Saha v Viewpoint Field Services Ltd (Contract of Employment)

An overarching arrangement for ad hoc work is not a contract of employment where neither party is obliged to offer or accept work between assignments. Mutuality of obligation is a distinct precondition to the ordinary employment-status criteria.

A regular and lengthy course of dealing may, in principle, create binding mutual obligations despite freedom to refuse individual shifts. Whether it has done so is a question of fact. An appellate court will not disturb a sustainable factual finding that no such obligations arose.

A claimant cannot establish an unfair dismissal claim by characterising individual assignments as contracts of employment where the complained-of termination was solely that of a non-contractual umbrella arrangement.

The claimant worked as an ad hoc telephone interviewer from 2006. Her hours varied, although she worked in most weeks. The Employment Tribunal, London (South), found that the respondent was not obliged to offer work and that the claimant was not obliged to accept it or to complete work she had accepted.

The Tribunal accordingly held that there was no mutuality of obligation in the continuing arrangement and struck out the claimant’s unfair dismissal claim on the basis that she was not an employee. The claimant appealed, relying on the application form, the regular course of dealing, and an alternative contention that each assignment was a contract of employment capable of providing sufficient continuity under section 108 of the Employment Rights Act.

1. Appeal dismissed. The Employment Judge made a clear and permissible finding that the respondent had no obligation to offer any particular shifts and the claimant had no obligation to accept them. She could also cancel availability without repercussions. That finding defeated the alleged contract of employment at umbrella level.
2. Although the ordinary Ready Mix Concrete criteria would otherwise point towards employment, mutuality of obligation was a separate and necessary precondition. The application form’s statement that two shifts per week were required did not displace the Employment Judge’s factual finding as to the parties’ actual obligations.
3. The Tribunal accepted the guidance in St Ives Plymouth Ltd v Mrs Haggerty, UKEAT/0107/08 (unreported). A course of dealings can create legal obligations between periods of work, even where a casual worker may refuse a shift. The question is whether the facts support an inference that legal, rather than merely practical or commercial, obligations have arisen. Here, the Employment Judge had considered the evidence and reached a conclusion that was not perverse. The length and regularity of the engagement, the importance of the work, holiday-pay arrangements, and the employer’s description of the claimant as an employee could have supported a different factual finding, but did not make the actual finding erroneous in law.
4. The alternative assignment-based case had not been advanced before the Employment Tribunal. It was in any event ineffective. Even if individual assignments were contracts of employment and continuity could be established under section 108 of the Employment Rights Act, the alleged dismissal was the termination of the overall arrangement, not the end of the final assignment. The overall arrangement was not a contract of employment.

• Employment Appeal Tribunal — dismissed the claimant’s appeal.
• Employment Tribunal, London (South) — held that the claimant was not an employee and struck out her unfair dismissal claim.