''O'Kelly v Trusthouse Forte plc''

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 728 was 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 which a bare majority held that a requirement for a

contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...

is "mutuality of obligation" between the parties, which was thought to mean an ongoing duty to offer and accept work. It has been consistently doubted, and its outcome reversed by legislation, and its reasoning superseded by ''

Autoclenz Ltd v Belcher ''Autoclenz Ltd v Belcher'' 011UKSC 41is a landmark UK labour law and English contract law case decided by the Supreme Court of the United Kingdom, concerning the scope of statutory protection of rights for working individuals. It confirmed the ...

'', which states that the only "mutual" obligations that are required is the consideration of work for a ''

quid pro quo Quid pro quo ('what for what' in Latin) is a Latin phrase used in English to mean an exchange of goods or services, in which one transfer is contingent upon the other; "a favor for a favor". Phrases with similar meanings include: "give and take", ...

''.E McGaughey, ''A Casebook on Labour Law'' (Hart 2019) ch 3, 113

Facts

Some waiters were hired to do dinner functions at the

Grosvenor House Hotel ] JW Marriott Grosvenor House London, originally named the Grosvenor House Hotel, is a luxury hotel that opened in 1929 in the Mayfair area of London, England. The hotel is managed by JW Marriott Hotels, which is a brand of Marriott Internationa ...

. They were called up for banqueting occasions, and in their contracts it was written that they had no obligation to come, and by the same token the employer had no obligation to call them. They tried to organise a trade union, and were dismissed. They argued that they were dismissed unfairly, because trade union legislation (now in the Trade Union (Labour Relations) Consolidation Act 1992 s 162) gave them a right to not be discriminated against as "employees". However the employer argued that the

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 ...

legislation (now,

Employment Rights Act 1996 The Employment Rights Act 1996 (c. 18) is a United Kingdom Act of Parliament passed by the Conservative government to codify existing law on individual rights in UK labour law. History Previous statutes, dating from the Contracts of Employment ...

s 94) only covered "employees" - something different (now defined in

ERA 1996 The Employment Rights Act 1996 (c. 18) is a United Kingdom Act of Parliament passed by the Conservative government to codify existing law on individual rights in UK labour law. History Previous statutes, dating from the Contracts of Employment ...

s 230) - which did not cover their situation. Representing the employer was

Alexander Irvine QC 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 ...

, later the Lord Chancellor.

Judgment

Sir John Donaldson MR John Francis Donaldson, Baron Donaldson of Lymington, (6 October 1920 – 31 August 2005) was a senior British judge who served as Master of the Rolls for ten years, from 1982 to 1992. He is best known in some circles for his role as presiding ...

held the waiters were not "employees" (either of the function hall or the agency) because they did not, technically, have to turn up to work for a shift, and they could be sacked at any time. Sir John Donaldson MR said therefore, that the contract lacked "mutuality" and could not be described as one between an "employee" and "employer". Because they were not "employees" they did not have a right to claim unfair dismissal. And so even though the trade union discrimination legislation protected them, they did not have access to the tribunal to make those rights effective. The legal effect was to put them in the same boat as the "self employed" and that they were not covered by the Act. The practical effect was they had no right to fair dismissal and could be sacked for organising a trade union.

Notes

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References

*E McGaughey, ''A Casebook on Labour Law'' (Hart 2018) ch 3, 113 United Kingdom labour case law United Kingdom equality case law United Kingdom trade union case law Court of Appeal (England and Wales) cases 1983 in case law 1983 in British law

Facts

Judgment

See also

Notes

References