O'Kelly v Trusthouse Forte plc
Regular casual waiters were not employees, because there was no obligation on the employer to provide work or on the waiters to accept it, even though they worked regularly.
Facts
Mr O'Kelly and other waiters worked as regular casuals at a hotel, doing banqueting work. They were given preference over other casuals when work was available, and in practice they worked most weeks, but they were free to refuse work, and the hotel was not obliged to offer them any. They were dismissed after they joined a trade union, and they claimed unfair dismissal. The tribunal held that they were not employees, so they could not claim.
Legal principle
The Court of Appeal upheld the tribunal's decision. Sir John Donaldson MR said that the question of whether a person is employed under a contract of employment is a question of mixed fact and law, and that an appellate court should not interfere with the tribunal's conclusion unless it had misdirected itself in law. The tribunal had been entitled to find that there was no mutuality of obligation, because the waiters were free to refuse work and the hotel was free not to offer it, and this was fatal to an overall contract of employment, despite their regular working pattern.
Related cases on employment status
- Autoclenz Ltd v Belcher [2011] UKSC 41, [2011] ICR 1157
- Barclays Bank plc v Various Claimants [2020] UKSC 13, [2020] AC 973
- Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32, [2014] 1 WLR 2047
- Carmichael v National Power plc [1999] 1 WLR 2042
- Express and Echo Publications Ltd v Tanton [1999] ICR 693
- Independent Workers' Union of Great Britain v Central Arbitration Committee [2023] UKSC 43
- James v Greenwich London Borough Council [2008] EWCA Civ 35, [2008] ICR 545
- James v Redcats (Brands) Ltd [2007] ICR 1006
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