Drake v Ipsos Mori UK Ltd

For an individual assignment, the mutual obligations to perform work and to pay for it establish a contract while the assignment continues. This remains so even where either party may end the assignment at will.

Whether that contract is a contract of employment requires the ordinary analysis of personal service, control, and the consistency of the remaining terms with a contract of service. A right to withdraw current work is not, by itself, incompatible with employment status.

The claimant worked as a market-research interviewer under successive assignments. He accepted that neither side was obliged to offer or accept future work. He contended that each accepted assignment was a contract of employment.

The Employment Tribunal dismissed his unfair-dismissal claim. It held that there was no mutuality of obligation between assignments or during an individual assignment, principally because either side could withdraw an assignment before completion.

On appeal, the central issue was whether that conclusion was legally sustainable and, if not, whether the Appeal Tribunal could itself determine that the individual assignments were contracts of employment.

1. Appeal allowed. The Employment Judge erred in treating the ability of either party to end an assignment before completion as decisive of an absence of mutuality.

2. There was plainly a contract while the claimant was carrying out an accepted assignment. He agreed to undertake work and the respondent agreed to pay for it. Those obligations supplied the requisite mutuality even if either party could terminate the contract at will. The respondent’s handbook correctly described acceptance of an assignment as a contract.

3. The Tribunal had to keep distinct the existence of a contract and its classification. Once a contract existed, the question whether it was a contract of employment required application of the criteria in Ready Mixed Concrete: personal service for remuneration, sufficient control, and terms otherwise consistent with a contract of service. A right to terminate current work at will did not itself prevent the contract from being one of employment.

4. McMeechan and Stephenson supported that conclusion and were followed. Little v BMI Chiltern Hospital was not followed insofar as it treated a right to withdraw work during an assignment as inconsistent with a contract of employment.

5. The Appeal Tribunal could not substitute its own conclusion on employment status because findings were still required on personal service, control, and the other contractual terms. The case was remitted for a fresh hearing before a different Employment Judge.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the case for a fresh hearing before a different Employment Judge.
• Employment Tribunal: On 1 August 2011, dismissed the unfair-dismissal claim after holding that the claimant was not an employee.