EAT (Judge David Richardson) 25/07/2012

An employment judge erred when he held that a market research interviewer, who had been working on an assignment basis only, was not an employee. There was mutuality of obligation sufficient to create a contract of employment for each assignment, even if the contract was terminable at will.

The appellant market research interviewer (D) appealed against a decision of an employment judge that he was not an employee of the respondent market research company (M).

D was engaged by M on an assignment basis only. He was not issued with a contract of employment or any statement of terms and conditions, although M had various guides and a handbook. M’s handbook stated that there was no obligation on it to offer work to any individual interviewer, no interviewer was obligated to accept the work offered and acceptance of an assignment was considered to be a verbal contract. D brought a claim for unfair dismissal.

The judge found that D was not an employee because there was no mutuality of obligation from one assignment to another or during the course of any individual assignment.

D submitted that the employment judge’s conclusion that there was no mutuality of obligation was perverse.

HELD: There was no doubt that a contract was in place and the requisite mutuality when D was undertaking an assignment for M, Stephenson v Delphi Diesel Systems Ltd [2003] I.C.R. 471 and McMeechan v Secretary of State for Employment [1997] I.C.R. 549 applied.

 The fact that the assignment could be brought to an end did not mean that there was no contract in existence while the assignment was continuing. Plainly there was a contract while the assignment was continuing: there was an agreement to undertake work in return for payment. When M in its handbook described the acceptance of an assignment as a “contract” it was correct.

The fact that either side might terminate the contract at will did not mean that there was no contract. Accordingly, the employment judge’s decision could not stand. However, the instant tribunal would not be entitled to substitute its own decision on the question of whether D was employed under successive contracts of employment and findings would be required on the conditions set out in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 Q.B. 497, Ready Mixed Concrete applied.

 It seemed plain, but the employment judge would need to find, that under each contract D was obliged to work personally for M unless and until he returned or completed the assignment or M withdrew it. A fresh hearing was ordered (see paras 32, 46-50, 54 of judgment).

Appeal allowed