Knight v. BCCP Ltd

A contract of employment requires the irreducible minimum of mutual obligations. The individual must be obliged to provide work, and the putative employer must be obliged to provide work or remuneration of the relevant kind. An expectation of receiving work is not an obligation. Where mutuality is absent, it is unnecessary to examine the other elements of the employment test. Findings about contractual obligations inferred from oral exchanges and conduct are findings of fact and will not be disturbed absent perversity.

The claimant worked as a licensed private hire driver for the respondent for a short period. He supplied and operated his own vehicle, bore its running costs, invoiced for work done, paid his own tax and national insurance, and had no fixed working hours. The Employment Tribunal held that he was a worker but not an employee, and therefore had no right to statutory notice under Employment Rights Act 1996, section 86. On review, it maintained that decision.

The claimant appealed, alleging that the Tribunal had misapplied the employment test and failed to give proper weight to mutuality, personal service and control. The central issue was whether the working arrangement contained the mutual obligations necessary for a contract of service.

1. The appeal was dismissed. The Employment Tribunal was entitled to find that the claimant was not an employee and therefore had no entitlement to notice under section 86 of the Employment Rights Act 1996.

2. The applicable test was that stated in Ready Mixed Concrete (South East) v Minister of Pensions [1968] 1 All ER 433: a contract of service requires the individual to provide work and skill for remuneration, sufficient control by the putative employer, and contractual terms consistent with employment. All three requirements must be satisfied, although they need not be considered in that order.

3. The claimant accepted that he could decline to work on a particular day and that the respondent was not obliged to provide him with any particular number of jobs. His expectation of earning a stated amount did not create an obligation. There was therefore no mutuality of obligation, and the first requirement of the Ready Mixed Concrete test was not met.

4. The Tribunal’s findings about the contractual obligations, derived from the evidence and oral exchanges, were findings of fact: Carmichael v National Power plc [1999] 1 WLR 2042. No perversity had been alleged, and in any event the high threshold described in Crofton v Yeboah [2002] IRLR 634 was not met.

5. Since mutuality was absent, it was unnecessary to decide whether control and the other preconditions for a contract of service were satisfied. The burden of proving employee status lay on the claimant, and he had not discharged it.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s decisions of 18 June 2009 and 1 December 2009.
• Employment Tribunal: held that the claimant was a worker but not an employee, and was not entitled to statutory notice under section 86 of the Employment Rights Act 1996.