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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Stephenson v. Delphi Diesel Systems Ltd [2002] UKEAT 1314_01_1111 (11 November 2002) URL: https://www.bailii.org/uk/cases/UKEAT/2002/1314_01_1111.html Cite as: [2003] ICR 471, [2002] UKEAT 1314_01_1111, [2002] UKEAT 1314_1_1111 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE ELIAS
MR H SINGH
MR D SMITH
![]() ![]() ![]() | APPELLANT |
![]() ![]() ![]() ![]() ![]() ![]() ![]() | RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised 7 February 2003
For the Appellant | MISS COOK (of Counsel) Instructed by: Messrs Bates ![]() ![]() 29 Lower Brook Street Ipswich Suffolk IP4 1AQ |
For the Respondent | MR G MANSFIELD (of Counsel) Instructed by: EEF Broadway House Tothill Street London SW1H 9NQ |
THE HONOURABLE MR JUSTICE ELIAS
The Background
The Contractual Arrangements
3 "The persons employedwill
be subject to all relevant statutory requirements and current legislation together
with
compliance
with
all
Delphi
rules and procedures.
4 Temporary employeeswill
be
vetted
by Select Technical Services prior to engagement, they
will
be expected to carry out the assignments designated by
Delphi
and should they prove unacceptable then they
will
be removed immediately at the request of
Delphi
Human Resources Department."
And then there are other provisions stipulating that Delphi
can set the
working
hours and shift patterns and rates of pay and allowances and so forth.
4.2 "Subject to any statutory entitlement under the relevant legislation, the TemporaryWorker
is not entitled to receive payment from the Employment Business or Clients for time not spent on Assignment,
whether
in respect of holidays, illness or absence for any other reasons unless otherwise agreed."
8.1 "The TemporaryWorker
is not obliged to accept any assignment offered by the Employment Business but if he does so, during every Assignment and afterwards
where
appropriate, he
will:
a) co-operatewith
the Client's Staff and accept the direction, supervision and control of any responsible person in the Client's organisation;
b) observe any relevant rules and regulations of the Client's establishment towhich
attention has been drawn or
which
the Temporary
Worker
might reasonably be expected to ascertain;
c) unless arrangements have been made to the contrary, conform to the normal hours ofwork
in force at the Client's establishment."
And then there are other matters dealing with
health and safety and not acting contrary to the Client's interests.
9.1 "The Employment Business or the Client may,without
prior notice or liability, instruct the Temporary
Worker
to end an Assignment at any time.
9.2 The TemporaryWorker
may terminate at any time immediately by informing the Employment Business."
The Relevant Law
46 "Whatever
other developments this branch of the law may have seen over the years, mutuality of obligation and the requirement of control on the part of the potential employer are the irreducible minimum for the existence of a contract employment: see Nethermere (St Neots)
Ltd
![]()
v
Gardener [1984] ICR 612, 623 per Stevenson LJ approved in Carmichael
v
National Power Plc [1999] ICR 1226, 1230 per Lord Irvine of Lairg LC."
40 "For my part Iwould
accept that an offer of
work
by an agency, even at another's
workplace,
accepted by the individual for remuneration to be paid by the agency, could satisfy the requirement of mutual obligation. I put it no higher because it
would
be necessary to look at the circumstances carefully and realistically. It may, for example, be more difficult to find that necessary mutuality in a
very
short assignment as opposed to one
which
![]()
was
or had become more permanent."
The Decision of the Industrial Tribunal
7 "It is at the heart of the contract between the Applicant and Select that hewas
under no obligation to accept any assignment offered and that is a ruling obligation. It is not existing merely at the beginning, it is at each and every assignment and that means each and every day, each and every pay period. Each time he
went
to
work,
he
went
not under any obligation to accept it but freely and
voluntarily
accepting it, obviously to obtain income.
8 It seems to me therefore at the heart of this arrangement, it is not the arrangement that is canvassed in MotorolaLtd,
so far as one can read of it in the decision, but a different arrangement
which
had at its heart an absence of mutuality of obligation between the Applicant and the Respondent. He could have
walked
off the job at any time, indeed this is the evidence I have from the Respondent and there
would
have been no recriminations, just no pay."
Accordingly, it was
the Appellant's right to
walk
off the job
which
was
found to preclude any mutuality of obligation.
9 "Secondly, I do also find that there did not exist that degree of exclusive control over the Applicant's conduct of his affairs as seems to have been reflected in Motorola. Itwas
at the point of control that the Motorola case turned and I find that Mr McKenna and discreet obligations towards the agency staff
which
he performed and they knew about so that Select, in the person of Mr McKenna had a presence at the Respondent's premises and effective control of the running of the contract. It
was
not a contract of employment, but it
was
obviously a contract for services. The effective control of that
was
ultimately
with
Mr McKenna to
whom
the Applicant could go over Samantha's head if he had problems or disputes,
which
he could not settle."
The reference to "Samantha" there is to the individual who
was
given supervisory function over the Appellant at the
work
place.
The Grounds of Appeal
(1) "In a case like the presentwhere
the money claimed is related to a single stint served for one individual client, it is logical to relate the claim to employment status to the particular job of
work
in
which
respect of
which
payment is being sought. I note that the editors of Harvey on Industrial Relations and Employment Law appear to take a similar
view,
![]()
where
they suggest, at paragraph A53:
"the betterview
is not
where
the casual
worker
is obliged to turn up for, or do, the
work
but rather if he turns up for, and does the
work,
he or she does so under a contract of service or for services"."
We
should point out that in that case the issue
was
whether
there
was
a contract
with
the agent and not
with
the client.
Conclusion
"If the Tribunal had asked itself that question and answered it in accordancewith
the evidence it
would,
![]()
we
think, be bound to have come to the conclusion that there
was
no contractual relationship between Mr O'Murphy and Hewlett-Packard. No suggestion
was
made that these
were
not genuine contracts entered into contemporaneously. In those circumstances they could not be dismissed as the Tribunal dismissed them of no materiality."
"Therewere
two relevant contracts
which
governed the responsibility of the parties to this case. There
was
a contract between the agency and the contractors and a contract between the agency and the Applicant. There
was
not, however, any contract of employment between the contractors and the Applicant.
We
are of the opinion the essential facts in this case are clear. The Applicant chose to operate on a self-employed agent basis as he
was
paid tax-free and had to submit invoices to the agency. He did not receive holiday or sick pay. No notice provisions. It
was
provided
with
no other benefits associated
with
being an employee.
By determining that the Applicant's position of self-employmentwas
a "device" used by the contractors to avoid the statutory duties,
we
consider the Tribunal lost sight of the facts that clearly indicated the Applicant could not be an employee of the contractors."
The Issue of Control
Conclusions