Nethermere (St Neots) Ltd v Gardiner

Home workers who had regularly done work for a company over a period of years could be employees, because a course of dealing could give rise to mutual obligations.

Citation
[1984] ICR 612
Court
Court of Appeal (Civil Division)
Year
1984
Subject
Employment Law
Topic
Employment status

Facts

Mrs Gardiner and Mrs Taverna worked at home, sewing pockets on trousers for a clothing company, using machines provided by the company. They worked whatever hours they chose, and could decide how much work to take on, but they had done the work regularly for a period of years, and the company regularly supplied them with work. When they were dismissed, they claimed unfair dismissal, and the question was whether they were employees.

Legal principle

The Court of Appeal held, by a majority, that the tribunal had been entitled to find that they were employees. Stephenson LJ said that there must be an irreducible minimum of obligation on each side to create a contract of service, but that a regular course of dealing over a long period could harden into an enforceable contract, with an obligation on the company to provide work and on the home workers to do it. The tribunal had been entitled to find that this had happened. The case is often contrasted with Carmichael v National Power.

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