Carmichael & another v National Power Plc
House of Lords 18.11.99 [2000] IRLR 43
We reported the decision of the Court of Appeal in this case in Issue 23 of LELR and welcomed the approach of the Court which was prepared to find that the power station guides employed on a "casual as required basis" were employees. Unfortunately, on appeal the House of Lords have overturned this decision.
This means that it is important that the Government now bring in the regulations permitted by Section 23 of the Employment Relations Act to provide protection for wider classes of "workers" rather than the restricted definition of "employee".
Mrs Carmichael and Mrs Leese started working at the Blyth Power Stations in Northumberland in 1989. The work was part time. There was correspondence between the women and the Power Station in 1989 which was argued amounted to a contract of employment which entitled the women to written particulars of the terms of their employment under Section 1, Employment Rights Act 1996.
Lord Irvine, the Lord Chancellor gave the lead judgment in the House of Lords. He endorsed the approach taken by the Employment Tribunal who had said that the correspondence did not constitute any contract and that the case "founders on the rock of absence of mutuality", that is when they were not working as guides they were in no contractual relationship with National Power. The Tribunal looked at the language of the correspondence; the way it had been operated; and the evidence of the parties as to how it had been understood.
The Tribunal decided that by accepting an "offer of employment as a station guide on a casual as required basis," the women were doing no more than intimate that they were ready to be invited to attend for casual work as station guides as and when National Power required their services. National Power was not promising to offer them any casual work," but merely intimating that it might be offered, so also they were not agreeing to attend whenever required."
For the women it was argued that once appointed the women became employees under contracts of employment which obliged National Power to provide them with such guide work as might become available in the future, which in turn they were obliged to undertake when made available.
The Lord Chancellor's approach to this case was firstly to look at the legal construction of the correspondence dating from 1989. He said that the meaning and effect of that documentation was that there was no obligation on National Power to provide casual work, nor on the women to undertake it. "There would therefore be an absence of that irreducible minimum of mutual obligation necessary to create a contract of service."
Then he looked at what the parties said and did both at the time the letters were written and later. He emphasised that Mrs Carmichael was not available to work on 17 occasions and Mrs Leese on eight and that no suggestion of disciplining them arose. The Lord Chancellor therefore concluded that there was no intention either in 1989 or afterwards to have the relationship regulated by contract when the women were not working as guides. Although he stresses that when actually working, the women are employees.
Some casuals engaged on an 'as required' basis are required to do the work when it is provided and there is also an obligation on the employers to provide a certain amount of work. These casual workers are also likely to be employees.
But the Government must legislate soon to extend employers responsibilities to all "workers".