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The case of Drake v Ipsos Mori UK Limited [2012] UKEAT/0604/11
concerned the issue of employment status.
The Claimant, Mr Drake, worked as an market researcher for Ipsos
Mori under a series of assignments. It was agreed at the
outset that there was no obligation on him to accept any
assignments and no obligation on Ipsos to provide him with
any. He was also told that he was not an employee. However,
it was understood that once he had accepted an assignment, it was
considered to be a "verbal contract" which he had to
complete within a certain deadline.
In 2010, Ipsos decided to remove Mr Drake from its panel of
researchers. Mr Drake claimed that he was an employee and
brought a claim of unfair dismissal.
Initially, the Tribunal held that the relationship lacked the
necessary mutuality of obligation for there to be a contract of
employment and rejected Mr Drake's claim. However, the
Employment Appeal Tribunal disagreed. It concluded that mutuality
of obligation arises between two parties where work is accepted and
the obligation to pay arises. Accordingly, there was
mutuality of obligation in place whilst each assignment was
continuing.
However, the EAT confirmed that mutuality alone does not create
an employment relationship and it sent the case back to the
Tribunal for the other relevant factors to be considered.
Comment: It is interesting that mutuality of
obligation can still exist even where a relationship can be
terminated at will by either party. However, other factors, such as
personal service and control will still be required for a contract
to be one of employment.
This case is a useful reminder that establishing employment
status is not a clear cut issue and, where employers rely on
umbrella contracts, there is a risk that the employment
relationship will deemed to continue between assignments, allowing
casual workers to build up lengthy periods of continuous
service.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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