The case of R v Pola concerned a group of Slovakian nationals working in the UK. The men were working on a building site for the company Pola on a casual basis. There was no obligation on them to turn up for work, but if they did so they would be paid a day's wages. The men were also under no obligation to return to work, in fact evidence produced at trial indicated that they considered themselves to be free to return to Slovakia at any time.

Following an injury to one of the men, the Health and Safety Executive brought a prosecution against Pola under s.2(1) of the Act – 'General duties of employers to their employees'.

Pola resisted the charge on the basis that the men were not employees of the company. Pola was convicted and appealed.

On appeal the court found that there was ample authority for the proposition that a worker who was under no obligation to work and who chose when he would turn up for work might, nonetheless, be under a contract of employment during the period he was working.

The court also found that the obvious inference from the circumstances of turning up for work was that the worker was expected to work during that day and be paid for that work at the end of it. This inference was supported by evidence that Pola sometimes provided transport for the workers and brought them their lunch.

The court concluded that Pola would not carry out these acts if there was no contract of employment.

Wragge & Co's experts provide points for employers to consider in light of this case.