Contracts of employment and temporary workers

North Wales Probation Area v Edwards

FACTS

Mrs Edwards was registered as a temporary (‘relief’) hostel worker, and worked most shifts offered to her by the North Wales Probation Service. The question arose as to whether she was an employee of the Probation Service for the purposes of bringing a claim of unfair dismissal under the Disability Discrimination Act 1995. Edwards is a registered blind person, although the circumstances giving rise to her disability discrimination claim are not clear from this case.

The North Wales Probation Service operates a system of sessional employment for temporary hostel workers, who are used to replace permanent staff during any period of absence. The relief workers are under no obligation to accept shifts when offered, and can arrange for another hostel worker to cover a shift at short notice. The Probation Service also has the right cancel a booked shift if a permanent employee becomes available.

DECISION

At a pre-hearing review, the tribunal held that, during the periods when Edwards was not actually at work, there was no contract of any kind between the parties as there was no mutuality of obligation. However, during those periods when Edwards was working, she would be classified as an employee.

The tribunal considered that the fact that relief workers were able to swap shifts and that the Probation Service was able withdraw a booking did not affect the nature of the relationship. The crucial consideration was whether Edwards could freely select another person to whom she could delegate her duties, which, as a relief worker, she could not. The most she could do was swap shifts with a colleague.

On appeal, the Employment Appeal Tribunal held that the tribunal had been entitled to find that Edwards was an employee when she worked as a relief hostel worker. It also said that while no binding contract was created when a booking was made with Edwards – the booking was merely an indication, not a guarantee, that work was available – a contract was formed once Edwards came to work. The Probation Service then took on the obligation to provide work and pay for it and Edwards was obliged to do the work required, submitting to the control of the Probation Service. Once working, therefore, she was not free to come and go as she liked.

The fact that Edwards could have arranged a substitute for a session did not mean that, if she worked the session herself, her contract for that session was not a contract to work personally. Once she attended the Probation Service to work a shift, she had a personal obligation. Therefore, when Edwards worked individual sessions, she did so pursuant to a contract of employment. There was, therefore, a succession of individual contracts of employment, each covering a session of work.

IMPLICATIONS

Despite the fact that a worker in these circumstances should be regarded as an employee, the practical implications may be limited as none of the individual contracts would be long enough to confer sufficient continuity of service for an unfair dismissal claim. There was no ‘umbrella contract’ as there was no mutuality of obligation between sessions.

Continuity of employment was not considered as the case was an appeal from a pre-hearing review that was limited to determining the issue of employment status. However, Edwards was held to be an employee for the purposes of the Disability Discrimination Act 1995, enabling her to bring a claim for disability discrimination, for which no continuity of employment is required.

Nicholas Jew, partner, DLA Piper

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