Mutuality of obligation

Case 4: The facts

Social care worker Fiona Thomson was on the "bank" staff of a local council; the council was not obliged to provide her with work, and she did not have to accept any work that she was offered. She worked on a temporary contract for more than 18 months, covering for a worker on long-term sick leave, but reverted to the bank when that finished.

While in the bank, Thomson was offered the opportunity to join the council's pension scheme and had received statutory sick pay (SSP). She argued that this indicated she was an employee when she brought a claim for constructive dismissal.

The ruling

Although it was possible to see the payment of SSP as an indication that the council had some obligation towards Thomson, the Employment Appeal Tribunal said that this was not enough.

For there to be a contract of employment, there must be mutuality of obligation - an obligation on both sides. It was absent in this case, so Thompson was not an employee.

Thomson v Fife Council EATS/0064/04