Labour Law Cases

Ready Mixed Concrete v Minutes of Pensions and National Insurance

Contract of employment requires:

1. Consideration (mutuality of obligation)

2. Control

3. Features are consistent with a contract of service

These are not sufficient to establish a contract of employment.

Sending a replacement removes the element of personal service.

The absence of control is fatal to the existence of the employment contract - only needs to be the power to exercise control rather than actual control.

Stevenson, Jordan & Harrison Ltd v MacDonald & Evans Ltd

Lord Denning’s integration test - is the individual an integral part of the business? If it is part and parcel then this is a factor indicating they are an employee.

Revenue & Customs Commissioners v PGMOL

Needs to establish the employer exercises a sufficient framework of control - this becomes problematic in the case of highly skilled workers.

The test is multifactorial in its approach; court must look at things like payment of tax, whether the parties intended to create a relationship of employment, if they are paid a wage or a fee etc.

Express & Echo Publications v Tanton

Personal service is an irreducible minimum

Carmichael v National Power

Mutuality of obligation requires:

1. Work/wage bargain

2. Evidence of continuity of performance

Tour guides of a power station were on casual contracts and worked on an ‘as needed’ basis. They were not employees as they were at liberty to reject work which negated mutuality of obligation through lack of continuous performance.

Montgomery v Johnson Underwood

Agency worker was not an employee as couldn’t establish criterion of control.

Pulse Healthcare

There is scope for retrospective mutuality of obligation. Carer had 4 years of the same client and worked for them regularly, had no other clients.

Staffordshire Sentinel Newspapers v Potter

Personal service was missing due to a substitution clause in the contract giving the supplier an unfettered power to send a substitute.

McFarlane v Glasgow City Council

Contract didn’t cease due to substitution clause due to limited substitution and delegation. The clause only provided for when the gym instructor was unable, rather than unable and unwilling to arrange a replacement from a register of coaches maintained by the employer. Since the employer had the power to veto a substitute she was held to be an employee.

Stringfellow Restaurant v Quashie

Men gave tokens to a lap dancer in a night club and at the end of the night she cashes in the tokens from the club who took a cut of her earnings. Although there is control there is no work/wage bargain so she was not an employee as she was working as a service for the men, not as an employee of the club.

Cornwall CC v Prater

P was a tutor at an out of school club on an ‘as needs’ basis. There were a series of single discrete engagements of varying durations at the pupil’s respective homes. There was no continuous contract and the council had no obligation to allocate pupils to P. There were several gaps but this lasted over a period of 10 years. The court held there was sufficient mutuality of obligation to treat each hiring as an employment contract. s 212 ERA 1996 was the statutory bridge to establishing continuous employment linking each individual contract.

Sharpe v Bishop of Worcester

Church of England rector was not a worker because there was no contract with the church. Volunteers will not be classed as workers.

James v Redcats

Imposes mutuality of obligation for workers but not in the same way as employment.

Dominant purpose test for personal service: is the dominant purpose provision of personal service or is this just an incidental feature? This helps determine if an individual is running a business and whether the client/customer exception has been engaged.

Nursing and Midwifery Council v Somerville

Only work/wage bargain is required to establish mutuality of obligation - no need for continuity of performance.

Pimlico Plumbers Ltd v Smith

Plumber had a contractual obligation to work 40 hours but Pimlico had no obligation to provide him with work. Plumber could refuse work although this was limited by the 40 hour contract. There was insufficient mutuality of obligation to be an employee , but he was required to be able to work so was able to satisfy the test for a worker contract.

UKSC endorsement of the dominant purpose test.

Where the hirer exercises control like wearing uniform, driving a branded van, carrying ID etc. this is good evidence the hirer is not a client or customer.

The substitution clause was different to the deliveroo one because the plumber needed consent from Pimlico meaning the substitution was discretionary. Pimlico thought they had removed personal service from the contract but he was able to claim back 15 years of holiday pay.

Cotswold Development Construction Ltd v Williams

The integration test - is the worker:

a) actively marketing their service as an independent person (have clients/customers)

b) recruited by the other party to work for it as an integral part of its operations

Hospital Medical Group v Westwood

Preferred the integration test.

Dr Westwood was a GP with his own practice but was acting as a worker for HMG for hair restoration procedures. These were exclusive and integrated into HMG operations, and Dr Westwood didn’t market these procedures to the world in his own

Bates van Winkelhof v Clyde and Co LLP

There is no test to identify a worker - it is fact sensitive.

The individual needs to show they are subordinate to the hirer in the sense of subservice in return for remuneration. Can partners of LLPs be workers? Court of appeal said no as their was no subordination but this was reversed by the UKSC. Workers do not require subordination like contractors personally to do work.

R (on the application of IWGB) v CAC (deliveroo)

A genuine and unfettered right of substitution to send a replacement was fatal to the existence of personal service. As the clause was used often it wasn’t a sham - it was absolute and required no consent from deliveroo.

Deliveroo workers were signed up to the union which was signed off as independent. There was no voluntary recognition from deliveroo so they invoked Schedule A1 for forced recognition. CO was satisfied that they were workers but the CAC said they were not workers due to the lack of personal service.

Johnson v Transopco UK Ltd

Driver of a black cab who used the MyTaxi app to obtain fares for 9 months alongside other sources of customers. EAT held they were carrying out a business/profession.

Uber BV v Aslam

App set the fare and drivers had no power to change the contractual terms. There was a limited choice to refuse rides as if they had a high cancellation rate uber would deactivate their app. Their driving route was strictly controlled. This degree of control was sufficient to establish worker status.

Mingeley v Pennock (t/a Amber Cars)

M was trying to make a racial discrimination claim under EA 2010 but needs to establish contract personally to do work in order to qualify. Taxi Driver who had his own car and paid Amber Cars £75 /week for radio access which allocated customers - this was discretionary and doesn’t need to accept. There was an absence of the work/wage bargain as there was no obligation to perform or provide work, meaning there was no mutuality of obligation.

Jivraj v Hashwani

Added subordination as a requirement for contract personally to do work. Professional arbitrator was hired to resolve a private dispute between two Muslim families. They realised J was not the right denomination of Islam and J tried to claim religious discrimination under EA 2010. The court found he was an independent service provider as the lack of subordination meant that he was not under a contract personally to do work.

Turner v Sawdon & Co

The duty to provide work does not exist. A master can pay wages but is under no obligation to provide work.

William Hill Organisation Ltd v Tucker

Where an employee falls within one of the exceptions is an express garden leave clause to dislodge the implied right to work.

Miles v Wakefield

Consideration used to be wages for work, now it is that you are ready, willing and able to work.

Wilsons & Clyde Coal Co v English

Divided the duty to exercise care into:

1. Provision of competent staff

2. Adequate material

3. Proper system and effective supervision

This case abolished the doctrine of common employment which allowed the delegation of the duty of care.

Walker v Northumberland CC

First successful case at extending the implied duty of care to cover psychiatric welfare.

Sutherland v Hatton

Lady Hale’s 16 part test for establishing whether the psychiatric injury was as a result of the work.

Barber v Somerset CC

Sutherland v Hatton is not to have anything like statutory force, but is useful practical guidance.

Spring v Guardian Assurance

Extends the duty of care for economic wellbeing post employment with giving employee reference.

Crossley v Faithful & Gould Holding Ltd

A senior employee and director didn’t engage the implied duty of care for economic wellbeing as he had the resources to take his own financial advice.

Malik v BCCI

Bankers worked for a corrupt bank - didn’t have any part in the fraud but subsequently suffered to find employment elsewhere due to their reputation of working for a corrupt bank.

Recognised the implied term of mutual trust and confidence, with the reasonable and proper cause defence.

Gogay v Hertfordshire CC

Gogay worked at a care home for abused children and one of the children made an allegation that she had abused her. The council suspended Gogay without taking any investigation first and Gogay suffered a breakdown due to the manner of the suspension. Here the suspension breached the term of mutual trust and confidence.

Johnson v Unisys

The termination of the contract which caused psychiatric injury is not a breach of mutual trust and confidence as the term disappears just before the contract terminates. Creates the Johnson exclusion zone.

Forces you to claim unfair dismissal under the Employment Rights Act 1996.

Tesco Stores v UDSAW

The employer engaged in collective agreements where enhanced pay was a permanent feature. The implied term of anti avoidance prevented them from fire and rehire.

Braganza v BP Shipping Ltd

There is an implied term to act rationally. Worker on a ship disappears - if he was found to have committed suicide or have fallen overboard. The wife could only claim pension benefits if he accidentally fell overboard. The employer claimed it was suicide and this was held to be an irrational decision.

Pepper v Webb

Gardener refused to do work and made derogatory remarks towards his employer. The refusal to obey lawful and reasonable instructions amounted to a repudiatory breach of contract.

Donovan v Invicta Airlines

Employer told drunk pilot to fly the plane anyway. Pilot refused, was dismissed and then claimed wrongful dismissal. Pilot won because the instructions were unsafe.

Cresswell v Board of Inland Revenue

There is a duty to adapt - clerical assistants had to adapt to work with new technology.

Briscoe v Lubrizol

Example of an employee in breach of mutual trust and confidence. Employee was off on long term sickness leave; employer has a duty to keep in contact and check in on them. Employee made no effort to attend check in meetings or make any contact so was in breach.

RDF Media Group v Clements

Public denunciation during period of transfer to new employer was a breach of mutual trust and confidence.

Tullet Prebon plc v BGC Brokers LP

Once notice is handed in the duty shrinks. Forward contracts results in two sets of obligations creating a conflict of interest.

Sybron Corp v Rochem Ltd

There is no duty to disclose the wrongdoing of others unless you are in a position of management, even if this means you incriminate yourself.

Faccenda Chicken Ltd v Fowler

Customer lists, pricing policies, details of prices and other sales data didn’t amount to trade secrets as they were readily available to employees. The court will consider the nature of employment, the nature of the thing itself and the sector of work.

Nottingham Uni v Fishel

Employees are not fiduciaries.

Johnstone v Bloomsbury

Junior doctor contracted to 40 hours and on call for another 48 hours. Becomes overworked - question of the relationship between express term stipulating these long hours and implied duty of reasonable care. LJ Brown Wilkinson says when an express term offers an option it should be exercised in a way which is compatible with implied terms in law.

United Bank v Akhtar

Mobility clause. 6 days was considered unreasonable notice period so the employer was in repudiatory breach of mutual trust and confidence.

Land Securities Trillium Ltd v Thornley

Flexibility clause for an architect. Moved to a managerial position doing no architecture - the term of mutual trust and confidence struck down the flexibility clause.

Commotion Ltd v Rutty

Employer’s evidence for rejecting request for flexible working needs to match the actual reason which is given.

Hartlepool Borough Council v Llewellyn

Piggyback claims for equal pay are valid.

Glasgow CC v Fox

The word company includes commercial vehicles, so an LLP would be an associated employer for the purposes of equal pay.

For Women Scotland v Scottish Ministers

Only biological females are covered by ‘sex’ under the EA 2010, doesn’t include transgender women.

Asda Stores v Brierley

Female shelf stacker rated the same job score as lorry depot male. Same employer, 2 different sites. Need to imagine a hypothetical retail store next to the depot and compare the terms and conditions. Need to consider whether there are common terms.

Rainey v Greater Glasgow Health Board

Prosthetists were hired at an elevated salary making the existing prosthetists unhappy. They got a female to raise an equal pay claim in the hopes they could all piggyback. However the material factor defence of market forces was valid and genuine so the claim was dismissed.

Ridge v Baldwin

Common law wrongful dismissal can be for a bad reason, no reason or any reason.

Addis v Gramophone Co Ltd

Injury to feelings will not be compensated, damages in respect of manner of dismissal are not available and losses as a result of being unable to secure new employment will not be compensated. Financial loss only!

Eastwood v Magnox

Can claim for any loss attributable to distressing events leading up to dismissal.

Harper v Virgin Net Ltd

Cannot claim loss under wrongful dismissal for the inability to claim unfair dismissal due to 2 years service requirement.

Commerzbank AG v Keen

Can claim for a discretionary bonus payment even if it is not guaranteed.

Edwards v Chesterfield Royal Hospital NHS Foundation

Can’t claim damages for breach of an incorporated contractual procedure. The remedies available are injuction/interdict or specific implement/performance.

Geys v Societe Generale

UKSC applies the elective theory to outright dismissal. There is no such thing as automatic termination of contract. The employee has a choice:

1. Accept the employer’s repudiatory breach and terminate the contract

2. Affirm the contract and claim damages

You can therefore sue for unpaid wages as a debt.

Western Exchange v Sharp

For unfair constructive dismissal you use the common law test for repudiatory breach where the employer’s behaviour needs to be intolerable and unreasonable.

Post Office v Foley

How would a range of reasonable employers respond to that situation? If it falls under the range of responses then it is fair.

Norton Tool v Tewson

Can claim compensation for unfair dismissal for:

1. Payment in lieu of notice (deduct income tax + NI)

2. Past loss of earnings (day of dismissal to day of hearing at tribunal)

3. Future loss of earnings (need to get a new job in roughly 3 month period as you need to mitigate your own loss)

4. Loss of right to claim unfair dismissal

Dunnachie v Kingston Upon Hull CC

Restricts compensation for unfair dismissal to financial loss and doesn’t allow for a claim for hurt feelings mirroring the common law for wrongful dismissal.

National Union of Professional Foster Carers v Certification Officer

Foster carers are paid by a local authority but have no contract. Foster carers cannot unionise as workers require a contract. NUPFC tried to get listed so they could become independent but the CO rejected the application. The union sued the CO and the UK government for having law inconsistent with Article 11 ECHR. The court held the CO was correct in rejecting the application but the UK law was incompatible with the ECHR so the union could be listed. This is a strange position as foster careers are in a union but still not classed as workers.

Mercer v Alternative Future Group Ltd

Held that s 146(1)(b) activities do not cover industrial action. s 238A says getting dismissed for participating in a strike results in automatically unfair dismissal. There is no mirroring provision for detriments which are actions short of dismissal. UKSC found s 146 to be incompatible with Article 11 ECHR and issued a declaration of incompatibility. 2025 Act will redress this.

Young, James and Webster v UK

Closed shop agreements to join trade unions are illegal.

RMT v Serco

Banning secondary action is not a breach of Article 11 ECHR.