Factual and Procedural Background
The parties to these proceedings in the London (Central) Employment Tribunal were the Plaintiff, a staff reporter employed by the Defendant, a subsidiary of a well-known American broadcaster. The Plaintiff had been employed since 1993, initially as a foreign correspondent covering war zones, which involved dangerous assignments. From 1997, the Plaintiff declined such war zone assignments due to safety concerns and family reasons. In 2002, the Plaintiff agreed to a fixed-term freelance contract with the Defendant, guaranteeing a minimum of 100 days work annually at a set daily rate, which was renewed in 2003. Despite this, the Plaintiff continued to decline war zone assignments. In 2004, the Defendant decided not to renew the Plaintiff's contract, citing budget cuts and the need for correspondents willing to cover war zones. The Plaintiff brought a claim alleging unfair dismissal.
The Employment Tribunal initially found the dismissal to be automatically unfair under certain provisions of the Employment Rights Act 1996 (ERA), but also found in favor of the Defendant on other grounds, including the Plaintiff’s lack of sufficient continuous employment for an ordinary unfair dismissal claim. Both parties appealed: the Defendant appealed the automatic unfair dismissal finding, and the Plaintiff cross-appealed the continuity of employment finding.
Legal Issues Presented
- Whether the Plaintiff was automatically unfairly dismissed by the Defendant for a reason falling within Section 100(1)(c) and/or Section 105(3) ERA, as found by the Employment Tribunal.
- If not, whether the dismissal was unfair under Section 100(1)(d) or (e) ERA.
- If not, whether the Plaintiff had sufficient continuous employment to pursue a claim of ordinary unfair dismissal under Section 98 ERA.
Arguments of the Parties
Defendant's Arguments
- The Defendant contended that the contracts from 2002 and 2003 were framework agreements rather than contracts of employment, with no mutuality of obligation during periods without assignments.
- The Defendant argued that the Plaintiff was not automatically unfairly dismissed under Section 100(1)(c) ERA because the dismissal was due to refusal to go to war zones, not because the Plaintiff raised health and safety concerns.
- On the issue of continuous employment, the Defendant accepted continuity until 2002 but denied it thereafter due to the nature of the contracts.
Plaintiff's Arguments
- The Plaintiff argued there was an overarching or global employment contract with mutuality of obligation.
- Alternatively, the Plaintiff relied on statutory provisions (Section 212(3)(b) and (c) ERA) to preserve continuity of employment during gaps.
- The Plaintiff contended that dismissal was automatically unfair under Section 100(1)(c) ERA because he had raised health and safety concerns related to war zone assignments.
- On cross-appeal, the Plaintiff argued that the ever-present danger in war zones constituted serious and imminent danger under Sections 100(1)(d) or (e) ERA.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Carmichael v National Power [2000] IRLR 43 |
Established that mutuality of obligation is the irreducible minimum to create a contract of service. |
Used to assess whether the 2002 and 2003 contracts contained sufficient mutuality of obligation to be contracts of employment. |
| Nethermere v Gardiner [1984] IRLR 240 |
Clarified the necessity of mutual obligations for contracts of employment. |
Referenced in relation to the mutuality of obligation test. |
| Clark v Oxfordshire Health Authority [1998] IRLR 125 |
Addressed mutuality of obligation in employment contracts. |
Supported analysis of whether contracts were contracts of employment. |
| Stevedoring & Haulage Services Ltd v Fuller [2001] IRLR 627 (CA) |
Confirmed that express terms negating mutuality of obligation prevent continuity of employment. |
Distinguished from the present case where mutuality was found. |
| McLeod v Hellyer Brothers [1987] ICR 526 |
Held that successive contracts linked to voyages could not be joined for continuity. |
Distinguished on facts from the present case. |
| Cornwall County Council v Prater [2006] ICR 731 (CA) |
Confirmed that continuity of employment can be preserved under Section 212(3)(b) ERA when separate contracts exist. |
Contrasted with the present case where the Plaintiff relied on an overarching contract. |
| Stephenson v Delphi Diesel Systems Ltd [2003] ICR 471 |
Emphasized that mutuality of obligation determines whether a contract exists at all. |
Supported the court’s view on contract existence. |
Court's Reasoning and Analysis
The court first examined whether the Plaintiff’s 2002 and 2003 contracts constituted contracts of employment by applying the established legal principle that mutuality of obligation is essential. The Employment Tribunal had found no mutuality due to the Plaintiff’s freedom to refuse assignments. However, the court concluded that the contracts did contain the irreducible minimum mutuality because the Defendant was obliged to provide a minimum of 100 days work or pay, and the Plaintiff was obliged to act in good faith in accepting assignments. Additional factors such as the Defendant’s control over the Plaintiff’s work and restrictions on working for competitors supported the conclusion that these were contracts of employment.
On the issue of automatic unfair dismissal under Section 100(1)(c) ERA, the court held that this provision protects employees who raise health and safety concerns by reasonable means. The Employment Tribunal had conflated the Plaintiff’s refusal to work in war zones with raising health and safety issues. The court clarified that the principal reason for dismissal was the Plaintiff’s refusal to accept war zone assignments, not because he had raised health and safety concerns. Therefore, the dismissal did not fall within the scope of Section 100(1)(c).
The court further considered Sections 100(1)(d) and (e), which relate to dismissal for leaving or refusing to return to work due to serious and imminent danger. The Plaintiff argued that the danger was imminent given the nature of war zones. However, the court found that the Plaintiff was under no contractual obligation to enter war zones and was based in London, thus not in imminent danger. Consequently, these provisions did not apply.
Finally, the court found that the Plaintiff had sufficient continuous employment for the purposes of ordinary unfair dismissal under Section 98 ERA, overturning the Employment Tribunal’s earlier finding on continuity.
Holding and Implications
The court ALLOWED the Defendant's appeal against the finding of automatic unfair dismissal under Section 100(1)(c) ERA, setting aside that part of the Employment Tribunal’s decision.
The court ALLOWED the Plaintiff’s cross-appeal on the issue of continuity of employment, declaring that the Plaintiff had the necessary continuous employment to bring a claim of ordinary unfair dismissal under Section 98 ERA.
The Plaintiff’s cross-appeal on the application of Sections 100(1)(d) and (e) was DISMISSED.
As a result, the Plaintiff may pursue a claim of ordinary unfair dismissal, and the matter was remitted to the Employment Tribunal to determine whether the dismissal was fair or unfair under Section 98 ERA. No new precedent was established beyond the direct effect on the parties, and the case was to be further considered on liability and compensation.