Published: 11 November 2020
Swain v. Mercedes Benz South West  UKET 14018998
The claimant (Mr Swain) was not an employee of the respondent (Mercedes Benz South West “MBSW”). The complaint of unfair dismissal was dismissed and the judgement considered ‘mutuality of obligations’.
This was a preliminary hearing to decide on Mr Swain’s employment status. Mr Swain claimed that he was an employee of MBSW and that he had been unfairly dismissed. He worked as a driver, for approximately 10 years, delivering cars as required to customers around the country.
Employment Judge Fowell began by citing what the “irreducible minimum for a contract of employment to exist” was under Ready Mixed Concrete. He identified that the main element of relevance in this case was the question of mutuality of obligations. MBSW accept that there was an obligation on the part of Mr Swain to carry out his work personally, but they say that there was little control over him and no mutuality of obligation.
No mutuality of obligations
The Judge’s essential conclusion was that there were no mutuality of obligations. Mr Swain, who was representing himself, accepted that “there were an immense number of days each year when they [the company] were not under an obligation to give him work”. Although there was no signed contract, MBSW were operating squarely within the terms of the casual worker contract. Work was offered and drivers were free to accept or decline the work.
“The fact that it went on for many years does not suggest that it was any sort of sham, or even that a fixed pattern had developed which was more akin to an employment relationship.”Employment Judge Fowell
Supporting case law
The Judge referenced Hellyer Brothers Ltd v McLeod and ors; Boston Deep Sea Fisheries Ltd v Wilson and anor  ICR 526, CA. These cases concerned a number of trawler men, many of whom had worked for the same employer for the whole of their working lives. When the employer decommissioned all of its trawlers, the trawler men subsequently claimed redundancy.
The Court of Appeal held that the men had never placed themselves under a legally binding obligation to make themselves available for work in between crew agreements or to refrain from seeking or accepting employment from another trawler owner during such periods. Nor was there a continuing obligation on the employer to offer work to any of them.
O’Kelly and ors v Trusthouse Forte plc  ICR 728 CA was also cited. In this case the workers, nine wine butlers, had the right to decide whether or not to accept work and were free to obtain work elsewhere. The fact that it would not have been in their interests to do so was another matter. The Court concluded that the workers were hired under successive contracts for services.