Cornwall County Council v Prater

A succession of separate work assignments may constitute successive contracts of employment even though neither party must offer or accept another assignment after the current one ends. The necessary mutuality exists during an assignment where the worker must perform the agreed work and the employer must provide and pay for it. No additional obligation extending beyond that assignment is required.

Where each assignment is a contract of service, gaps between assignments may be bridged under section 212 of the Employment Rights Act 1996 if they result from a temporary cessation of work. The absence of an overarching contract does not prevent statutory continuity on that basis.

A local authority engaged a home tutor under numerous separate assignments between 1988 and 1998. She could refuse a proposed pupil, and the authority did not have to offer further pupils. Once she accepted an assignment, however, she had to teach that pupil and the authority had to provide and pay for the work.

The employment tribunal unanimously found that each assignment was a contract of service. It further found that the intervening gaps were temporary cessations of work under section 212(3)(b) of the Employment Rights Act 1996, producing continuous employment from April 1988. The Employment Appeal Tribunal dismissed the authority's appeal.

The authority appealed on the ground that each assignment lacked the continuing mutuality of obligation required for a contract of employment. The central issue was whether mutual obligations confined to each assignment were legally sufficient, notwithstanding the absence of any obligation to offer or accept future work.

1. Appeal dismissed unanimously. The employment tribunal was entitled to find that each individual teaching assignment was a contract of service. The Employment Appeal Tribunal had therefore correctly dismissed the authority's appeal.

2. Per Mummery LJ, the required mutuality existed within each assignment. The tutor was obliged to teach the pupil whom she had accepted, while the authority was obliged to make that work available and pay her for performing it. Those obligations were legally sufficient. It was unnecessary for the authority also to be obliged to offer another assignment after the existing one ended, or for the tutor to be obliged to accept one.

3. The authorities concerning casual workers and umbrella contracts did not establish a requirement for mutual obligations extending beyond each separate contract. O'Kelly v Trusthouse Forte plc, Clark v Oxfordshire Health Authority, Carmichael v National Power and Stevedoring v Fuller were distinguishable. They concerned the absence of an overarching contract or working arrangements which lacked mutual obligations, rather than a succession of assignments within each of which binding obligations existed.

4. Longmore LJ agreed that the exchange of payment for the agreed tuition supplied sufficient mutuality, provided the other indications of employment were present. The absence of any duty to offer or accept future work would have defeated a claim based on a global contract, but no such claim had been advanced.

5. Lewison J emphasised that mutuality addresses whether a contract exists and is not the complete test for classifying an existing contract as one of service. The tribunal had nevertheless applied the relevant question correctly, and alleged lack of mutuality was the only ground of appeal.

6. Once the assignments were classified as contracts of service, section 212(3)(b) of the Employment Rights Act 1996 could bridge the gaps between them. The tribunal's finding that those gaps resulted from temporary cessations of work was a finding of fact and was not challenged. The tutor consequently had continuous employment from 1 April 1988. The court declared that she was an employee of the authority from that date to the date of judgment.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 102, unanimously dismissed the local authority's appeal and declared that the tutor had been its employee from 1 April 1988 to the date of judgment.
2. Employment Appeal Tribunal: On 8 June 2005, dismissed the authority's appeal. It held that the employment tribunal had correctly classified each assignment as a separate contract of employment and had correctly applied section 212 of the Employment Rights Act 1996.
3. Employment tribunal: Unanimously held that the tutor was an employee from 1 April 1988. Each assignment was a contract of service, and the gaps between assignments were bridged as temporary cessations of work under section 212.