MacFarlane v Glasgow City Council 2001?

Answer 1

Point at issueMrs MacFarlane ("Mrs F") and Mrs Skivington ("Mrs S") had previously worked as gymnastic instructors for Glasgow City Council (the "Council") on a casual basis when in 1992 the Council attempted to regularise the relationship by sending them a document setting out their terms of engagement. Both declined to sign the document. In 1998, Mrs M and Mrs S claimed unfair dismissal.

The preliminary matter was whether they had been engaged under contracts of service or contracts for service.

FactsSome of the facts found by the Employment Tribunal included the following:

• the Council, in conjunction with the sports governing body, specified the courses which were to be taught
• it provided the venue, equipment and support staff to set up the equipment
• Mrs M and Mrs F were required to wear uniforms provided by the Council
• the council monitored their work
• timesheets were completed and payment was made on the basis of the number of hours worked
• Mrs M and Mrs S were required to have their own public liability insurance
• there was no entitlement to sick pay, holiday pay or pensions.

DecisionThe Employment Tribunal found that they were not employees and hence their claim to unfair dismissal failed. Appeals were lodged and the cases then came before the EAT. The appeals were allowed and the cases were remitted to the original tribunal. CommentaryThe most important factor in the Employment Tribunal's eyes was that, if Mrs M and Mrs S were unable to attend work, the normal practice was that they would arrange for a substitute from the register of coaches maintained by the Council to cover their classes. Occasionally, the Council would organise a replacement. The Employment Tribunal placed great emphasis on the decision in the case of Express and Echo Publications Ltd v Tanton (see ESM7210) and felt that, as Mrs M and Mrs S could arrange for substitutes to attend on their behalf, this was inconsistent with a contract of service.

The EAT concluded that the relevant clause in the Express & Echo case was extreme and it was distinguishable from this case for four cumulative reasons

• Mrs M and Mrs S could not choose not to attend or not to work in person
• they could not provide anyone but only someone from the Council register
• the Council sometimes organised the replacement
• the Council did not pay Mrs M/Mrs S but instead paid the substitute direct.

This case is support for the view that the decision in Express and Echo Publications Ltd v Tanton is not unlimited in its application. Lindsay J. drew the following distinction between the Express & Echo and the Glasgow City Council cases:

'Tanton indicates that if a contract contains a provision that the individual need not perform any services personally then it cannot be a contract of service - see paragraph 32 - and, so regarded, it does not deal with a limited ability to delegate such as that in the case before us. Tanton was a case where the individual could at his own will perform his contract by sending along someone else. Our case, by contrast, is a case in which, in limited circumstances, it would not be a breach of the individual's contract if, the individual being unable to attend, she arranged for another person approved by the employer to attend in her place.'

He also quoted the following passage from the Ready Mixed Concrete case (see ESM7030), with his emphasis:

"Freedom to do a job either by one's own hands, or by another's, is inconsistent with a contract of service, though a limited or occasional power of delegation may not be: see Mr Atiyah's Vicarious Liability in the Law of Torts (1967), pp.59-61, and the cases cited by him."

The relevant clause in Express & Echo contained the words "In the event that the contractor is unable or unwilling to perform the services personally". Therefore, where there is only a limited right of substitution, the Courts may well take the view that, in the context of the overall picture, a contract of service may exist.