Employment status of ‘bank staff’
Thomson v Fife Council, EAT website 26 September 2005
Thomson worked as a council social care worker on a casual basis, sometimes referred to as ‘bank staff’. Work was offered as and when the council needed a relief worker.
In June 2000, Thomson accepted a temporary part-time contract with the council to cover a period of long-term sickness absence, which lasted 18 months. When this contract expired, Thomson became a member of the ‘bank staff’ again. She almost always accepted all hours offered, although there were times when she did not.
In June 2003, she resigned and complained she had been constructively unfairly dismissed. An issue arose as to whether she was classed as an ’employee’ and entitled to bring a claim for unfair dismissal. The tribunal concluded that she was not an ’employee’ at the relevant time, and it could not hear her complaint.
The EAT dismissed the appeal. It reaffirmed the existing case law position (Carmichael & another v National Power plc) that when considering whether someone is employed, the existence of “mutuality of obligation” between employer and the individual is essential. The council’s arrangement whereby it was not obliged to offer work – and the individual was not obliged to accept the work offered – meant that there was no mutuality of obligation.
Thomson argued that she had received statutory sick pay, and her leaver’s form had referred to her as an ’employee’. But the EAT disagreed, finding that these factors were insufficient to demonstrate the necessary mutuality of obligation.