CONTINUOUS EMPLOYMENT

Cornwall County Council v Prater: [2006] EWCA Civ 102

CA: Mummery, Longmore LJJ and Lewison J: 24 February 2006

The claimant was engaged by the appellant council between 1988 and 1998 as a home tutor to teach children individually who were unable to attend school. The number of hours of tuition for each engagement varied, and the duration varied from a few months to several years. Though not obliged to accept a particular engagement, the claimant had to fulfil her commitment to the particular pupil once taken on and she never refused any engagement offered by the council. The claimant was paid in arrears and because of school holidays in August she generally received no payment in September. She received no holiday pay, sick pay or pay for time spent travelling to and from pupils' homes. At the end of the each financial year the claimant received a P60 form. The nature of the relationship between the parties changed after 1998 when the claimant became an employee of the council under a contract of employment. On the claimant's claim for a declaration of written particulars of her employment, to establish that she was an employee of the council in the period 1988–1998 under a contract of service, the employment tribunal found that there was mutuality of obligation between the council and the claimant sufficient to create a contract of service, and that any periods between the engagements when the claimant was not teaching a pupil for the council were abridged by the provisions of section 212(3) of the Employment Rights Act 1996. The Employment Appeal Tribunal dismissed the council's appeal.

The council appealed.

The Court of Appeal held:
Once each individual contract was entered into and continued, the claimant was obliged to teach the particular pupil made available to her and the council was obliged to pay her for teaching that pupil, and that was sufficient mutuality of obligation, relating to the work provided and performed under the contract, to establish that each teaching engagement was a contract of service. If the claimant had been engaged to teach pupils in a class collectively or individually at a school under a single continuous contract, she would clearly have been employed under a contract of service, and it made no difference to the position at law that she was engaged to teach pupils individually out of school under a series of separate concurrent or successive contracts. The employment tribunal had, therefore, been entitled to find that the periods when the claimant was not working were temporary cessations of work within section 212(3) of the Employment Rights Act 1996 and that, accordingly, the claimant was to be regarded as an employee of the council continuously during the relevant period.

The appeal was dismissed.

Appearances: Adam Heppinstall (Solicitor, Cornwall County Council, Truro) for the council; Rohan Pirani (Graham Clayton, Exeter) for the claimant.