Employment Law Speed Read – 02/07/18
2nd July, 2018
This week we look at a case in which the Employment Appeal Tribunal (EAT) considered whether an individual engaged on a "bank basis" with no guaranteed hours was an employee.
Hafal Ltd v Lane-Angell
In Hafal Ltd v Lane-Angell the EAT considered the issue of mutuality of obligation for casual staff engaged under an umbrella contract.
Hafal Ltd, a charity, engaged Miss Lane-Angell, as an Appropriate Adult (AA) attending police stations on a ‘bank basis’ with no guaranteed hours of work, from March 2013 to January 2016 – such an arrangement is often referred to as an umbrella contract.
Hafal Ltd introduced a requirement in May 2015 that AAs must be available for at least 10 shifts in a month, and three failures to respond to call-out requests would lead to removal of that AA from the rota.
In January, after failing to respond to call-out requests, Miss Lane-Angell was removed from the rota and informed by Hafal Ltd that she would not be offered more work. Miss Lane-Angell brought a claim of unfair dismissal on the grounds that she was an employee.
The Employment Tribunal (ET) found for Miss Lane-Angell, holding that she was an employee pursuant to the umbrella contract under which she was engaged by Hafal Ltd for a period of over two years. This was regardless of the fact that Miss Lane-Angell did not work continuously over the whole period.
Employment Appeal Tribunal
The EAT found that the ET had failed to take into account the terms of the letter of engagement between Hafal Ltd and Miss Lane-Angell, which did not require Miss Lane-Angell to offer her availability to work. The ET was also mistaken in considering the amended terms of engagement, which were brought into force in May 2015, as applying across the entire term of Miss Lane-Angell’s engagement when holding that she had been an employee.
The EAT therefore held that Miss Lane-Angell was not an employee of Hafal Ltd, on the basis that there were express contractual terms negating any obligation to offer any minimum quantity of work, or for Miss Lane-Angell to make herself available. In any event, even if she had been held to be an employee once the amended terms of engagement were brought into force, she would not have been employed during the requisite period and so was not eligible to pursue a claim of unfair dismissal.
This case is a reminder that the Tribunal should first consider any express contractual terms that have been agreed between the parties, to assess whether the commercial imperatives could, over time, crystallise into legal obligations. It is therefore important that employers’ terms are clear and actually bear resemblance to what happens in practice.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.