Employee status

Case 3: The facts

Mrs Kendal and her colleagues worked as scallop-cutters, a job in which the amount of work varied from day to day and week to week. The employer would leave a message on an answerphone, which the workers could phone to find out whether there was work available for the following day; they could then decide whether or not they wanted to do it.

The factory closed and the workers lost their jobs. They subsequently brought claims including unfair dismissal and redundancy, which meant they had to show that they were employees.

The ruling

The Employment Appeal Tribunal rejected the argument that Kendal and her colleagues had been continuously employed on a series of contracts of employment, each lasting for a day. There had been no mutuality of obligation, it said, because they had not been obliged to accept work that was available. Therefore they had not been employed under a contract of service.

Kendal & others v Caley Fisheries UKEAT/0507/04