Definition of employee

Case 1: The facts

Dr Kettle applied for the position of orthodontic practitioner, which was advertised as a salaried position within a Ministry of Defence (MoD) clinic with nursing and support staff. After accepting the post, she was given a contract that referred to her as a "contractor" and made provision for subcontracting. Kettle queried this as being inappropriate for her situation, but signed it after being assured that it was standard.

When Kettle later brought a tribunal claim, the Employment Appeal Tribunal (EAT) was asked to decide whether she was an "employee", and what evidence could be taken into account when deciding that question.

The ruling

The EAT said the tribunal had been entitled to consider evidence beyond what was written in the contract, as this was a case where the parties did not intend all the terms and conditions to be contained in a written document. The contract did not reflect what had been agreed, and was inappropriate for the job Kettle had applied for; the MoD plainly envisaged her doing the work personally, and she would not have been in a position to send in replacements.

The tribunal was entitled to look at the overall picture and conclude that Kettle was an MoD employee.

Ministry of Defence HQ Defence Dental Service v Kettle UKEAT/0308/06

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