A Kemp (sitting alone) Mr B Cochrane v Inspire (partnership Through Life) — 2019

This preliminary hearing at Aberdeen on 7 March 2019 concerned whether Mr B Cochrane was an employee for the purposes of a section 103A Employment Rights Act 1996 claim. The respondents accepted that he was a worker and therefore could pursue detriment claims under the Act, but they disputed that he was an employee.

The tribunal found that the online advertisement, the provisional offer letter dated 17 May 2018, and the later Relief Worker Agreement dated 13 June 2018 all used language referring to employment and an employee. It also noted that the induction materials included disciplinary and grievance procedures written in employee terms, and accepted that this could reasonably have caused confusion about the claimant's status.

However, the tribunal accepted the respondents' evidence about how relief work operated in practice. Relief workers were placed on a register, shifts were only offered if required after full-time and part-time staffing needs had been covered, and there was no obligation on either side to offer or accept work. The tribunal rejected the claimant's case that the contractual wording was a sham or that there was an implied term requiring him to work offered shifts, and held that the express lack of mutuality of obligation in the Relief Worker Agreement was decisive.

Applying section 230 ERA 1996 and the Ready Mixed Concrete approach, together with the mutuality of obligation analysis discussed in Carmichael, the tribunal concluded that Mr Cochrane was not an employee. His section 103A claim was therefore dismissed. The tribunal added that the wording used by the respondents was likely to cause confusion and that they were in a position to remedy that confusion, but that did not alter the status conclusion.