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16th July 2009

SHIFTING STATUS

Little v BMI Chiltern Hospital

In order to bring a complaint of unfair dismissal before a tribunal, claimants have to show that they have employee status. In other words, have a contract of employment. In Little v BMI Chiltern Hospital, the Employment Appeal Tribunal (EAT) decided that a “bank” porter (who worked on an as and when basis) did not have a contract because the employer could (and did) withdraw work from the worker.

Basic facts

Mr Little started working for the hospital as a porter on the “bank” system in October 1992. On average he worked 20 to 30 hours per week doing the same job as two full-time porters who worked under contracts of employment and who therefore had employee status.

In April 1997 Mr Little, in response to an offer of permanent employment on annualised hours, said that he preferred to be an independent contractor. He also confirmed in writing that he did not have to accept work from the hospital nor did they have to offer any to him – known as mutuality of obligation. He confirmed again in 1999 and 2008 that there was no mutuality of obligation and that each period of work was separate.

He was dismissed in February 2008 and claimed unfair dismissal, for which he needed employee status.

Tribunal decision

The tribunal rejected Mr Little’s claim that he was an employee, holding that, as per the case of Carmichael v National Power, he had a choice whether or not to work.

The fact that he had such a choice was “inconsistent with his claimed status as an employee, and in particular with the existence of a mutuality of obligations between the parties, respectively to undertake and to provide work.”

This was underlined by the fact that the hospital could (and occasionally did) send bank workers home half way through a shift if it turned out they were not needed and were not then paid for the rest of that shift.

Mr Little appealed on the basis that, unlike Carmichael, he was not arguing that he had a global contract of employment. Instead he argued that each period of work amounted to a separate contract during which there was mutuality of obligations as per Stephenson v Delphi Systems Ltd.

EAT decision

Mr Little appealed to the EAT who accepted that there was a contract during each period of work but that this was a contract for freelance services. Furthermore, the written evidence clearly indicated that there would be no mutuality of obligation even on the basis of a succession of individual contracts.

They differentiated Mr Little’s case from previous authorities in which workers had to be paid for a session once they started it. This was because, bank workers could be, and in fact were, sent home halfway through a shift losing their entitlement to pay for the rest of that shift.

There was nothing to indicate that what was written did not reflect the true intention of the parties. For this reason the appeal failed.

Comment

This case failed because there was evidence to show that during each period of work the employer could and did withdraw work from the worker. Had this not been the case, Mr Little may have been able to establish that he had been employed on a succession of contracts in which case the only issue would have been whether he had continuity of service.