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James v. Redcats (Brands) Ltd


Employment Appeal Tribunal

The appellant courier (J) appealed against a decison of an employment tribunal that she was not a worker or home worker employed by the respondent company (R) within the meaning of the National Minimum Wage Act 1998 s.54(3) and s.35 respectively.
J had delivered parcels to private addresses for R. J had used her own car to make the deliveries and she had the right to deliver parcels for other enterprises. However, R had set the deadlines for J's deliveries and R had given detailed instructions on how the work was to be carried out. The employment tribunal held that there was only a contract to provide services between J and R, as there was no mutuality of obligation, as R gave no guarantee as to the volume of work and J could have declined work. J submitted that the tribunal erred in finding that there was no mutuality of obligation. She argued that she could not in fact decline work at will, and that the contract impliedly obliged R to provide J with parcels if there were any for delivery in her area.
HELD: The lack of any mutual obligations when no work was being performed was of little, if any, significance when determining the status of the individual when work was performed. There was no inconsistency in finding that there was a contract of employment for particular contractual stints even though there was no continuing overarching contract because of a lack of mutual obligations in the period between engagements, McMeechan v Secretary of State for Employment (1997) ICR 549 CA (Civ Div) applied. The instant case was remitted to a fresh tribunal.
Judgment accordingly.
Counsel for the respondent: Paul Rose QC leading Adam Solomon.

[2007] IRLR 296

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