Many employment law rights are only available to those who are employees. In the case of Ministry of Defence (MOD) v Kettle, the Employment Appeal Tribunal (EAT) examined the issue as to when, in determining whether a person is an employee or not, an Employment Tribunal (ET) can look outside the contractual document. Can it do so only if it finds the document to be a sham or if it finds a subsequent variation to the contract?
Dr Kettle was an experienced dental/orthodontic specialist. She saw an advertisement for a part-time civilian orthodontic specialist practitioner with the MOD. The position was described as ‘a salaried position in a large, well run, friendly clinic’, working with trained staff. Dr Kettle successfully applied for the job and received documentation including an invitation to treat and a contract for the provision of consultant orthodontic services. She told the MOD that she considered the documentation inappropriate as it apparently envisaged the award of a contract to a subcontractor running its own organisation. She made it clear that she would not be able to find replacements if she were unable to work. However, she was assured that it was normal MOD documentation and so she signed the contract. She paid her own tax and national insurance but she did have to complete time sheets. The MOD provided her with a uniform and organised cover if she was unavailable for work.
When Dr Kettle’s contract was terminated she commenced proceedings against the MOD and the ET had to consider, as a preliminary issue, whether or not she was technically an employee.
The ET decided that Dr Kettle was an employee. In reaching its decision, it had taken into consideration not only the contractual documentation but all the circumstances, including the respective parties’ conduct and the job advertisement.
The MOD appealed against this finding, arguing that the ET had erred in law in looking beyond the terms of the contractual documents to determine Dr Kettle’s employment status. The MOD argued that the ET could only look outside the contract wording if it found the document to be a sham
or if it found that there was a subsequent variation to the contract.
The issue to be decided by the EAT, therefore, was whether the ET should have confined itself to the contractual documentation.
The EAT found that the following propositions could be gleaned from the decision of the House of Lords in the case of Carmichael v National Power (the leading authority on this issue):
- at the outset, the ET should ask whether or not the parties intended the contractual documentation to be the exclusive record of the terms of agreement? This is a question of fact;
- if the answer to that question was yes, then the ET was generally restricted to considering this documentation. If the answer was no, then the ET could consider wider matters, including oral exchanges, the job advertisement and the parties’ conduct.
In view of all the circumstances, particularly the finding that the documentation did not match the job description and the nature of the work performed by Dr Kettle, the ET was entitled to look outside the contractual documents. The conclusion that Dr Kettle was an MOD employee was justified and the MOD’s appeal was therefore dismissed.