The EAT case of Ministry of Defence HQ Dental Service v Kettle is a recent decision building on a long line of cases as to how to decide whether a contract is one of employment. It focuses particularly on the formation of a contract, the parties’ understanding of the relationship and when factors outside the written agreement between the parties can be considered.

In this case, Dr Kettle answered an advertisement placed by the Ministry of Defence for a “Part-time Civilian Orthodontic Specialist Practitioner” and was offered the position, following an interview. She then received correspondence from the Defence Procurement Agency containing an “invitation to tender” and a form of contract. Further to this, Dr Kettle received another form of contract, which was expressed to be for the provision of orthodontic services. Before signing, Dr Kettle contacted the MOD to comment that the form of contract was not appropriate to her situation, but “more to builders”. The contract referred to Dr Kettle as a “contractor” and contained provision for her to subcontract the work and “maintain an organisation”, none of which was relevant to the actual circumstances. Nevertheless, she was assured that it was a standard contract and she signed.

Dr Kettle then worked for the MOD for almost 4 years, on a contract renewal basis. During this time, she worked the regular hours envisaged by the contract and received salary, uniform, equipment and was sent patients. However, she paid her own tax and national insurance and did not receive pension or sick pay. Her contract was terminated on 10 June 2005 but she was told she could continue to work for the MOD via an employment agency. Her work then terminated completely on 22 June 2005 and she brought an Employment Tribunal claim. The Tribunal found that Dr Kettle was an employee of the MOD and it was this decision that was appealed to the EAT.

With due consideration to these points and previous decisions, the key issue for the EAT in this case was whether the Tribunal could look beyond what is said to be the written contract to assess whether one of the parties was an employee. In reaching its decision, the EAT has given helpful guidance on the questions a Tribunal must answer before determining such an issue. These were expressed by His Honour Judge Richardson, as follows:

“First, a Tribunal faced with a document or documents said to be contractual, must decide whether the parties intended the document or documents to be the exclusive record of the terms of their agreement.

Secondly, this question is a question of fact for the Tribunal.

Thirdly, if it was the parties’ intention that the document or documents should be the exclusive record of the terms of their agreement, the Tribunal is generally restricted to consideration of the documents. The meaning of the documents is a question of law, and therefore the question whether the claimant is employed under a contract of service is a question of law.

Fourthly, if it was not the parties’ intention that the document or documents should be the exclusive record of the terms of their agreement, the Tribunal will look at other relevant materials to determine the terms of the contract. These may include oral exchanges and conduct”.