The EAT has held in North Wales Probation Area v Edwards that a worker who worked on a casual basis was employed under a contract of employment for each session of work.
Mrs Edwards worked under a "Relief Hostel Worker Contract" on a casual basis. Her contract stated that the hostel was under no obligation to provide her with work, that she was not obliged to accept their offer of work and that she could make direct arrangements with another relief hostel worker to cover a shift for her. The Probation Service argued that there was no mutuality of obligation under Mrs Edwards' contract and therefore that it was not a contract of employment.
However, the EAT considered that a contract of employment was formed when Mrs Edwards actually came to work. At that point she was bound to carry out the work personally and could not leave or ask someone else to replace her part way through a shift. There was a contract of employment during each session but not during the periods when Mrs Edwards did not attend work. Mrs Edwards was therefore an employee for the purposes of the Disability Discrimination Act 1995 and could bring a claim for disability discrimination for which no continuity of employment is required.
Impact on employers
Employers should be aware that separate employment contracts can exist for each period during which a casual worker actually works, even though they are under no obligation to accept any particular offer of work and can send a substitute in their place. Whilst the individual contracts may not be long enough to confer sufficient continuity for an unfair dismissal claim, the employer may be liable for discrimination and other claims for which no continuity of employment is required.