The claimant in Saha v Viewpoint Field Services Ltd worked as a telephone operator for a market research company.  The application form she had completed in 2006 asked for availability for three separate shifts each day; she was required to commit to at least two shifts per week.  In practice, the arrangement was that, each week, the claimant would email her availability for the next week.  The company had apparently always referred to her as an employee and she had worked for between seven and 43 hours each week until her position was terminated in 2012.

Nevertheless, the Tribunal found that she could not pursue an unfair dismissal claim because she was not an employee.  The evidence showed that if work was not available the claimant would not work even if she said she was available.  She was also able to cancel her availability after she had committed to work even if work was available.

The EAT agreed that because there was no obligation to provide or take work, the essential element of "mutuality of obligation" to make her an employee was missing.

The EAT Judge expressed considerable sympathy for the claimant and commented that this is an area "crying out for some legislative intervention".  He also gave tacit approval to an alternative argument that she was an employee when working on specific assignments and that the series of contracts gave her sufficient continuity of employment, commenting that the Tribunal might have investigated this, given that the claimant was representing herself.  He concluded it was not a runner because it was not the termination of any particular assignment that she was complaining of but the ending of the umbrella arrangement, which was not a contract of employment.