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O’Kelly v Trusthouse Forte Ltd

[1983] ICR 728

Case summary last updated at 20/02/2020 18:34 by the Oxbridge Notes in-house law team.

Judgement for the case O’Kelly v Trusthouse Forte Ltd

Some waiters were engaged by a hotel on the zero hours basis (hotel didn’t have to offer work and waiters didn’t have to take it). Two tried to form a union and were sacked. They (Ps) argued that trade union legislation prevented them from being sacked for organising a union. The legislation only related to employees. Ps were paid weekly, had their uniforms and equipment provided by hotel, disciplinary procedures were in place, and holiday pay was available. CA held that the waiters were not employees and therefore not entitled to the legislative protection. 
 
Sir John Donaldson MR: They did not, technically, have to turn up to work for a shift,
and they could be sacked at any time, so that the contract lacked "mutuality of obligation" and could not be described as one between an "employee" and "employer". He therefore concluded that the waiters were in business on their own account. 

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