This latest EAT decision serves as a reminder that casual workers may be found to provide their services under a contract of employment, even though they work on an ad hoc basis, have long periods of inactivity between assignments and may be terminated at will.
Mr Drake worked for Ipsos Mori UK Limited as a market researcher under a succession of individual assignments from 2005 to 2010. At the outset, it was explained to Mr Drake that he would be engaged on an assignment basis only, that there was no obligation on him to accept work and no obligation on the company to offer assignments. Mr Drake was not issued with a contract of employment or any statement of terms and conditions of employment. Indeed there was no contractual document as such. There were, however, some potentially relevant guides, one of which expressly stated that Mr Drake was a worker rather than an employee; and a handbook for interviewers which stipulated 'Once you have accepted the job, it is considered as a verbal contract that you will complete the job within the deadline and according to the survey specifications.'
When, in November 2010, the company removed Mr Drake from its panel of interviewers, he claimed unfair dismissal arguing that each individual assignment was a contract of employment. However the company argued successfully in the employment tribunal that there was no mutuality of obligation and, therefore, Mr Drake was not an employee.
On appeal, the EAT overturned the tribunal’s decision and accepted Mr Drake’s argument that there was sufficient mutuality of obligation for an employment relationship. It was held that Mr Drake had been engaged on a series of contracts, and under each contract he was obliged to work personally for the company until he returned or completed the assignment, or it was withdrawn. Also, the fact that the assignment could be brought to an end at will did not mean that there was no contract in existence while the assignment was continuing.
The case has now been referred back to the employment tribunal to consider Mr Drake’s actual employment status and whether he had sufficient continuous service to pursue a claim for unfair dismissal.
This case once again highlights the dangers employers can face when engaging casual workers as the absence of an obligation to provide or accept work will not, by itself, be determinative of the individual’s true employment status.