Stevedoring & Haulage Services Ltd v Fuller and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TUCKEY |
| Judgment Date | 09 May 2001 |
| Neutral Citation | [2001] EWCA Civ 651 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A1/2000/0453 |
| Date | 09 May 2001 |
[2001] EWCA Civ 651
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Robert Walker and
lord Justice Tuckey
Case No: A1/2000/0453
Mr. Anthony Higgins (instructed by Messrs Morlings for the Appellant)
Mr. Thomas Linden (instructed by Messrs Pattinson and Brewer for the Respondent)
This is the judgment of the court.
This is another case raising the question whether casual workers are employees other than when they are actually working. The eight Respondents in this case worked as casual dockers for the Appellants at Tower Wharf in Northfleet, Kent from January 1996. After three years they applied to an employment tribunal to be provided with written statements of the particulars of their employment. Section 1 of the Employment Rights Act 1996 requires such statements to be provided to "employees". Section 230 of the Act defines an employee as "an individual who has entered into, or works under a contract of employment". A contract of employment is defined as "a contract of service, whether express or implied and (if it is express) whether oral or in writing".
The ET found that the Respondents were employees. They were not simply working under a series of individual engagements, but under an "overarching" contract of employment. The EAT dismissed the Appellants' appeal.
The facts found by the ET are as follows. The Respondents had been permanently employed by the Appellants as dockers since 1989. In 1995, so as to reduce their operational costs, the Appellants offered and the Respondents accepted generous voluntary redundancy terms. The Appellants however foresaw the need to employ casual labour and on 2nd January 1996 wrote to each of the Respondents saying :
Following the decision to considerably reduce the number of permanently employed terminal operatives at Tower Wharf you were informed that there would be the requirement for casual employees on days and at times to be specified. We are delighted therefore that at the time you took voluntary redundancy, you informed us of your willingness to be considered for casual employment, but there is a requirement for us to point out the following :
The services you are to provide the company are on an ad hoc and casual basis. This means that while the company will try to give you as much notice as possible when offering work, there is no obligation on the part of the company to provide such work nor for you to accept any work so offered.
You are not an employee of the company and not entitled to any fringe benefits such as sick pay, holiday or pension rights.
You will be paid only for the hours actually worked (and the rates were then set out) with an eight hour minimum payment per working period unless otherwise agreed by you. From your payment there will be deductions of income tax and national insurance contributions under the PAYE scheme, in the same way as if you were an employee, but this is for administrative convenience only
It is important that you understand and accept the conditions under which casual employment is being offered and we therefore require from you your acknowledgement on the copy of this letter before such employment can begin :
which said :
I understand and acknowledge the conditions under which I will be employed by the company on an ad hoc and casual basis, including the deduction of income tax and national insurance contributions.
The Respondents signed and returned copies of this letter as requested together with another document headed "Temporary Terminal Operatives' Terms and Conditions of Engagement", which is in much the same terms as the letter but added :
You are not an employee of the company; your services being utilised only when mutually agreed, with no obligation by either party other than to honour a specific pre-agreed period of engagement.
Identical documents in all important respects were issued by the Appellants and signed by the Respondents when the rates of pay were increased in January 1997 and June 1998. 5. From January 1996 each of the Respondents worked for the Appellants as the ET put it "on many more days than not". They did not work for any other employer. They were engaged directly by the Appellants and were offered work before other casual labour which was engaged through an agency. A rota system ensured that those who said they were available for work but were not offered it were rewarded and that those who were offered work for which they were not available were penalised. The Appellants provided training and (in the third year) protective clothing for the Respondents who worked under their control and direction.
It is clear from the ET's reasoning that they were well aware that before they could find there was an overarching or global contract they had to find "an irreducible minimum of obligation on each side" necessary to create a contract of service. There could be no such mutuality if the position was simply that the Appellants were under no obligation to offer work and the Respondents were under no obligation to accept it. (See Clark -vOxfordshire Health Authority [1998] IRLR 126 at paras. 22 and 41).
The ET found that there was such an agreement which contained the express terms upon which casual work had been offered and accepted in the documents to which...
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