Bebbington v. Palmer (t/a Sturry News)

A child who performs work is not necessarily employed under a contract of service. The question remains whether the ordinary requirements of employment are satisfied. Mutuality of obligation is an irreducible minimum. Where the individual is not obliged to undertake work offered, and may arrange for another person to do it, the requirement is absent.

Section 18 of the Children and Young Persons Act 1933 regulates the employment of children. It does not deem every child who works to be an employee. The term employment may include work performed under a contract for services, with child-protection requirements addressed through permits and local-authority byelaws.

The claimant, aged 14 and 15, delivered newspapers for the proprietor of a newsagent. The arrangement was verbal. He was paid for days worked, was not obliged to attend, could arrange for someone else to undertake the round, and was not paid when absent.

After the Employment Tribunal found that he was not employed, it dismissed claims for unfair dismissal and breach of contract. The claimant appealed, challenging the findings on mutuality, the approach to the contract terms, the effect of child-employment legislation, and the possibility of joining separate periods of work under sections 210 and 212 of the Employment Rights Act 1996.

1. Appeal dismissed. The Employment Tribunal’s conclusion that there was no contract of employment was firmly based on findings supported by the evidence.
2. The ordinary test for a contract of service requires the individual to provide personal work and skill, sufficient control by the putative employer, and contractual provisions consistent with employment, as stated in Ready Mix Concrete v Ministry of Pensions and National Insurance [1968] 2 QB 497. Mutuality of obligation is an irreducible minimum, as explained in Carmichael v National Power [1999] ICR 1226.
3. The Tribunal was entitled to find that the claimant was not obliged to work when asked. He could decline the work, arrange for another person to perform the round, or fail to attend. That finding was sufficient to establish the absence of mutuality, even if the respondent had been obliged to provide work.
4. The Tribunal’s other findings were consistent with that conclusion. There was no disciplinary or grievance procedure, no entitlement to payment during illness or holidays, no agreed holidays, and flexibility as to attendance and delivery time.
5. Section 18 of the Children and Young Persons Act 1933 restricts and regulates children’s employment. It does not provide that a child working within its scope is necessarily employed under a contract of service. “Employment” should be interpreted broadly enough to include contracts for services, while permits and local-authority byelaws may provide the necessary protections.
6. The proposed argument that separate occasions of work should be joined under sections 210 and 212 of the Employment Rights Act 1996 had not been advanced below. The relevant facts had not been explored. In any event, the Tribunal had found that there was no overarching contract and that the work performed on any particular day was not under a contract of employment.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal at Ashford dismissed. The Tribunal’s decision dated 25 February 2009, with Reasons sent on 13 March 2009, was upheld.