Fourthly, if it was not the parties' intention that the document or documents should be the exclusive record of the terms of their agreement, the Tribunal will look at other relevant materials to determine the terms of the contract. These may include oral exchanges and conduct.
43. It follows from this analysis that the all-important first question for the Tribunal to decide is whether it was the intention of the parties, objectively ascertained, that all the terms of the contract should be contained in a document or documents.
44. Experience shows that the factual background against which a Tribunal will decide this issue will vary enormously. On the one hand, there may be no more than a brief exchange of letters, as in Carmichael itself. In such a case a Tribunal will no doubt be the more ready to conclude that it was not the intention of the parties that all the terms of the contract should be contained in the letters. Oral exchanges and evolving conduct will be highly relevant. On the other hand, there may be a carefully prepared contract, appropriate to the circumstances of the parties, made available by one party to the other right at the start of their relationship and signed without question. In such a case a Tribunal will no doubt readily conclude that it was the intention of the parties, objectively ascertained, that all the terms of the contract should be contained in it.
45. Between these extremes lie an infinite variety of circumstances. The circumstances of this case illustrate how infinite the variety may be. Who would have predicted that the MOD, having advertised a salaried part-time post to work as an employee in its own well staffed clinic, would then produce to the successful candidate an invitation to tender followed by a contract appropriate to a contractor with its own organisation?
46. Even where a detailed written contract is signed there is no absolute rule that the parties must be taken to have intended that all the terms of the contract should be contained in the written agreement. There may, no doubt on relatively rare occasions, be a compelling case for concluding that such a document was not intended to contain the terms of the contract, or that some terms of the contract are inimical to it. A common intention by the parties that a written agreement is not to create the legal rights and obligations which it appears to create, for the purpose of deceiving third parties, is no doubt one such case. This is the "sham" to which Diplock LJ referred in Snook. But that is not the only such case. A written agreement may not reflect the agreement of the parties for other reasons – for example if it omits or mis-states key features of what the parties agreed by reason of misrepresentation or sheer mistake. Parties may, for example, by mistake use a form of contract containing a provision or provisions inappropriate wholly or in part to the terms they have agreed or to the legal relationship they intend to create.
47. As Carmichael makes clear, however, it must always be kept in mind that the question for the Tribunal is what the parties agreed. Subsequent practice may be a guide to what they agreed, but it is not substitute for it.
48. Against this background I turn to consider the cases upon which Mr Savill has relied – in particular, Stevedoring [2001] IRLR 627, Staffordshire Sentinel [2004] IRLR 752, and Real Time Civil Engineering (UKEAT/0516/05).
49. In Stevedoring at paragraph 19 the Court of Appeal said –

"In considering whether the decisions of the ET and the EAT can be sustained, we bear in mind that whether there is a contract and, if so, what its terms are, are questions of fact or mixed questions of law and fact. Appeals from the ET lie only on questions of law and so their findings of fact can only be challenged for perversity. Moreover, in this field the search for an agreement or its terms should not be confined to a consideration or construction of the documents unless it is clear that the parties intended them to be the exclusive source of their agreement, if any. The parties' intention may be inferred from other sources, including subsequent conduct. We think this point is self-evident, but it is made clearly in the opinions of Lords Irvine and Hoffman in Carmichael v National Power (2000) IRLR 43" [paragraph 9]

50. This is entirely consistent with the principles which I have derived from Carmichael.
51. In Staffordshire Sentinel HHJ Clark had to consider whether a home delivery agent was an employee. He had signed delivery agency agreements which stated that they were agreements for services, not contracts of employment. The last agreement he signed provided that he was not required to discharge his or her duties personally, but would ensure that if he did not want to do so or was unable to do so he would engage suitable persons to ensure that his or her obligations were fully complied with.
52. Giving the judgment of the Appeal Tribunal, HHJ Clark discussed and applied the earlier decision of the Court of Appeal in Express and Echo Publications Ltd v Tanton [1999] IRLR 367. He said –

"The critical question is what is the relevant contractual term? Where there is no clear express term in writing then it may be necessary to look at the overall factual matrix in order to discern that term – see Carmichael v National Power plc (2000) IRLR 43. However, where the term is clear from the contractual document that course is unnecessary, subject to variation of the term or where it can be said to be a sham, to use Peter Gibson LJ's expression in Tanton"

53. This dictum, on which Mr Savill placed great reliance, must in my judgment be seen in context. In Staffordshire Sentinel there seems to have been no issue as to whether the documents in question were intended by both parties to embody fully the terms of the contract. If it was, then on the principles set out in Carmichael it would have been impermissible to find terms of the contract in any oral agreement or subsequent dealing. The factual matrix would have been irrelevant for that purpose (although of course, on classical principles of the law of contract, the factual matrix in which the contract was made would have been relevant for the purpose of construing the written terms). This is the context within which the dictum of the Employment Appeal Tribunal must be seen.
54. If, however, the parties had not intended the document to embody the terms of the contract fully, it would not be necessary for the Tribunal to find the contract to be a sham, or to have been varied, before it looked at oral agreement or subsequent dealing. On the principles set out in Carmichael it would have been fully entitled to look at these matters.
55. In Real Time Civil Engineering the question was whether a light goods vehicle driver was an employee. He drove a vehicle owned and insured by the respondents. He took day to day instructions from their management. He worked core hours on Monday to Friday, and was expected to work on Saturdays. In August 2003 he signed a document which described itself as a "self employed contract for services". A provision in this agreement expressly conferred on him an unfettered and unlimited right to send a substitute or delegate. The Tribunal, finding that in practice he was not allowed to send a substitute or delegate, held that there was the necessary obligation to work personally, and that the driver was an employee.
56. Reversing the decision of the Tribunal, HHJ Clark held –

"It is now clear that the question for the Tribunal is not how the contract operated in practice, but what was the intention of the parties. In order to establish what the intention was, it may sometimes be permissible to look at the overall factual matrix, as the House of Lords made clear in the case of Carmichael. However, how the contract operates in practice is no basis for simply displacing an express term in the written agreement."

57. As Judge Clark had noted, the "self employed contract for services" had been referred to in the reasoning of the Tribunal without any suggestion that it did not reflect the terms of the agreement made between the parties. That is a crucial point to keep in mind. If a written agreement was not intended by the parties fully to record the agreement between them, the Tribunal may, as Carmichael makes clear, look at the wider picture in ascertaining the terms of the contract.

Application

58. It is plain that the Chairman did not consider himself to be restricted to the written and signed contractual documentation. The key question, to my mind, is whether he was justified in law in looking, as he did, at facts both prior to and subsequent to the written contractual documentation in concluding that Dr Kettle was an employee. For the reasons I have given, I reject Mr Savill's submission that the Chairman was restricted to considering whether the terms of the written agreement were varied or were a sham. The Chairman was entitled to look at the overall picture if he considered that it was not the intention of the parties, objectively ascertained, that all the terms of the contract should be contained in the contractual documentation.
59. To my mind it is plain that the Chairman proceeded on the basis that it was not the intention of the parties that all the terms of the contract should be contained in the contractual documentation. He did not explicitly set out his reasoning in this way, but that is not, to my mind, fatal to his decision: the Tribunal in Carmichael did not do so, but the House of Lords approved its approach nonetheless. Moreover, in my judgment, the Chairman was plainly and unarguably right to proceed on the basis that it was not the intention of the parties, objectively ascertained, that all the terms of their contract should be contained in the contractual documentation.
60. As the Chairman correctly found, the contractual documentation did not match the advertisement Dr Kettle had answered, following which she had successfully applied for the job. As the Chairman also found, Dr Kettle had questioned the appropriateness of the documentation. On examination the documentation is plainly inappropriate in certain respects to what the parties agreed.
61. A convenient starting point is clause 7.1, which taken at face value required Dr Kettle to maintain an organisation with facilities and employees. Quite plainly no such organisation was envisaged. Dr Kettle was, as the advertisement makes clear, to be a specialist orthodontist consultant working in the MOD's clinic. This immediately throws doubt also on clause 5, which apparently permits Dr Kettle to use sub-contractors. The nature of the job advertisement, which plainly envisaged employment to work personally, the express finding of the Tribunal Chairman that Dr Kettle told the MOD she would not be able to find replacements, and the express finding of the Tribunal Chairman that the MOD found and paid for replacements, are taken together a sufficient basis for the Tribunal Chairman's conclusion that she was contracted to work personally. He did not err in law in reaching this conclusion.
62. Nor, in my judgment, did the Tribunal Chairman err in law in concluding that there was mutuality of obligation. It is true that neither the advertisement nor the contractual documentation themselves contained an express term as to the amount of work Dr Kettle would do. Both, however, envisaged that this would be agreed by Dr Kettle with the MOD. Once the amount of work was agreed, both the advertisement and the contractual documentation envisaged that there would be mutually binding obligations. Hence the requirement, in clause 8 of the contractual documentation, for a termination provision applicable to the contract or any part of the services.
63. Once granted that the Tribunal Chairman was entitled to look outside the four corners of the contract documentation, as I conclude that he was, his conclusion that Dr Kettle was an employee of the MOD is not in my judgment perverse. It is a striking feature of the case that the MOD had advertised for an employee, interviewed Dr Kettle for the advertised post, and told her that she was successful before producing contract documentation which is difficult to reconcile with the job which had been advertised and which it was intended she would do.
64. For these reasons the appeal will be dismissed.