»Ê¹ÚÌåÓýapp

EAT/1277/99

Point at issue

Mrs MacFarlane (“Mrs F�) and Mrs Skivington (“Mrs S�) had previously worked as gymnastic instructors for Glasgow City Council (the “Council�) on a casual basis when in 1992 the Council attempted to regularise the relationship by sending them a document setting out their terms of engagement. Both declined to sign the document. In 1998, Mrs M and Mrs S claimed unfair dismissal.

»Ê¹ÚÌåÓýapp preliminary matter was whether they had been engaged under contracts of service or contracts for service.

Facts

Some of the facts found by the Employment Tribunal included the following:

• the Council, in conjunction with the sports governing body, specified the courses which were to be taught
• it provided the venue, equipment and support staff to set up the equipment
• Mrs M and Mrs F were required to wear uniforms provided by the Council
• the council monitored their work
• timesheets were completed and payment was made on the basis of the number of hours worked
• Mrs M and Mrs S were required to have their own public liability insurance
• there was no entitlement to sick pay, holiday pay or pensions.

Decision

»Ê¹ÚÌåÓýapp Employment Tribunal found that they were not employees and hence their claim to unfair dismissal failed. Appeals were lodged and the cases then came before the EAT. »Ê¹ÚÌåÓýapp appeals were allowed and the cases were remitted to the original tribunal.

Commentary

»Ê¹ÚÌåÓýapp most important factor in the Employment Tribunal’s eyes was that, if Mrs M and Mrs S were unable to attend work, the normal practice was that they would arrange for a substitute from the register of coaches maintained by the Council to cover their classes. Occasionally, the Council would organise a replacement. »Ê¹ÚÌåÓýapp Employment Tribunal placed great emphasis on the decision in the case of Express and Echo Publications Ltd v Tanton (see ESM7210) and felt that, as Mrs M and Mrs S could arrange for substitutes to attend on their behalf, this was inconsistent with a contract of service.

»Ê¹ÚÌåÓýapp EAT concluded that the relevant clause in the Express & Echo case was extreme and it was distinguishable from this case for four cumulative reasons

• Mrs M and Mrs S could not choose not to attend or not to work in person
• they could not provide anyone but only someone from the Council register
• the Council sometimes organised the replacement
• the Council did not pay Mrs M/Mrs S but instead paid the substitute direct.

This case is support for the view that the decision in Express and Echo Publications Ltd v Tanton is not unlimited in its application. Lindsay J. drew the following distinction between the Express & Echo and the Glasgow City Council cases:

‘Tanton indicates that if a contract contains a provision that the individual need not perform any services personally then it cannot be a contract of service � see paragraph 32 � and, so regarded, it does not deal with a limited ability to delegate such as that in the case before us. Tanton was a case where the individual could at his own will perform his contract by sending along someone else. Our case, by contrast, is a case in which, in limited circumstances, it would not be a breach of the individual’s contract if, the individual being unable to attend, she arranged for another person approved by the employer to attend in her place.�

He also quoted the following passage from the Ready Mixed Concrete case (see ESM7030), with his emphasis:

“Freedom to do a job either by one’s own hands, or by another’s, is inconsistent with a contract of service, though a limited or occasional power of delegation may not be: see Mr Atiyah’s Vicarious Liability in the Law of Torts (1967), pp.59-61, and the cases cited by him.�

»Ê¹ÚÌåÓýapp relevant clause in Express & Echo contained the words “In the event that the contractor is unable or unwilling to perform the services personallyâ€�. »Ê¹ÚÌåÓýapprefore, where there is only a limited right of substitution, the Courts may well take the view that, in the context of the overall picture, a contract of service may exist.