''Nethermere (St Neots) Ltd v Gardiner And Another''

984 Year 984 ( CMLXXXIV) was a leap year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – German boy-king Otto III (4-years old) is seized by the deposed Henry II ( ...

ICR 612 is a

UK labour law United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK can rely upon a minimum charter of employment rights, which are found in Acts of Parliament, Regulations, common law and equit ...

case in the Court of Appeal in the field of home work and vulnerable workers. Many labour and employment rights, such as

unfair dismissal In labour law, unfair dismissal is an act of employment termination made without good reason or contrary to the country's specific legislation. Situation per country Australia (See: '' unfair dismissal in Australia'') Australia has long-standing ...

, in Britain depend on one's status as an "employee" rather than being "self-employed", or some other "worker". This case stands for the proposition that where "mutuality of obligation" between employers and casual or temporary workers exists to offer work and accept it, the court will find that the applicant has a "

contract of employment An employment contract or contract of employment is a kind of contract used in labour law to attribute rights and responsibilities between parties to a bargain. The contract is between an "employee" and an "employer". It has arisen out of the old ...

" and is therefore an employee. This case is also notable in that it was one of former UK Prime Minister

Tony Blair Sir Anthony Charles Lynton Blair (born 6 May 1953) is a British former politician who served as Prime Minister of the United Kingdom from 1997 to 2007 and Leader of the Labour Party from 1994 to 2007. He previously served as Leader of th ...

's last cases conducted as a

barrister A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...

. He acted for the employers. He appeared in the Employment Appeal Tribunal on behalf of the employer but his arguments to deny the workers' unfair dismissal rights were emphatically rejected in the judgment. The employers also lost in the Court of Appeal.

Facts

The applicants (Mrs Taverna and Mrs Gardiner) sewed trouser flaps part-time in the factory of Nethermere Ltd. At different times they became pregnant and had an arrangement to work from home. Each worked 5 to 7 hours a day, and for all but 8 or 12 weeks a year. They used sewing machines provided by Nethermere Ltd. Their hours varied according to the employer's needs, they were paid according to the quantity of trouser flaps they made and they were not formally obliged to accept work. There was a dispute about an entitlement to holiday pay, and when the employer refused to give them the entitlement, they claimed they had been unfairly and constructively dismissed. So the preliminary question on appeal was whether the ladies were "employees" under a "contract of employment" and therefore entitled to unfair dismissal rights under s 153 of the Employment Protection (Consolidation) Act 1978 (now s 94 Employment Rights Act 1996). The Industrial tribunal held that there was a contract of employment, applying the test of whether the ladies could be said to be in business "on their own account". The

Employment Appeal Tribunal The Employment Appeal Tribunal is a tribunal in England and Wales and Scotland, and is a superior court of record. Its primary role is to hear appeals from Employment Tribunals in England, Scotland and Wales. It also hears appeals from decisions o ...

dismissed the employer's appeal on this point, finding in favour of the ladies. The employer appealed again.

Judgment

Employment Appeals Tribunal

The judge, Tudor Evans J held that the claimants were entitled to holiday pay. He rejected "mutuality of obligation" as a criterion. However, in the Court of Appeal, "mutuality of obligation" was accepted as a precondition to a contract, but interpreted in a different way. For the later history, ''

Carmichael v National Power plc ''Carmichael v National Power plc'' 999UKHL 47is a British labour law case on the contract of employment for the purpose of the Employment Rights Act 1996. Facts Tour guides had complained that they hadn't received written statement of the empl ...

999 999 or triple nine most often refers to: * 999 (emergency telephone number), a telephone number for the emergency services in several countries * 999 (number), an integer * AD 999, a year * 999 BC, a year Books * ''999'' (anthology) or ''999: ...

AC 1226, Tony Blair's old pupil master, now the

Lord Chancellor The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. The ...

Derry Irvine, reconfigured "mutuality of obligation" to mean an expressed continuing duty to provide work.

Court of Appeal

In the Court of Appeal Stephenson LJ in the majority found, first, that whether a contract created a contract of service (and therefore a contract of employment) rather than a contract for services was one of fact, not of law. This has been followed in ''Carmichael'' in 1999 by the House of Lords. Stephenson LJ discussed what "mutuality of obligation" meant.

ICR 612, 622–623 It followed that the ladies were under a contract of employment (however compare the definition of "mutuality" given in ''

'', by

Lord Irvine of Lairg Alexander Andrew Mackay Irvine, Baron Irvine of Lairg, (born 23 June 1940), known as Derry Irvine, is a Scottish lawyer, judge and political figure who served as Lord Chancellor under his former pupil barrister, Tony Blair. Education Irvine wa ...

Significance

The Employment Appeals Tribunal (

983 Year 983 ( CMLXXXIII) was a common year starting on Monday (link will display the full calendar) of the Julian calendar. Events By place Europe * Summer – Diet of Verona: Emperor Otto II (the Red) declares war against the Byza ...

ICR 319) before appeal to the Court of Appeal is of interest, because a future

UK Prime Minister The prime minister of the United Kingdom is the head of government of the United Kingdom. The prime minister advises the sovereign on the exercise of much of the royal prerogative, chairs the Cabinet and selects its ministers. As modern pri ...

was representing the employer. A key plank of the

New Labour New Labour was a period in the history of the British Labour Party from the mid to late 1990s until 2010 under the leadership of Tony Blair and Gordon Brown. The name dates from a conference slogan first used by the party in 1994, later seen ...

election pledge in 1997 was to sustain

labour market flexibility The degree of labour market flexibility is the speed with which labour markets adapt to fluctuations and changes in society, the economy or production. This entails enabling labour markets to reach a continuous equilibrium determined by the inter ...

, which fits in with the approach of his submissions here. In essence, he was arguing that because the interpretation of a contract is one of law, and because it can only be a contract "of employment" if there is a continuing mutual obligation on each party to offer wages or work, the home workers were not employees and therefore were not under the protection of unfair dismissal rights.

Notes

{{reflist, 2

References

*E McGaughey, ''A Casebook on Labour Law'' (Hart 2018) ch 3

External links

The Employment Appeal Tribunal webpage
*The judgment of a subsequent leading cas

QB 90 Labour relations in the United Kingdom United Kingdom labour case law Court of Appeal (England and Wales) cases 1984 in case law 1984 in British law Tony Blair 1984 in labor relations