Prater v Cornwall County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Longmore,Mr Justice Lewison |
| Judgment Date | 24 February 2006 |
| Neutral Citation | [2006] EWCA Civ 102 |
| Docket Number | Case No: A2/2005/1312 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 February 2006 |
[2006] EWCA Civ 102
Lord Justice Mummery
Lord Justice Longmore and
Mr Justice Lewison
Case No: A2/2005/1312
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE D SEROTA QC
Royal Courts of Justice
Strand, London, WC2A 2LL
MR ADAM HEPPINSTALL (instructed by Cornwall County Council, TR1 3AY) for the Appellant
MR ROHAN PIRANI (instructed by Graham Clayton, EX1 2PR) for the Respondent
Introduction
An employment law point of general interest arises in this test case brought with the backing of the National Union of Teachers. The claim was for a "declaration of written particulars of employment." The purpose of the proceedings is more ambitious than the modest nature of the claim suggests: it is to establish that a teacher engaged by a local authority was entitled to be regarded as an employee throughout the 10 year period in which she was paid for her work in performing multiple individual teaching assignments of varying duration under a succession of separate contracts.
Complex patterns of contracts for work are by no means confined to the staffing practices of local education authorities. They are common in many public sector and private sector workplaces, which are increasingly populated by intermittent and occasional staff working alongside full time employees.
The true legal character of the contracts and of the legal relationship created by them is a matter of serious concern to the parties, as the scope of statutory employment protection depends on whether a person performs work under a contract of service or under some other kind of arrangement. An "employee" is defined in the Employment Rights Act 1996 (the 1996 Act) as an individual who has entered into or works under a contract of service: section 230(1) and (2) . The focus in this dispute has been on the "irreducible minimum mutual obligation necessary to create a contract of service", which the Council contends was missing from the contracts and the relationship between the parties in this case before 1 September 1998: see Carmichael v. National Power [2000] IRLR 43 at paragraph 18.
It is common ground that there was no single contract of service of a global, umbrella or overarching character spreading over the entire period 1988 to 1998. Mrs Prater's case relies specifically on the succession of numerous individual work teaching contracts during the period and on the application of the provisions of the 1996 Act relating to continuity of employment to bridge the gaps between the individual teaching contracts.
The appeal
The appeal is from the order of the Employment Appeal Tribunal dated 8 June 2005 (HHJ Serota QC presiding) . The appellant Cornwall County Council (the Council, for whom Mr Adam Heppinstall appeared) lost its appeal from the employment tribunal. As explained in its extended reasons sent to the parties on 2 December 2004, the employment tribunal had unanimously held that the respondent, Mrs Margaret Prater (for whom Mr Rohan Pirani appeared) was, as a result of the combined effect of the succession of individual contracts and the continuity provisions of section 212 of the 1996 Act, an employee of the Council between 1 April 1988 and 1 September 1998.
Hooper LJ granted permission to appeal on 21 July 2005.
The facts
Mrs Margaret Prater, who is 65, is a teacher in the Council's Education Out of Schools Service (formerly the Home Tutor Service) . Her main subject is biology, but she teaches many other subjects. She was engaged by the Council as a home tutor to teach children, who were unable for a variety of reasons to attend school (e.g. injury, illness, pregnancy, exclusion for behavioural problems and so on) . The Council uses other home tutors. It tries to match the tutor to the needs of a particular pupil.
Work was offered by the Council to Mrs Prater by way of a particular pupil, who would be taught by her at the pupil's home. The Council was not under any contractual obligation to offer pupils to her. Mrs Prater was under no contractual obligation to accept the pupils that the Council asked her to take on. In fact she never refused any offers of work during the whole of the relevant period from 1988 to 1998 and she worked under engagements with the Council throughout almost the whole of the 10 year period.
Having agreed to take on a pupil, Mrs Prater regarded herself as having undertaken a commitment to the pupil to deliver teaching on a regular basis. The teaching would continue for as long as was necessary, subject to regular reviews.
She taught a number of different pupils a week, some for 5 hours a week, others for as much as 10 hours a week. The duration of the individual engagements varied from a few months to several years, one lasting for as long as 5 years. After an initial assessment, the tuition to be delivered had to be timetabled according to a number of factors, including the attendance of a parent or guardian, the needs of the child, the nature of the curriculum, the tutor's own commitments and so on.
Although Mrs Prater was not obliged to accept pupils offered by the Council, once she had agreed to take on the work she was obliged to fulfil her commitment to that particular pupil and the Council was obliged to continue to provide that work until the particular engagement ceased.
Although the engagements were not documented, Mrs Prater was given a document in about 1992 headed "Information for Home Tutors," in which it was stated (Section 4) that she was "employed by the Education Authority." As shown by a schedule of payments going back to 1988, the Council paid Mrs Prater in arrears. Because schools were closed for holidays in August Mrs Prater generally received no payment in September. Tax and National Insurance were deducted at source and at the end of each financial year Mrs Prater received a P60 form. She did not receive holiday pay, sick pay or pay for time travelling to and from pupils' homes.
Sometimes there were periods when Mrs Prater was not teaching a pupil for the Council. The Council has not, however, appealed against the finding of fact by the employment tribunal that Mrs Prater's absence from work during those periods was "on account of a temporary cessation of work" within section 212(3) (b) of the 1996 Act. This meant that, if her individual engagements were contracts of service (which is denied by the Council) , she was statutorily entitled to bridge the gaps in service for continuity purposes.
In 1998 Mrs Prater successfully applied for the post of 0.3 full time equivalent (FTE) home tutor as a part time teacher of science within the Education Out of School Service. From 1 September 1998 she continued to perform the same teaching duties as before, plus a certain amount of administrative work. Under that contract she was entitled to holiday pay, sick pay, pay for preparation and for travelling time to and from pupils' homes. The Council accepted that, as from 1 September 1998, Mrs Prater was an employee in respect of all the work undertaken by her for the Council. The dispute about her claim to be a Council employee is only concerned with the decade 1988 to 1998.
Issues in the proceedings
In her originating application presented on 11 May 2004 Mrs Prater sought written particulars of her employment. She made the claim on the basis that she should be treated as having been continuously employed by the Council since 1988.
The Council's response was that she was not an employee of the Council during the period 1988 to 1998. When asked by this court what she was, if she was not an employee, Mr Heppinstall for the Council replied "casual worker." She had a series of short, fixed term, discrete, individual teaching engagements. None of them, he submitted, were contracts of service, as they were lacking in the requisite "irreducible minimum" of continuing mutual obligations. There were no continuing duties on either side: Mrs Prater had no obligation to accept work offered by the Council; the Council was under no obligation to offer work to Mrs Prater. The position was that she performed teaching work for the Council as and when she pleased. Before and after each engagement she was free to choose whether or not to accept another engagement with the Council.
Section 212 of the 1996 Act is relevant to continuity, notwithstanding the gaps between engagements. I should explain its effect, even though it is not controversial on this appeal. It is agreed that it can only apply if Mrs Prater's contracts with the Council were contracts of service.
Section 212(1) sets out the weeks which may be counted towards the total period of employment. A week counts if, in the whole or part of it, the employee's relations with the employer are governed by a contract of employment.
Section 212(3) (b) deals with "temporary cessation of work" An employee may count towards his total period of continuous employment a week during which, or during part of which, "he was absent from work on account of a temporary cessation of work." It applies only where there is a period during which there is no contract of employment followed by the worker again becoming an employee of the Council under a contract of service
Section 212(4) provides that not more than 26 weeks count under section 212(3) (b) between any periods falling under subsection (1) .
Employment tribunal decision
The tribunal found that Mrs Prater was an employee of the Council from 1 April 1988. It concluded as follows-
"1...
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