Breakell v West Midlands Reserve Forces' and Cadets' Association Named As Shropshire Army Cadet Force

Mutuality of obligation is not a necessary condition of a contract personally to do work under section 68(1) of the Disability Discrimination Act 1995. However, where the facts establish that neither party is obliged to offer or accept work, the relationship does not constitute employment for that purpose. Obligations arising when work is actually undertaken do not necessarily create employment if there is no underlying obligation to provide or perform work. An appellate tribunal will uphold the employment tribunal’s factual conclusions where they were reached on the evidence and are not perverse.

An Army Cadet Force Adult Instructor appealed against a pre-hearing review decision that he was a volunteer rather than employed under section 68(1) of the Disability Discrimination Act 1995. The Employment Judge found that the Respondent was not obliged to provide training days and that the Claimant was not obliged to attend them. He was paid only for days actually worked.

The appeal challenged the approach to mutuality of obligation, argued that the Claimant was employed whenever he was working, and relied on further arguments concerning continuity of employment and discrimination connected with an engagement. The central issue was whether the arrangements amounted to employment within the statutory definition.

1. Appeal dismissed. The Claimant was a volunteer and not employed within section 68(1) of the Disability Discrimination Act 1995.
2. Mutuality of obligation is not a condition of a contract personally to do work. The statutory definition requires a contractual obligation personally to do work, but does not necessarily require reciprocal obligations to offer and accept work.
3. On the Employment Judge’s findings, however, the Claimant was under no obligation to attend any training days and the Respondent was under no obligation to provide any. The arrangements therefore lacked mutuality in fact. The possibility of a contractual claim for payment for work actually performed did not alter that conclusion. The alleged power to recover losses for non-attendance was also rejected as inconsistent with the practical effect of the arrangement.
4. The argument that the Claimant was employed whenever he was actually working could not succeed on the findings made. The Employment Rights Act 1996, section 212, was not raised below and did not apply to the appeal.
5. Arguments based on a European definition of worker and on the close connection between discrimination and employment were either unsupported or raised for the first time on appeal. Relaxion Group plc v Rhys-Harper was inapplicable: it concerned discrimination against former employees and did not extend to a person employed only during particular engagements where section 212 did not provide continuity.
6. The Employment Judge had considered the evidence and was entitled to reach his conclusions. The decision was not perverse.

• Employment Appeal Tribunal: Appeal from the decision of Employment Judge Ashton at a pre-hearing review on 7 April 2010, sent to the parties on 7 May 2010. Appeal dismissed.