No claims

Eric Muschett v HM Prison Service

To bring a claim of unfair dismissal, claimants have to show they are employees; to bring a discrimination claim they have to show they are either an employee or employed under a contract to do the work personally. In Eric Muschett v HM Prison Service, the Court of Appeal said that an agency worker who was not an employee of either the agency or the end user could not bring either claim.

Basic facts

Mr Muschett signed a contract with Brook Street on 15 January 2007 which included a clause that he, Brook Street or the client could terminate the assignment at any time. He was then sent to work as a temporary cleaner for HM Prison Service (HMPS) at Feltham Young Offenders Unit on 22 January 2007.

When his assignment was terminated on 10 May, Mr Muschett lodged unfair and wrongful dismissal claims as well as claims for sex, race and religious discrimination.

Relevant legislation

Section 230 of the Employment Rights Act 1996 states that an "employee" is someone who works under a contract of employment (also known as a contract of service).

Under section 78(1) of the 1976 Race Relations Act (and likewise other discrimination legislation), “employment” means employment under a contract of service or a contract personally to execute (i.e. carry out) any work or labour.

Under section 7 of the RRA (and likewise other discrimination legislation), a “contract worker” is someone who works for a principal (or end user), but is “employed” by someone else who supplies them under a contract made with that end user for instance someone who is seconded to another employer. And it should also in our view cover agency workers who are discriminated against by the end user.

Tribunal and EAT decisions

The tribunal said Mr Muschett was not an employee of Brook Street as he was a temporary worker, working under a contract for services. That being so, he could not bring a claim under section 7 as he was not employed by Brook Street. In doing so, it appears to have ignored the wider definition of employment in section 78 RRA.

Nor was he an employee of HMPS. This was because there was no mutuality of obligation (an obligation by the prison service to offer work and an obligation by Mr Muschett to accept it) between the parties. Nor was there any need to imply a contract between him and HMPS as the terms between them were already clear and there was nothing to imply.

He was therefore not an employee and so could not pursue his dismissal claims. 

As for his claims of discrimination, the tribunal said that Mr Muschett did not satisfy the definition of “employment” in section 78. Although he was under the “control” of the prison service when doing his work, he was paid by Brook Street and had no obligation to provide his services personally to HMPS. The lack of mutuality of obligation also meant that he could not come within section 78.

And unfortunately for Mr Muschett, the EAT agreed with the tribunal.

Court of Appeal decision

As did the Court of Appeal which said that an employment contract could not be created just because that was the wish of the “putative employee”. It could not find any grounds on which to question the tribunal’s finding that Mr Muschett was not an employee of HMPS.

Nor were there any grounds on which to imply a contract between them. Mr Muschett was simply a temporary agency worker with the prison service who wanted a permanent job with them if one came up. “The bid to deduce from those facts that there impliedly arose an implied contract for services between the parties is, in my judgment, an ambition too far”.

It also dismissed his section 78 case because (although the tribunal had wrongly focused on the issue of mutuality of obligation), its finding that he did not have a contractual obligation to HMPS to do any work personally for them was fatal to his claim.