Mr 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.
Mr 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.
The 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.
The 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 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 applied, in
relation to the single assignment with Sutcliffe Catering, and came
to the conclusion that that assignment gave rise to a contract of
service between Mr McMeechan and Noel Employment Ltd.
In this case the Court of Appeal confirmed the principle
established in earlier cases that, as regards casual or temporary
workers, there are often two engagements which employment tribunals
have to look at. Firstly, the
general engagement which involves a number of
single engagements and, secondly, the
specificengagements which make up the general engagement.
The reason for doing so is that individual engagements may not be
of sufficient duration to found a claim for unfair dismissal (there
must one year (two years prior to 1 June 1999) of continuous
service), redundancy etc.
In considering the existence of a general engagement, the
courts will look to see whether there is a global or umbrella
contract of service. They will therefore have regard to all the
terms and conditions which apply whether written, oral or implied
and also to the conduct of the parties. They will then step back
and view the whole picture from a distance. One of the important
factors they will look at in considering the general engagement is
‘mutuality of obligation’.
In a general engagement, there must be an obligation on the
part of the engager to offer work, when it is available, and an
obligation on the part of the worker to personally perform that
work when it is offered.
However, in considering a single engagement, the mutual
obligation, which must exist for there to be a contract of service,
is that the engager agrees to provide the work offered and the
worker agrees to perform the work personally. There is no need for
there to be an obligation to offer and accept future work as there
is only one engagement to consider.
The important point to bear in mind is that where you have a
general engagement you consider the overall contract in determining
employment status. Where there is a single engagement it is the
contract for that specific engagement that forms the starting
point.
