In Hafal Ltd v Lane-Angell, the EAT overturned the decision of an employment tribunal and held that a "bank worker" had no umbrella contract and so could not bring an unfair dismissal claim.
Ms Lane-Angell initially worked as a volunteer "Appropriate Adult" for Hafal Ltd, a charity working to support people with mental ill health. Within this role, she assisted people detained at police stations. After about a month, Ms Lane-Angell was offered a paid role as an Appropriate Adult. Her offer letter stated that the post had no guaranteed hours and that her engagement was on a "bank basis" stating that Hafal would use her services "as and when required" and "if you are available". In practice, this meant that bank staff had to email their availability for the upcoming month to Hafal. A rota would then be prepared in line with this availability. At times when the Appropriate Adult was on the rota, they could be called up and directed to attend a police station at a specific time.
In May 2015, Hafal wrote to bank staff setting out a new minimum availability requirement of 10 shifts per month. This was in response to its concerns about being able reliably to supply the demand for Appropriate Adults to attend police stations. Hafal also operated a "three strikes rules" which meant that bank staff could be taken off the rota if they failed to respond three times to a call. The claimant missed some calls at times when she was on the rota. She was not included on the rota for January 2016 and the charity explained that this was because she had not responded to a number of calls when she was on the rota. Hafal then wrote to the Claimant to inform her that she would no longer be offered Appropriate Adult work.
The Claimant brought a claim for unfair dismissal. The employment tribunal found that Ms Lane-Angell was an employee and that she had the requisite length of service to bring the claim. This was on the basis that there was mutuality of obligation during periods when Ms Lane-Angell was not on the rota and so there was an "umbrella" contract. In other words, there was an on-going obligation on the employer to provide work and on the claimant to accept work when offered.
The EAT disagreed and substituted its view that Ms Lane-Angell was not an employee of Hafal. It held that the tribunal had overlooked the evidence of the offer letter when considering the intentions of the parties as to the relationship between them. The EAT held that the terms of this letter were unambiguous and noted that there was no suggestion that these written terms were a "sham" and so the tribunal should have taken account of the offer letter when considering the contractual relationship. The EAT held that the letter indicated that there was no mutuality of obligation as the letter clearly showed that the claimant would only provide her services to them if she was available. The EAT also considered the reality of the way in which work was offered and accepted. It noted that the tribunal had made no factual finding that Ms Lane-Angell was obliged to be available for a minimum number of shifts at any time, and certainly not in the period before 1 May 2015.
The EAT also held that the tribunal was wrong to find that the three strikes rule meant that there was an overarching obligation on the claimant to accept work. The EAT pointed out that this rule applied only after someone had provided their availability and been placed on the rota. It did not apply in unrostered periods.
As the claimant's claim required a finding that she was an employee prior to May 2015, the EAT did not make a clear ruling on whether a requirement to provide a minimum availability of 10 shifts per month would have been sufficient to create the necessary mutuality of obligation for a contract of employment to exist. Organisations should be aware that there is a risk that contracts which impose some obligation on the worker to carry out a minimum amount of work may be found to be employment contracts.
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