Clark v Oxfordshire Health Authority

A continuing “global” or “umbrella” contract of employment requires some mutuality of obligation throughout the relevant period. The obligations need not always concern providing and performing work; other reciprocal obligations may suffice. Where neither party is obliged to offer or accept work, and no other continuing obligation binds them, no global contract exists. Separate contracts of service may arise for particular engagements. Where employee status depends on documents and factual evaluation, an appellate tribunal may interfere only for an error of law or where no reasonable tribunal could have reached the decision. Unaddressed questions concerning individual engagements and dismissal should be remitted.

Mrs Clark claimed unfair dismissal and race discrimination, asserting that she had been employed as a bank nurse by Oxfordshire Health Authority from January 1991 until 27 January 1994.

The Industrial Tribunal found that neither party was obliged to offer or accept work and dismissed the application. The Employment Appeal Tribunal, by a majority, held that the documents created a continuing contract of employment and remitted the remaining issues. The Authority appealed.

The Court of Appeal considered whether a global contract existed and whether individual engagements could separately constitute contracts of service.

1. Appeal allowed. No global contract of employment existed between the parties during the relevant period.
2. Under section 153(1) of the Employment Protection (Consolidation) Act 1978, a contract of employment may be express or implied. A global or umbrella contract nevertheless requires some mutual obligations subsisting throughout the relevant period.
3. Those obligations need not always be obligations to provide and perform work. An obligation to accept work when offered, coupled with an obligation to pay a retainer when work was unavailable, might suffice. Here, the Authority was not obliged to offer work and Mrs Clark was not obliged to accept it. No other continuing obligation bound the Authority. The confidentiality obligation arose from previous engagements and could not establish the necessary mutuality.
4. The Employment Appeal Tribunal therefore erred in treating the contractual documents and their employment-related provisions as establishing a continuing contract.
5. A particular engagement could nevertheless be severed from the general arrangement and might itself constitute a contract of service. The Industrial Tribunal had not considered that issue, or whether there had been a dismissal and when it occurred.
6. The matter was remitted to the Industrial Tribunal to determine the remaining issues relevant to the unfair-dismissal claim. The appeal was allowed with costs. Lord Justice Schiemann and Lord Justice Beldam agreed with Sir Christopher Slade.

• Court of Appeal (Civil Division): allowed the Authority’s appeal, declared that no global contract existed, and remitted the remaining issues.
• Employment Appeal Tribunal: allowed Mrs Clark’s appeal by a majority and held that the relationship was governed by a contract of employment.
• Industrial Tribunal: dismissed Mrs Clark’s application on the employee-status issue.