The case of Drake v Ipsos Mori UK Ltd is another reminder of the difficulties involved in determining the employment status of casual workers.

Mr Drake worked for five years as a market researcher under a succession of individual assignments. He had no contract of employment, and was free to accept or reject work offered to him. Ipsos Mori was under no obligation to offer him work. When Ipsos Mori removed him from its interviewing panel, Mr Drake claimed that he was an employee and was therefore eligible to bring an unfair dismissal claim.

The employment tribunal concluded that Mr Drake could not be an employee because there was no mutuality of obligation between the parties during an assignment and from one assignment to another. In particular, assignments could be terminated by either party before they had been completed. Having reached this conclusion, the tribunal did not go on to look at other tests for employment status.

The EAT overturned the tribunal’s decision, finding that there was sufficient mutuality of obligation at least during each assignment to give rise to a contract of employment. Crucially, the company’s handbook stated that assignments were verbal contracts once they had been accepted, which had to be completed within a specified timeframe. In the EAT’s view, the fact that either party could terminate the contract at will was not inconsistent with the existence of an employment contract. However, the EAT has not ruled on Mr Drake’s actual employment status. The case has been remitted to the tribunal to look at the other tests for employment status, for example, the degree of control exercised by Ipsos Mori. Another key issue for the tribunal will be to determine whether there was an ‘umbrella contract’ in place linking each assignment in order to give Mr Drake sufficient continuity of service to bring an unfair dismissal claim.