Breakell v West Midland Reserve Forces' & Cadets' Association Named As Shropshire Army Cadet Force UKEAT/0372/10/RN
Appeal against a ruling that the claimant was not a worker but a volunteer and so could not bring a claim of disability discrimination. Appeal dismissed.
The claimant was an Adult Instructor within the Army Cadet Force. His job within this youth organisation was to train cadets in accordance with a training programme, and remuneration could be given in the form of Paid Training Days (PTD’s). AI’s were not normally paid for more than 28 PTD’s in any year, there was no obligation on the part of the ACF to provide any number of training days in a year for which the AI would be remunerated and in fact one year, due to financial constraints, payment was stopped for all training days. There was no obligation on the AI’s to turn up, but there was a provision in the Terms of Service that said they could be given notice if the AI did not turn up for 56 days. The claimant made a claim for disability discrimination which was dismissed: the claimant was a volunteer and not a worker as defined in s68(1) of the DDA and accordingly the Tribunal did not have jurisdiction to hear his claim. The claimant appealed and lost.
The EAT concluded that the Employment Judge was correct to rule that there was no obligation on the respondent to provide work, there was no obligation on the claimant to accept work, the claimant was paid only for the days he worked and therefore he could not be worker as defined in s68(1). Also, since s212 of the ERA had not been raised at the Employment Tribunal, it therefore was not an issue at the EAT.
Appeal No. UKEAT/0372/10/RN
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 3 December 2010
Judgment handed down on 11 April 2011
HIS HONOUR JUDGE BIRTLES
MR M BREAKELL (APPELLANT)
WEST MIDLANDS RESERVE FORCES' AND CADETS' ASSOCIATION
NAMED AS SHROPSHIRE ARMY CADET FORCE (RESPONDENT)
Transcript of Proceedings
For the Appellant
MR KEIR HIRST (Solicitor)
Messrs Wace Morgan Solicitors
For the Respondent
MR CHRISTOPHER CAMP (of Counsel)
Treasury Solicitor's Department
One Kemble Street
JURISDICTIONAL POINTS – Worker, employee or neither
Appeal by an Army Cadet Force Adult Instructor from the judgment of an Employment Judge sitting alone that he was a volunteer and not in "employment" as defined by s68(1) Disability Discrimination Act 1995 as amended. Appeal dismissed. The Employment Judge was correct as his factual findings were (a) there was no obligation on the Respondent to provide work (b) there was no obligation on the Claimant to accept work offered (c) he was paid only for the days he worked (d) s212 Employment Rights Act 1996 was not argued.**HIS HONOUR JUDGE BIRTLES****Introduction**
- This is an appeal from Employment Judge Ashton sitting at a pre-hearing review in Shrewsbury on 7 April 2010. The Employment Judge decided that the Claimant was a volunteer and not in employment with the Respondent as the word "employment" is defined in section 68(1) of the Disability Discrimination Act 1995 as amended. **It followed that the Tribunal did not have jurisdiction to hear his claim of disability discrimination which was dismissed. The Claimant appeals against that judgment which was sent to the parties on 7 May 2010.
- The Claimant is represented by Mr Keir Hirst who is a solicitor. The Respondent is represented by Mr Christopher Camp of counsel. I am grateful to both for their written and oral submissions.
- These are relatively short and set out in paragraphs 3-20 of the Employment Judge's judgment:
3. The facts in this case are relevantly straightforward. In April 2008 the claimant, who had previously been a member of the ACF, applied to become an Adult Instructor ('AI') within that organisation. The claimant's application was successful and on 31 July 2008 he was appointed as a Probationary Adult Instructor pursuant to the Army Cadet Force Adult Instructor's Terms of Service, a copy of which is at page 81 in the bundle.
4. In particular it is stated at paragraph 3 that:
'As a member of this youth organisation it will be your duty, subject to the instructions of your superior officer, to train cadets in accordance with a training programme authorised by the ACF County/Battalion Sector and in accordance with the relevant regulations and instructions [...] to carry out administrative or other duties as detailed.'
5. Paragraph 4 provides that remuneration 'may' be given in the form of Paid Training Days ("PTDs"), paragraph 4b providing that:
'You will not normally be paid for more than 28 PTDs in any period commencing 1 April in one year and ending 31 March the following, unless expressly authorised by your ACF Cadet Commandant'.
6. Paragraph 5 provides that the AI is not entitled to any sick or holiday pay and paragraph 6 provides that s/he is not included in any pension scheme.
7. Paragraph 7 then provides that:
'The Secretary of State may terminate this agreement without notice if you have been absent without the permission of your ACF Cadet Commandant from your ACF duties for 56 consecutive days.'
8. Paragraph 9 provides for any grievance to be taken up with the ACF Cadet Commandant.
9. Paragraph 10 provides that:
'It is your duty to comply with any instructions given to you by a superior Officer'.
10. The claimant's appointment was made pursuant to his application to join the Shropshire ACF as a Volunteer Adult Instructor, a copy of which appears at page 73.1 in the bundle, and which at paragraph 10 provides that the AI's:
'task is to train cadets in the subjects of the Army Proficiency Certificate (ACF) and other subjects in which he is competent. He is to serve as an example to the cadets and to present a positive image of the ACF to the public at large.'
11. Paragraph 10(a) under the heading 'Responsibilities for Training' states that the AI:
'is to attend training in the detachment on all occasions when cadets are present or whenever visitors or County Staff attend, within the limits of available time. He is to inform the Detachment Commander when unable to attend'.
12. In evidence Major Wright drew my attention to paragraph 5.002 of the ACF manual (page 51 in the bundle) which provides that:
'AI are voluntary youth workers appointed for service within the youth organisation that is the Army Cadet Force.'
13. In relation to the AI Terms of Service Major Wright said that payment for training days was intended as compensation for loss of any other earnings on those days. However, Major Wright confirmed that while 28 days was the maximum number of days for which an AI would normally be paid in any year, there was no obligation on the part of the ACF to provide that number or indeed any number of training days for which the AI would be remunerated. The AI may though be asked to attend more than 28 training days in a year for which s/he would not be remunerated for those in excess of 28 unless expressly authorised. As an example, Major Wright said that in October 2009, due to financial constraints, the Ministry of Defence had unilaterally stopped payment for all training days.
14. No suggestion was made that in these or in any other circumstances in which the ACF failed to provide an AI with 28 training days for which s/he was remunerated, the AI would have a claim against the ACF for any consequent loss of income. Major Wright though accepted that if an AI had worked on a training day for which s/he had rightly expected to be but was not remunerated, that could form the basis of a claim for recovery of the amount not paid.
15. ACF volunteers are not subject to the National Minimum Wage and the payments they receive are not related to the number of hours worked.
16. In relation to the notice provision in the AI's Terms of Service, Major Wright said that this was of little practical value as there was 'no obligation on the AI to turn up', and the notice period was simply intended to allow the AI to return his uniform and other property. He though to some extent contradicted himself by saying that he thought that if an AI did not attend for 56 days s/he could 'theoretically' be sued to recover any losses incurred.
17. Major Wright said that each ACF detachment arranges its training programme for every year commencing 1 April in accordance with instructions given by the military chain of command. If there is an insufficient number of training dates for each AI to be provided with 28 PTDs, the Als are not entitled to be compensated in respect of the shortfall, ie there is no obligation to provide each AI with 28 PTDs in each year. That is what had happened last year when payment for training days had been stopped. Equally an AI may attend more than 28 PTDs for which s/he will only be remunerated if specifically authorised by the Cadet Commandant.
18. In practice the Als are given the training programme and indicate those dates which they are able to attend. In accordance with these arrangements, the claimant had attended for a number of training days for which he had been remunerated.
19. If the AI did not attend any for a total of 56 consecutive days the appointment would be likely to be terminated. Equally, if having indicated they were able to attend a training day they did not do so, the notice provisions may become operative. On those days when the AI did attend s/he would be expected to comply with her/his duties, to obey the instructions of her/his superior officer and to supervise the cadets. If they do not do so or if they are guilty of inappropriate behaviour, they may be disciplined or dismissed.
20. Reference was also made to the probationary AI weekday training which the claimant was expected to attend, a copy which appears at page 81.1 of the bundle. This document makes clear that the training was mandatory and that whilst the AI would not be remunerated for their attendance, they would be paid their travelling expenses. Major Wright said the course was mandatory in the sense that it was required training which, if the probationary AI did not complete, s/he would not become a qualified AI."**The Employment Judge's Judgment**
- Having set out the material facts the Employment Judge summarised the submissions made by the parties in paragraphs 21-30 of his judgment. I will revert to much of the law later in this judgment.
- These are set out in paragraphs 31-34 of the judgment:
31. Applying the law to the facts I find that the respondent was not under any obligation to provide any work for the claimant to do as is in particular evidenced by the limitation imposed last year by the Ministry of Defence on the number of paid training days. Equally the claimant was under not under any obligation to do any of the work provided. In practice what happened is that the respondent provided a list of training days and the claimant chose those which he wished or was able to attend "within the limits of (his) available time". There was no obligation on him to attend any training days. If he did so he would generally, but subject to the maximum 28 days and any "cuts" unilaterally imposed by the MoD, as happened in 2009, expect to be remunerated and, on those occasions, be subject to the instructions of his superior officer, but those obligations are what are described in Grayson as being an 'if' contract.
32. It is my view that the arrangements between the parties did not comprise any mutuality of obligation such that the respondent was obliged to provide work for the claimant to do and for the claimant to undertake the work provided.
33. The suggestion that an AI who had attended a training day for which he rightly expected to be but was not remunerated could sue to recover the amount due does not alter my view. It is in the nature of 'if' contracts that, when work is provided and performed, obligations do arise. In relation to the question of whether, if the AI was to fail to attend for 56 consecutive days, he could be sued to recover any losses incurred, I respectfully disagree with the view taken by Major Wright that the respondent would be able to do so. In practice if the claimant does not attend, as he was not under any obligation to do so the respondent would have no remedy other than, in accordance with the AI's Terms of Service, to terminate his appointment without notice.
34. For these reasons I find that the claimant was a volunteer and not a worker as defined in section 68(1) of the Disability Discrimination Act 1995. Accordingly the tribunal does not have jurisdiction to hear his claim which is dismissed."**The Notice of Appeal**
- The Notice of Appeal is at EAT bundle pages 8-14. There is a Respondent's Answer at EAT bundle pages 15-20. Finally, there is a parties' Joint Statement about the Respondent's Answer Section C, Grounds 2 (a) to (c) at EAT bundle pages 21-24.
- Section 68(1) of the Disability Discrimination Act 1995 as amended says this:
"'employment' means, subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly;"
- See also paragraph 3.8 of the DRC Code of Practice: Employment and Occupation (2004).
- Before turning to the Notice of Appeal it may be helpful if I discuss some of the main authorities. South East Sheffield Citizens Advice Bureau v Grayson  ICR 1138 (judgment 17 November 2003) concerned the meaning of a contract of service or a contract personally to do any work for the purposes of section 68 of the Disability Discrimination Act 1995 as amended. That case concerned 11 paid workers (including the Claimant) and 7 unpaid workers who were engaged under unsigned "volunteer agreements" which provided for a weekly commitment of six hours, reimbursement of expenses, confidentiality terms relating to client matters, in-service training and the use of a grievance and disciplinary procedure. The headnote reads as follows:
"...in order to establish that a volunteer worker was in fact an employee, under a contract of service or a contract personally to do work within the meaning of section 68(1) of the Disability Discrimination Act 1995, it was necessary to identify an arrangement under which, in exchange for valuable consideration, the volunteer was contractually obliged to render services to or work personally for the employer; that, in the present case, relevant factors were that the volunteer agreement was not required to be signed by the Bureau or the volunteer, that it was directed at identifying what the Bureau reasonably expected of the volunteer and what the volunteer could reasonably expect of the Bureau rather than in terms of unqualified obligations, that the hours to be worked were expressed as a 'usual minimum commitment' with no sanction for failing to honour that commitment, that a volunteer was not paid for his services, being reimbursed only for expenses actually incurred, and that he could take as much holiday as he liked; but that the crucial question was whether there was a contractual obligation on the Bureau to provide work and for the volunteer to do the work such that, were the volunteer to terminate the relationship immediately, the Bureau would have a remedy for breach of contract against him, and, on the facts, the volunteer agreement imposed no such obligation; and that, accordingly, the volunteers were not employed within the meaning of section 68(1) and, by virtue of section 7, the Tribunal had no jurisdiction to hear the applicants' complaint."
- The relevant passages in the judgment of Rimer J (as he then was) are at paragraphs 12-13; 16-18; 21.
- In Mingeley v Pennock and anor (trading as Amber Cars)  ICR 727 the issue was whether the Claimant was in the employment of the Respondents for the purposes of section 71(1) of the Race Relations Act 1976. The Employment Tribunal, the EAT and the Court of Appeal all held that he was not obliged "personally to execute any work or labour" within the statutory definition. In that case the Claimant was a taxi driver who owned his own vehicle and paid the respondents, the operators of a taxi service, £75 per week for a radio and access to their computer system, which allocated calls from customers to a fleet of drivers. Though under his contract with the Respondents the Claimant could not work for any other operator and was required to wear the Respondents' uniform and adhere to the Respondents' scale of charges, he was not obliged to work any particular hours or at all, and he kept all the fare money. The Court of Appeal held that in the absence of any obligation to work that meant that his contract with the Respondents could not be a contract "personally to execute any work or labour". See in particular the judgment of Maurice Kay LJ at paragraph 14. The earlier case of Grayson was not cited in Mingeley.
- In Cornwall County Council v Prater  ICR 731 a differently constituted Court of Appeal had to consider the position of a Claimant who was engaged by the Respondent between 1988 and 1998 as a home tutor to teach children individually who were unable to attend school. The number of hours of tuition for each engagement varied, and the duration varied from a few months to several years. Although not obliged to accept a particular engagement, the Claimant had to fulfil her commitment to the particular pupil once taken on and she never refused any engagement offered by the Council. She was paid in arrears and because of school holidays in August she generally received no payment in September. She received no holiday pay, sick pay or pay for time spent travelling to and from pupils' homes. At the end of each financial year the claimant received a P60 form. The Employment Tribunal found there was a mutuality of obligation between the Council and the Claimant sufficient to create a contract of service, and that any periods between the engagements when the Claimant was not teaching a pupil for the Council were abridged by the provisions of section 212(3) of the Employment Rights Act 1996.
- The EAT and the Court of Appeal dismissed the Council's appeal. The Court of Appeal held that once each individual contract was entered into and continued, the Claimant was obliged to teach the particular pupil made available to her and the Council was obliged to pay her for teaching that pupil; that was sufficient mutuality of obligation, relating to the work provided and performed under the contract, to establish that each teaching engagement was a contract of service.
- The main judgment was given by Mummery LJ and there is a discussion of the case law cited to the Court of Appeal at paragraphs 32-38. The cases were O'Kelly v Trusthouse Forte plc  ICR 728; Clark v Oxfordshire Health Authority  IRLR 125; Carmichael v National Power plc  ICR 1226 and Stevedoring Haulage Service Ltd v Fuller  IRLR 627. At paragraphs 32-33 and 38, Mummery LJ said this:
"32. It will be necessary to examine the authorities cited by Mr Heppinstall in order to see whether, as he contends, they establish his proposition that mutuality of obligation within each separate contract is insufficient to create a contract of service if, after the end of the contract, there is no continuing or further obligation on the Council to offer more work or on Mrs Prater to accept more work.
33. In my judgment, the authorities do not support the Council's argument for a degree of mutuality of obligation over and above the mutual obligations existing within each separate contract, namely the obligation on Mrs Prater to teach the pupil and the obligation on the part of the Council to pay her for teaching the pupil, whom they continue to make available for teaching by her.
38. In brief, the authorities cited by Mr Heppinstall are distinguishable as they did not deal with the case of a succession of individual contracts for work within each of which there was mutuality of obligation relating to the work provided and performed under that contract."
- At paragraph 51 Lewison J said this:
"51. The question whether there is mutuality of obligation is not the complete test for determining whether a contract of service exists. I would have thought that the question of mutuality of obligation goes to the question whether there was a contract at all, rather than what kind of contract there was, if a contract existed. However the alleged lack of mutuality of obligation is the only ground of appeal.
52. The [Council's] argument presupposes that it was necessary to find mutuality of obligation over the whole period from the beginning of the first engagement to the conclusion of the last. In a case where section 212 does not apply, that may well be right. But in a case where gaps between individual engagements can be bridged by section 212, that necessity does not arise."
- Neither Grayson or Mingeley were cited in Prater.
- Finally, there is James v Redcats (Brands) Ltd  ICR 1006 a decision of Elias J (as he then was) sitting in the EAT. That was a case under section 54(3) of the National Minimum Wage Act 1998. That provides as follows:
"In this Act 'worker' (except in the phrases 'agency worker' and 'home worker') means an individual who has entered into or works under (or, where the employment has ceased, worked under) –
(a) a contract of employment; or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
and any reference to a worker's contract shall be construed accordingly."
- In that case the Claimant worked as a courier for the Respondent company delivering parcels to private addresses. The Employment Tribunal found that she provided her own vehicle; she had the right to find an alternative courier if she was "unable to work" through illness or childcare duties; she could deliver parcels for other businesses, though in practice she did not do so; she was not entitled to paid holidays or sick pay; she was responsible for her own tax and national insurance. The Employment Tribunal concluded that there was no mutuality of obligation because the Respondent gave no guarantee of volume of work and the Claimant could decline work. She was not therefore a worker as defined by section 54(3). Elias J allowed an appeal and held that, properly analysed, the contract between the Claimant and the Respondent did provide mutuality of obligation, but the lack of mutuality of obligation where no work was being performed was of little, if any, significance, since when the Claimant was working she was doing so pursuant to a contract and was providing a service for which she was entitled to be paid and the only issue was whether she was entitled to receive the minimum wage for the work she did, which depended on whether the nature of the contract made her a "worker" or a "home worker" within the statutory definitions; that lack of mutuality of obligation when no work was being performed was at most merely one of the characteristics of the relationship which might be taken into account when considering the contract and would not preclude the finding that the Claimant was a worker when actually at work. The relevant paragraphs in the judgment of Elias J are at 75-78; 80-82 and 86.
- In that case, Grayson and Prater were not cited. However, Mingeley was cited but distinguished as having no relevance to the case because in Mingeley the Claimant had no obligation personally to do anything and if there were personal obligations, they were not the dominant purpose of the contract. In this case, whenever the Claimant was actually working she was doing so pursuant to a contract and providing a service for which she was entitled to be paid. If she were not paid for work done, she would obviously have a claim in contract: judgment paragraphs 79-86. In the words of Elias J at paragraph 86: "...I do not accept that Mingeley has anything to say about the status of the individual once work is actually being performed."
- Before the Employment Tribunal and before me, Mr Hirst relied upon the judgment of Burton J in X v Mid Sussex Citizens Advice Bureau and anor  ICR 423 and particularly paragraph 17 of that judgment. I do not find X to be of any assistance in this case as it was concerned with whether the definition of "employment" in section 68(1) of the Disability Discrimination Act 1995 was affected by the reference to "occupation" in Article 3(1)(a) of Council Directive 2000/78/EC. Burton J held that the definition in section 68(1) was a careful definition which was not affected by Article 3(1)(a) of that Directive.
- Before I handed down judgment in this case I was contacted via the EAT by Mr Hirst who drew my attention to the fact that the Court of Appeal had now given judgment in the case of [X v Mid-Sussex Citizens Advice Bureau and anor]()  EWCA Civ 28. He requested permission to make further submissions based on the judgment of the Court of Appeal. I granted permission to both parties to make further written submissions and deferred handing down my draft judgment.
- I have carefully read the decision of the Court of Appeal in X which for the reasons given by Elias LJ the Court of Appeal dismissed the appeal from the decision of Burton J. I have also read the written submissions by both Mr Hirst and Mr Camp. I agree with Mr Camp's submission that the decision of the Court of Appeal in X is not relevant to the present appeal, save that the Court of Appeal said nothing to alter the law as it previously stood. It supports none of the grounds of appeal and it supports no argument in the Claimant's favour, whether contained in the Notice of Appeal or otherwise.
- This case has been complicated by the Respondent's contention that there are matters contained within the Claimant's Notice of Appeal that were not argued before the Employment Tribunal. The parties have partly resolved this issue by a Joint Statement which is at EAT bundle pages 21-24. However, Mr Camp also submits that Mr Hirst's skeleton argument raises three potentially important matters that were not in his Notice of Appeal. They were:
(i) A "European" definition of "worker" (Claimant's skeleton argument paragraph 3.2);
(ii) The suggestion that the Employment Judge erred in law in finding that the Respondent was under no obligation to provide work (Claimant's skeleton argument paragraph 5.6). Mr Camp also submits that the specific argument that the Respondent was under an obligation to provide a "reasonable level of work" and/or that the Respondent was obliged to offer training days to the Claimant, if available, was not raised below either;
(iii) The suggestion that the Claimant's claim should be permitted to continue even if he was not employed when allegedly discriminated against, because of the close connection between his employment and the alleged discrimination (Claimant's skeleton argument paragraph 5.8).
- I have carefully read all of the documents in this case and I agree with Mr Camp that the second and third matters were not argued before the Employment Judge. They cannot therefore be argued before me. The European definition of worker was argued below: judgment paragraphs 23-24. I deal with that at paragraphs 20-22 above.
- In summary form the Ground of Appeal is that to be an employee requires only an obligation on the employee to do work, not any obligation on the employer to provide work: Grounds of Appeal 1, 2 and 5.
- A person is not an employee under section 68(1) unless under a contractual obligation personally to do work: Mingeley v Pennock and anor (trading as Amber Cars)  ICR 727 at paragraph 14.
- I do not consider that this is an appropriate case for me to decide whether it is a necessary requirement of a contractual obligation personally to do any work that there has to be mutual obligation between the parties to offer and accept work. Mr Camp urges upon me the authority of Mingeley at paragraphs 8, 9 and 14. Paragraphs 8 and 9 do no more than summarise the arguments of Mr Thacker of counsel for the Claimant. Paragraph 14 does not refer to the question of mutuality at all. At paragraph 14 Maurice Kay LJ says this:
"In my judgment, on the plain words of section 78 of the 1976 Act and the authorities to which I have referred, the Employment Tribunal was correct to conclude that, in order to bring himself within section 78, Mr Mingeley had to establish that his contract with Amber Cars placed him under an obligation "personally to execute any work or labour". As the Tribunal found, there was no evidence that he was ever under such an obligation. He was free to work or not to work at his own whim or fancy. His obligation was to pay Amber Cars £75 per week and, if he chose to work, then to do so within the requirements of the arrangement. However, the absence from the contract of an obligation to work places him beyond the reach of section 78."
- Neither Maurice Kay LJ nor the other two judges in the Court of Appeal had anything specifically to say themselves about mutuality of obligation (my emphasis).
- I have carefully considered South East Sheffield Citizens Advice Bureau v Grayson  ICR 1138 at paragraphs 12, 13 and 21; Younis v Trans Global Projects Ltd and Charmock UKEAT/0504/05, 2 December 2005 (judgment paragraph 17) and X v Mid Sussex Citizens Advice Bureau and anor  ICR 423, 429 and 431-2, paragraphs 12 and 18(3). In my judgment they do not spell out an absolute requirement for mutuality of obligation.
- Mr Hirst relies on Muschett v HM Prison Service  IRLR 451 at paragraph 3.6 per Rimer LJ. None of the cases I have just cited were cited in Muschett but in my judgment there is no conflict between them, even if what was said in Muschett was not obiter.
- My conclusion is that mutuality of obligation is not a condition of a contract for services, i.e. "a contract personally to do any work" as referred to in section 68(1). The Employment Judge found on the facts that:
"...the Claimant was not under any obligation to do any of the work provided. In practice what happened is that the respondent provided a list of training days and the Claimant chose those which he wished or was able to attend "within the limits of (his) available time". There was no obligation on him to attend any training days."
If I am wrong about that and there is indeed a requirement under a contract for services for mutuality of obligation as argued for by Mr Camp then again the Claimant must fail, because not only did the Employment Judge find that the Claimant was not under any obligation to do any of the work provided but also that the Respondent was not under any obligation to provide any work for the Claimant to do: judgment paragraph 31. Put simply, the Claimant fails on the facts as found by the Employment Judge that there was no mutuality of obligation in this case. He heard the Claimant on his own behalf and a Major (retired) JS Wright who was employed by the Respondent as Head of Administration. He had a bundle of relevant documents: judgment paragraph 2.Ground 2: There was no obligation on C to work
- This is contained in Ground 2 paragraphs 7-10 (almost all subsequently withdrawn by Mr Hirst in oral argument) and Ground 3. Ground 3 really contains the core of this ground of appeal and Mr Hirst seeks to rely on a series of documents and/or submissions which are set out in paragraph 13(a)-(k) of his Grounds of Appeal.
- In the course of oral argument I went through each of these matters in turn with Mr Hirst. The results were as follows:
13(a): EAT bundle page 107. This was referred to at the hearing.
13(b): This was not referred to at the hearing.
13(c): This is a submission.
13(d): This is a submission.
13(e): This was referred to at the hearing but is not in the EAT bundle.
13(f): This was not referred to at the hearing.
13(g): This was not referred to at the hearing.
13(h): This is a submission.
13(i): This was not referred to at the hearing.
13(j): This was not referred to at the hearing and is not in the EAT bundle.
13(k): This is not relevant: see the Joint Statement at EAT bundle pages 23-24.
- There is a further submission at paragraph 14 of Mr Hirst's skeleton argument which is that the Tribunal did not consider paragraph 5.013 of the Service Agreement that "An AI is entitled to be remunerated as specified in Chapter 8" and also that by virtue of paragraph 5.029 ('Death and Disablement Awards') the Claimant was eligible to receive awards based on the Principal Civil Service Pensions Scheme (PCSPS).
- There is nothing in the bundle before me or in the submissions which I heard which suggests that Employment Judge Ashton did not have all of the matters in mind which Mr Hirst has referred to. Some of the documentation on which he now relies was not referred to at the hearing. He read the material before him, heard the witnesses and listened to legal submissions. He was entitled to reach the judgment he did on the material before him. For the sake of completeness insofar as there is an implied submission by Mr Hirst that this was a perverse decision I reject it.
- Mr Hirst argues that the Employment Judge failed to engage with his argument to the effect that whatever the position when the Claimant was not "at work" but that he was an employee when he was at work: Ground of Appeal 4. This is an argument based upon James v Redcats (Brands) Ltd  ICR 1006 and Cornwall County Council v Prater  ICR 731. In short, Mr Hirst submits that in this case the Claimant was obliged to carry out his duties in accordance with his Terms of Service and whilst doing so the Respondent was under an obligation to pay him for the work he carried out. The fact that there was no obligation to provide the Claimant with work during periods between engagements should not detract from the Claimant's employment status.
- I have already indicated that the Employment Judge found that there was no mutuality of obligation on either side in this case: judgment paragraph 31; see also paragraphs 32-33. To the extent this ground of appeal is founded upon mutuality of obligation it seems to me it founders on the factual findings of the Employment Judge.
- Further this is not a case where the Claimant can take advantage of section 212 of the Employment Rights Act 1996. It was not raised by the Claimant before the Employment Judge and it is not therefore in issue in this case.
- Mr Hirst sought to rely upon Relaxion Group plc v Rhys-Harper & Ors  ICR 867. The argument was that if the Claimant was employed only when on engagement, then there was a sufficiently close connection between the discrimination alleged and his engagements to enable him to claim on the basis of that authority. I reject that submission for the following reasons. First, it was not raised before the Employment Tribunal and is not in the grounds of appeal. Second, Relaxion Group plc concerns discrimination against former employees in relation to acts closely connected to that former employment. It does not apply so as to enable someone only employed when on engagements to bring a claim in respect of something that occurred between engagements where section 212 does not apply to provide continuous employment. Third, there is no such connection in the present case. The Claimant was not discharged because of anything he did whilst working.
- For these reasons the appeal is dismissed.
Published: 15/04/2011 16:23