POA v Gough
Section 230(1) of the Employment Rights Act 1996 (ERA) states that an employee is an individual who has entered into or who works under a contract of employment. In POA v Gough, the Employment Appeal Tribunal (EAT) said that an employee can hold down two jobs at the same time with two different employers, as long as the jobs are compatible with one another.
Basic facts
Mr Gough worked full time for the Prison Service. In 2005 he was elected National Vice Chairman of his union, the POA, which required him to carry out certain specific duties which included helping members with daily issues relating to their employment.
The Prison Service agreed that he could spend 15 per cent of his time on union duties while continuing to receive his full Prison Service salary. Mr Gough also received an annual “remuneration” from the union in the region of £14,000 per year plus expenses and the use of a car which was taxed under the usual arrangements with the Inland Revenue.
The question arose as to whether Mr Gough could be an employee of the Prison Service as well as an employee of the POA. In other words, whether he could work under two (or more) contracts of employment at the same time.
Tribunal decision
The first point to establish was whether Mr Gough was an employee of the POA within section 230 of the ERA. The tribunal said that he was, according to the factors set out in 102 Social Club & Institute Ltd v Bickerton, because:
• he was paid for his services
• the payment was fixed and varied with inflation
• he had a right to be paid
• the size of the payment was substantial
• he was subject to the control of the POA
• he was required to carry out significant duties
• he was paid like any other employee
The judge concluded that Mr Gough was therefore an employee of both the Prison Service and the POA.
EAT decision
And the EAT agreed. It held that the tribunal judge had applied the correct test when establishing whether Mr Gough could be an employee of both the Prison Service and the POA.
It then went on to say that, according to the decision of the Court of Appeal in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd an individual could have two jobs with separate employers at the same time as long as the jobs were compatible with each other.
It said that it was irrelevant that this finding had been made in a case of vicarious liability because what was being explained in that case also applied when deciding whether an individual could have two separate contracts of employment.
The employment judge had not, therefore made an error of law in finding the individuals to be employees of the POA as well as of the Prison Service.