Hafal Ltd v. Lane-Angell, Court of Appeal - United Kingdom Employment Appeal Tribunal, June 08, 2018, [2018] UKEAT 0107_17_0806

Resolution Date:June 08, 2018
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Hafal Ltd v. Lane-Angell
 
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Copyright 2018

Appeal No. UKEAT/0107/17/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 31 October 2017

Judgment handed down on 8 June 2018

Before

THE HONOURABLE MR JUSTICE CHOUDHURY

(SITTING ALONE)

HAFAL LTD APPELLANT

MISS K LANE-ANGELL RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0107/17/JOJ

APPEARANCES

UKEAT/0107/17/JOJ

SUMMARY

CONTRACT OF EMPLOYMENT - Whether established

JURISDICTIONAL POINTS - Worker, employee or neither

The Tribunal erred in concluding that there was an overarching contract so as to give rise to an employment contract. The terms of appointment, which were not properly taken into account, provided that there was no obligation to provide or accept work, and the other features of the relationship were not inconsistent with those terms. Accordingly, the Claimant was not an employee of the Respondent.

UKEAT/0107/17/JOJ

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THE HONOURABLE MR JUSTICE CHOUDHURY

Introduction

  1. This is an appeal against a finding by the Cardiff Employment Tribunal (``the Tribunal'') that the Claimant was an employee of the Respondent. The engagement of the Claimant was described as being on a ``bank basis'' with no guaranteed hours of work. The main issue before the Tribunal was whether the nature of the engagement was such that there was sufficient or any ``mutuality of obligation'' to create a contract of employment.

    Factual Background

  2. The Respondent is a registered charity. Part of its function is to support people with, or recovering from, mental ill health. The Respondent runs a scheme which enables appropriately trained adults (``Appropriate Adults'' or ``AAs'') to be available to assist persons detained at police stations where such persons are in need of support.

  3. The Claimant's relationship with the Respondent commenced in November 2012 when she applied for the position of volunteer AA. On 14 February 2013, the Respondent sent the Claimant a letter confirming her appointment as an unpaid volunteer AA on a ``bank basis''. The letter stated:

    ``... This role is unpaid and has no guaranteed hours, engagement is on a `bank basis' i.e. your details will be placed on Hafal's database and we will use your services as and when they are required if you are available.''

  4. It was also stated that, ``There are no guaranteed hours or payment for this role''.

  5. This volunteer status did not continue for long. It appears that after completing various shadowing opportunities in order to familiarise herself with the AA role, the Claimant had shown herself to be available and willing to attend police stations as and when required. The police stations to which support was provided under the Respondent's various contracts covered a large geographical area in Wales, and it was not easy to find persons who could provide the requested cover. And so, on 20 March 2013, the Respondent wrote a further letter to the Claimant appointing her to the role of AA, this time without any reference to volunteer status. This letter of appointment stated as follows:

    ``I am pleased to confirm that your vetting has been successful and I am therefore able to offer you the position of Appropriate Adult. This post has no guaranteed hours and engagement is on a `bank basis' i.e. that your details will be placed on Hafal's database and we will use your services as and when they are required and if you are available.''

  6. The letter of appointment continued by setting out various ``terms and conditions''. These included the rates of payment for callouts, holiday entitlement, places of work, and subsistence and mileage rates. It also stated that:

    ``There are no guaranteed hours within the service and paid Appropriate Adults do not qualify for paid sick leave or company pension provisions.''

  7. The Tribunal found that this change from volunteer to paid status was a significant change. Indeed it was, for the Claimant was now being paid for the work that she did, and no doubt that provided an added incentive to do more work than would have been the case had she remained a volunteer. However, that in itself did not mean that she thereby became an employee.

  8. The way in which work was allocated to AAs was described by the Tribunal as follows:

    ``4.8. The way in which the Appropriate Adult Scheme works is that Appropriate Adults email their availability to the respondents to allow and assist in the respondents preparing a rota system. The rota is divided into four shifts per day; the first shift from 7am and the last shift overnight from 10pm to 7am. In addition the rota is subdivided between seven police stations which access the Appropriate Adult Service. ... the call handler for the respondents telephones an Appropriate Adult and directs him/her to attend the specific police station at a specific time. Then the Appropriate Adult contacts the custody sergeant at the station by telephone to agree the exact time that they will be in attendance at the police station. The respondents have requirements for Appropriate Adults to attend the police stations within the minimum set time of receiving a callout. ...

    4.9. As an Appropriate Adult the claimant had to wait for a telephone call requesting attendance at a police station. The claimant had no authority to phone the police direct. If the claimant attended as an Appropriate Adult, that she was entitled to make a claim for expenses such as mileage and payment was at an hourly rate for the time in attendance.''

  9. The Tribunal also found that the Claimant's earnings fluctuated from month to month, and that she undertook other fixed term engagements for the Respondent which lasted for a few months or weeks. Several of the AAs engaged by the Respondent had other jobs and the Claimant was not unusual in that regard. However, these other engagements were not considered by the Tribunal to have a bearing on whether or not the engagement as an AA was a relationship of employment. The Tribunal was correct to take that approach.

  10. In the course of 2015, the Respondent began to have concerns about the level of availability being offered by AAs. On 15 April 2015, Ms Lianne Martynski, the Respondent's Criminal Justice and Staff Development Team Lead, wrote an email addressed, it appears, to all the AAs. Ms Martynski expressed concern about the state of the rotas and the fact that call handlers were finding it difficult to locate AAs to attend at police stations. In order to address this difficulty, Ms Martynski said as follows:

    ``Moving forward, we have to ensure that we are never again in this position and new systems, particularly around the training and recruitment of new AA's, will be put in place. There will also be changes to the existing service around minimum availabilities required, we will continue to remain flexible and fair and will be more than happy to discuss alternative arrangements if required.

    From the 1st May onwards all paid Appropriate Adults will be required to give a minimum availability of 10 shifts per month, 2 of these must be on the weekend, similarly, all volunteers will be required to give a minimum of 5 shifts per month. This is not an unreasonable request and some of you already provide us with far more availability each month. As I have already said, we will be flexible and take into account personal circumstances and holidays etc.

    In the meantime, I would very much appreciate it if you could all check your diaries and let me know any availabilities that you may have. ...''

  11. One of the jobs which the Claimant undertook, other than her role as an AA, was for Advocacy Support Cymru. This job involved a substantial commitment of 4 days' work a week. This obviously had a knock-on effect on her availability to be on the Respondent's rota. The Tribunal heard evidence from Ms Martynski that there were times when the Claimant had missed calls when she was on the rota. The Claimant took issue with the suggestion she had missed calls. However, there does appear to be some documentary evidence that calls were missed on occasion. It appears that the call handlers would attempt to call those who were on the rota, and, if they failed to make contact, they would simply move down to the next person whose name appears on the rota. The Respondent did operate what has been described as the ``3 strikes and off'' rule (``the 3-strikes rule''). This rule meant that if an AA did not respond to a call-out request on 3 occasions they may be taken off the rota. It is not clear from the Tribunal's findings whether the 3-strikes rule applied to 3 successive requests or to any 3 requests made during a period of availability.

  12. In December 2015, it appeared to the Claimant that she had been taken off the rota for no good reason. She wrote to Ms Martynski on 30 December 2015 to say that she seems to have been missed off the January rotas and asked to be added to them. Ms Kay Davies, one of the Respondent's managers, responded to the Claimant on 5 January 2016 and said as follows:

    ``With regards to your inclusion on the rota we have noticed there has been a number of times you have given availability but not answered your phone when called. This was one of the issues that was on the agenda for the 2 AA meetings held in December. It was agreed at those meetings that anyone who had missed 3 calls would be contacted before being placed back onto the rota.''

  13. Ms Martynski wrote to the Claimant on 11 January 2016 to say that there has always been the 3-strikes rule but that it has not always been managed properly. However, she said that with Ms Davies now in post this is no longer the case and a number of AAs have already been contacted about this kind of behaviour, some of whom are already back on the rotas. Then on 14 January 2016, the Claimant was informed that she would no longer be offered any further AA work. The Claimant regarded that as her dismissal and indeed referred to that as her date of...

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