In two cases during the summer break, the EAT has looked at whether casual workers can bring employment protection claims based on their status as employees.
In the first case, Pulse Healthcare v Carewatch Care, five care workers were employed by Carewatch under so-called "zero hours contracts" and supplied to a PCT to provide round the clock care for a severely disabled individual. The contract was re-tendered, Pulse Healthcare took over and the carers claimed that their employment had transferred under TUPE to Pulse, leading to an initial question arising as to whether they were employees.
Under the contracts, Carewatch was under no obligation to provide work and the carers were free to work elsewhere. However, the Tribunal, whose decision the EAT upheld, found that this did not reflect the true agreement between the parties which was that the employees worked fixed hours on a regular basis. The contracts made repeated mention of employment and contained the tell-tale references to issues such as annual leave, sickness, pension and uniforms. The EAT commented that in a critical service such as this, it was clear that the employer would not be able to rely on ad-hoc arrangements.
There are two routes for casual workers engaged on a series of assignments to argue that they are employees: first, that they are employed under a global or "umbrella" contract and/or, second, that there is a succession of individual contracts. The claimants in the Pulse Healthcare case succeeded in both arguments. In the second case, Drake v Ipsos Mori UK Ltd, the umbrella contract argument was not used but the EAT concluded that the Tribunal had come to the wrong decision when it held that a market researcher working on a series of interviewing assignments could not be an employee because the assignments could be terminated by either side at will.
The EAT's view was that the fact that either side could withdraw a particular assignment prior to completion did not prevent there being a contract of employment during the time that the claimant was actually on an assignment.
Neither of these cases should come as a surprise but the first one in particular is a reminder that, following last year's Supreme Court decision in Autoclenz v Belcher, tribunals are prepared to look beyond the terms of a written agreement to see if it reflects the true nature of the relationship, particularly for more junior roles where there is some inequality of bargaining power between the parties.