Employment Law – Contract of Service – Interpretation of Written Particulars

In the recent case of Kettle v Ministry of Defence [2007] concerned the written particulars of a contract of service. The claimant in the case was an experienced dental and orthodontic specialist. In December of 2000, she responded to an advertisement which was posted in the British Dental Journal by the employer.

The advertisement sought a ‘part-time civilian orthodontic specialist practitioner’ required to work for up to six sessions per week. The position was salaried, and the work was to be performed at dental practices owned and operated by the employer. The claimant was interviewed for the position, and was later informed that her application had been successful. On the 25th of January 2001, she was sent a number of documents. The documents included an invitation to tender, and a form of contract.

She duly signed and returned the invitation to tender, and on the 23rd of February, the employer sent her a form of contract for the provision of ‘consultant orthodontic services’. The claimant, who became concerned that the documentation did not accurately reflect her situation, explained her concerns to the employer. She was informed that the contract was simply the standard form documentation required by the employer. It was explained to her that every employee in her capacity received the same document.

On that basis, she therefore duly signed and returned the contract. The contract referred to the claimant as ‘the contractor’, and provided the following:

§ A right for the claimant to engage sub-contractors to fulfil her obligations;

§ An obligation upon the claimant to provide and maintain an organisation capable of fulfilling her duties under the contract; and

§ That the claimant was to indemnify the employer against any actions arising from the negligence of the claimant or that of her subcontractors.

The claimant began to work for the employer, operating six sessions per week at the employer’s clinics as required. The employer provided her with patients and a uniform to wear, although she paid her own income tax and national insurance contributions. On the 22nd of June 2005, the claimant’s work was terminated abruptly.

Following the presentation of a complaint before the employment tribunal by the claimant, an issue arose as to whether she had in fact been an employee of the employer at all. The employer alleged that she had been categorised as a contractor. Eventually, the tribunal concluded that she had been an employee. In reaching that conclusion, the tribunal examined the facts and circumstances surrounding the contract between the claimant and the employer, including the following:

§ The terms of the original advertisement;

§ The provision of equipment and a uniform;

§ The provision of patient lists; and

§ The fact that the employee was responsible to a higher authority within the employer.

The employer appealed against the initial employment tribunal decision.

The employer submitted that the tribunal had erred in looking outside of the four corners of the contract. It was submitted that having examined the surrounding factors and circumstances of contract, the tribunal’s conclusions on the issue of whether the claimant had been an employee were perverse. The appeal was dismissed by the Employment Appeals Tribunal (“EAT”):-

§ Where an employment tribunal found that it had not been the intention of the parties that all the terms of their contract should be contained in the contractual documentation, the tribunal was entitled to consider the surrounding facts and circumstances to try to determine whether the relationship between the parties had been that of employer and employee

§ In this case, the tribunal had not expressly concluded that the parties had not intended that all the terms of their contract should be contained within the contractual documentation. Despite that fact, it was held that that omission had not been fatal to its conclusions.

§ Therefore, it was right to consider the surrounding facts and circumstances.

Secondly, in assessing the surrounding facts and circumstances, the tribunal had not taken into account any irrelevant factors and had addressed all relevant factors. The EAT held that the relevant factors for consideration included:

§ The fact that the claimant was responsible to a higher authority within the employer;

§ The fact that the claimant was responsible for the payment of her own tax and national assistance;

§ The terms of the original advertisement;

§ The fact that the claimant was interviewed for the position; and

§ The fact that the employer gave the claimant reassurances in relation to the initial concerns she raised regarding the contractual documentation.

In those circumstances, it was held that the tribunal’s conclusions had not been perverse.

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© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.