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Mr Drake carried out work as an interviewer for IPSOS MORI under
a series of ad hoc assignments. When the relationship ended, Mr
Drake claimed unfair dismissal on the basis that he was an
employee.
The Tribunal found that the relationship between Mr Drake and
IPSOS MORI lacked the necessary mutuality of obligation for there
to be a contract of employment and rejected his claim.
The EAT disagreed and held that there was sufficient mutuality
of obligation for there to be a contract in place when Mr Drake was
actually working on each assignment in return for pay. The EAT
found that Mr Drake had been obliged to work personally for IPSOS
MORI until he returned or completed the assignment or the company
withdrew it.
The EAT confirmed that further findings were needed in relation
to the level of control IPSOS MORI had over Mr Drake's work and
whether the other terms of his contract were consistent with it
being one of employment. It sent the case back to the Tribunal for
these issues to be considered.
Implications
The key principle set out in this decision is that mutuality of
obligation can exist even where the relationship can be terminated
at will at any time. However, other factors, such as control
and an obligation to provide personal service, will also be
required for the contract to be one of employment.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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