Cornwall CC v Prater [2006] EWCA Civ 102 (CA)

• (NB s.212 case) Plaintiff was in a ‘bank’ of tutors that Cornwall CC used when needed. It was a zero-hour agreement, but when Plaintiff agreed to take on an assignment she had to see it through to the end, even though nobody knew how long this would take. No right of substitution but no close level of control.

• In practice Plaintiff had taken on all work offered to her over the ten years.

• CA held that each teaching engagement was a contract of service, and that it made no difference in law that the employment took place under a series of separate concurrent or successive contracts rather than one ‘global’ contract (important here because under s.213 ERA 1996 the gaps between periods of employment were potentially ‘temporary cessations of employment’ meaning she was an employee for the whole period).

Lewison LJ

• ‘Mutuality of obligation’ is not the test of whether a contract of service exists (!!!) but whether any type of contract exists at all. Doesn’t explain this, unfortunately. 

Longmore LJ

the county council would pay Plaintiff for the work which she in turn agreed to do by way of giving tuition to the pupil …That to my mind is sufficient ‘mutuality of obligation’ to render the contract a contract of employment if other appropriate indications of such an employment contract are present.

• He didn’t expand on what these “other appropriate indications” are.