Letters of appointment do not always reflect reality and are sometimes couched in terms that are deliberately designed to disguise an employment relationship. As a recent decision of the Employment Appeal Tribunal (EAT) showed, however, their impact can be decisive if they are not proved to be a sham (Hafal Limited v Lane-Angell).
The case concerned a woman who worked for a charity that provided appropriate adults to assist those detained in police stations. She was initially taken on as a volunteer but later began to be paid for her work. Her letter of appointment stated that her engagement was on a 'bank basis', that there were no guaranteed hours and that the charity would use her services as and when required, and only if she were available.
The charity operated a 'three-strikes' rule, whereby it dispensed with the services of those who had given notice of their availability to work but who failed to answer telephone requests to do so on three occasions. After that rule was applied to her, the woman launched an unfair dismissal claim. Following a preliminary hearing, an Employment Tribunal (ET) found that she was an employee and so her claim could proceed.
In upholding the charity's challenge to that ruling, the EAT noted that the ET had paid little or no regard to the woman's letter of appointment. There was no evidence that it was a sham designed to create the impression of casual work where an employment relationship in fact existed. The woman acknowledged that she worked on a bank basis, her argument being that the position evolved over time to become something more formalised.
The woman had not been under an obligation to provide any or any minimum number of dates on which she would be able to work and the three-strikes rule, although in the nature of a sanction, was clearly only applicable to those who had expressed their availability to work but who could not be contacted. The mutuality of obligation required for an employment relationship was not present and the EAT substituted a decision that the woman was not an employee.
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