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Chapter ESM7180

Document Cited authorities 3 Cited in Related
Vincent
Published date07 March 2016
Record NumberESM7180
CourtHM Revenue & Customs
IssuerHM Revenue & Customs
[1997] IRLR 353 Point at issueMr McMeechan was on the books of an employment agency, Noel Employment Ltd, as a temporary catering assistant for about a year. When the agency became insolvent, he sought to recover from the Redundancy Fund, under S.122 of the Employment Protection (Consolidation) Act 1978, the unpaid earnings due to him in respect of his last engagement. This had been with a client, Sutcliffe Catering, and he was claiming the sum of £105. The underlying matter to be decided was whether Mr McMeechan had been an employee of the agency during the course of this particular engagement. FactsMr McMeechan had worked for a number of clients of the agency for varying periods during the year to March 1993. He had produced a job sheet to the industrial tribunal which contained the terms and conditions of his service with Noel Employment Ltd for the period with Sutcliffe Catering. DecisionThe Secretary of State for Employment refused Mr McMeechan’s claim on the grounds that he was not an employee. This refusal was upheld by an Industrial Tribunal but this was overturned by the EAT.

Finally, the Court of Appeal decided that, looking at all the terms of the single engagement, it gave rise to a contract of service.

CommentaryThe Court of Appeal concentrated on the criterion of mutual obligation and Waite L.J. stated:

“The principle which it enshrines is that if there be an absence on the one side of any obligation to provide work and an absence on the other side of any obligation to do such work…., then that provides a powerful pointer against the contract….being one of service.”However, he went on to say that temporary or casual workers pose a particular problem of their own in that there are often two engagements to consider. There is

  • the general engagement, under which sporadic tasks are performed, and
  • the specific engagement, which begins and ends with the performance of any one task. The judge stated that “each engagement is capable, according to its context, of giving rise to a contract of employment”.

In considering the single engagement claim by Mr McMeechan, Waite L.J. looked at the conditions in the written agreement and concluded:

“When it comes to considering the terms of an individual self-contained, engagement, the fact that the parties are not to be obliged in future to offer – or to accept – another engagement with the same, or a different, client must be neither here nor there.”He then went on to weigh the other conditions that...

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