Appeal No.	EAT/0134/03/MAA  			EAT/0135/03/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 September 2003

Before
HIS HONOUR JUDGE J SEROTA QC
MS K BILGAN
MR J C SHRIGLEY

PA NEWS LTD t/a THE PRESS ASSOCIATION	APPELLANT

(1) MR P F LOVERIDGE
(2) MR G R JONES
(3) MR J M JONES	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR N RANDALL
(of Counsel)
Instructed by:
Messrs Nicholson Graham & Jones
Solicitors
110 Cannon Street
London EC4N 6AR	
For the Respondents	MR P MITCHELL
(of Counsel)

HIS HONOUR JUDGE J SEROTA QC

1	This is an appeal by the Respondent, Press Association News Limited, from two Decisions of an Employment Tribunal at Leeds, chaired by Mrs Lee.  The first was promulgated on 28 November of last year on a preliminary hearing.  The Employment Tribunal decided that the three Applicants in the case, Mr Loveridge, Mr G R Jones and Mr J M Jones were employees of the Press Association and were not self-employed.  

2	The second Decision which was promulgated later, made various Orders relating to the pension scheme and travel expenses under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.  A claim for holiday pay was withdrawn.  We have been told that there is an outstanding claim for unfair dismissal which has yet to be determined.  

3	This case concerns a number of on-course workers in the betting industry.  The Applicants employ a number of full-time Starting Price Returners and also a number of freelance Starting Price Returners including the three Applicants.  The job of a Starting Price Returner entails attending a race meeting and taking a sample of the twelve strongest bookmakers at the meeting, that is those bookmakers prepared to accept large bets and pay out large winnings.  The Starting Price Returners record the fluctuations in the price of each horse and they then meet in what is described as a “huddle” with the Press Association betting representative and betting representatives from SIS (Satellite Information Service) and they then discuss the final starting price for each horse.  The Starting Price Returner then decides on the appropriate starting price, communicates this to the Press Association which then, we assume, relays that information to those who subscribe or are interested in obtaining the information.  

4	It is right to note that in 1991 there was an investigation into the practice of Starting Price Returners and in relation to on-course and off-course workers.  This investigation was by the Inland Revenue and the Inland Revenue came to the conclusion in a letter dated 30 November 1991 that on-course workers could properly be paid gross and on Schedule D.  Of course this is not in any sense determinative of whether the Applicants were or were not self-employed but is a relevant factor to be taken into account.  

5	The three Applicants had begun working for The Press Association between 1994 and 1998, although as we shall mention shortly, Mr Loveridge had been working in a similar position with the Sporting Mirror or Sporting Life, since 1989.  They had worked as betting reporters, race leaders and Starting Price Returners respectively; Mr Glyn Jones, who did not start off as a Starting Price Returner became a Starting Price Returner in due course.  

6	Mr Loveridge had begun working as a freelance for the Sporting Life in 1989, it was then part of the Mirror Group, but in May 1998 the Sporting Life closed and his employment transferred to the Press Association.  He, as we understand it, relied upon working as a Starting Price Reporter for his income.  In 1989, which was the year he began working, he attended 91 meetings.  Approximately 200 in 1990 and 1991, and from 1992 to 1998 between  103 and 165.  The Employment Tribunal found that between 1990 and 1998 he averaged 140 meetings a year; this went down in 1999 - 2000 to an average of 87, and in the year 2002 to the date of the termination of his employment, 12.  

7	It is right to say, and we interpolate at this stage, that freelance Starting Price Returners were paid a daily rate.  When Mr Loveridge had worked at Sporting Life, he also received a mileage allowance.  This was discontinued when he began to work for the Press Association and although he received a slightly increased daily rate, this did not fully compensate for the loss of the mileage allowance he had received at Sporting Life.  The effect of the decision not to pay a mileage allowance was that as a matter of practice, freelance Starting Price Returners would only agree to attend races that were convenient to them and those that were nearer to their home.  

8	The second Applicant, Mr James Jones, also works as a plastering contractor.  He has attended significantly less meetings than Mr Loveridge; between August 2000 and April 2002 he attended 143 meetings.  Mr Glyn Jones is a solicitor; he attended 63 meetings in 1995, 31 in 1997, 37 in 1998, 37 in 1989, 74 in 2000 and 101 in the year 2001.  

9	It is apparent from a letter that we were shown that after a dispute in the summer of 2001 (that in fact led to the termination and then reinstatement of Mr Glyn Jones’ contract) that he notified the Press Association that he would generally only be able to work for weekends and bank holidays for the foreseeable future.   While he might be prepared to help out with odd problem dates, he would require to be given sufficient notice; this was because, of course, he was working at his day job, so as to speak, as a solicitor.  

10	It is significant to mention that in November 2001 the National Pitch Council report reviewed and assessed the position of Starting Price Returners.  There was evidently some concern at a possible abuse of the system and it is right to say that as a result, a number of requirements were imposed upon Starting Price Returners.  

11	These Regulations prohibited freelancers, as we shall call them, from being involved in any form of betting at any meeting at which they worked, they were prohibited from being involved with the supply of any horse racing related information to any party connected with any form of bookmaking.  They were not entitled to hold betting accounts with any bookmaker, they were not to accept any form of bets or commission on bets or place bets for a third party, they were not to hold a TOTE account, although they were permitted to place bets on the TOTE providing they were placed at least thirty minutes prior to the advertised time of the first race.  Any deviation from those operating rules might lead to disciplinary action and, if substantiated, would normally result in summary dismissal.

12	There were further requirements relating to notification of their arrival at the racecourse and there were procedures given in relation to a rota that was to be provided for each freelancer.  They were to be issued with a draft rota relating to their work for the following calendar month to be issued in the first week of each month, and both full-time employees and freelancers were given seven days to request any alternation; after that the rota would be issued.  The evidence before the Employment Tribunal does not, as recorded by the Employment Tribunal, deal in any great detail with the position of full-time employees but we understand from the Decision that they were obliged to work between fourteen and forty two hours per week.  

13	Furthermore, the operating Rules of Procedure provided that the Starting Price Returner should not provide information on the betting market or price guidance to any party.  They were also obliged in the course of their duties for their respective employers to devote all of their time and activity to the compilation and reporting of the starting price and they were not to engage in any other activity.  These terms were found by the Employment Tribunal to be terms and conditions which applied to the relationship between the Applicants and the Press Association in the sense of a set of rules under which they were obliged to work, but they did not form a contract of employment or terms upon which they were engaged by the Press Association.  For reasons which are not wholly clear to us, the three Applicants last carried out work as Starting Price Returners in April of 2002, and by letters dated 13 May 2002 their contracts were terminated.  

14	As we have said the Applicants had all been treated as self-employed; we assume that this was something beneficial to both parties.  So far as the Applicants were concerned, they were paid gross and accounted for their own tax and National Insurance; they were doubtless able to claim deductions from the Inland Revenue in respect of the use of their cars, telephones, homes and probably stationery and other materials purchased for their use as Starting Price Returners.  So far as the employer is concerned, of course it did not have to account for PAYE, it did not have to pay employers’ contributions on National Insurance, nor did it have, so it believed, to contend with employees as opposed to self employed contractors.  The fact that the parties had, for a perfectly good reason, chosen a particular label to their relationship while a matter to be taken into account, indeed a significant matter to be taken into account, in determining whether the relationship was one of employer and employee or provider of services and user of services, if that is the correct expression.  However, the label that the parties place on their relationship is not determinative.  The Employment Tribunal in its Decision noted at paragraphs 3(8) and 3(9):
“(8) There has been a conflict in evidence as to the extent to which the Applicants were entitled to pick and choose which days they worked.  We find  that Mr Dawson or somebody under his control prepares the rota a month in advance.  The information he has beforehand is knowledge of which “Freelancers” are prepared to work which race courses because of the travelling involved.  Each of them notify him in advance of when they are either available or alternatively unavailable to work.  He then prepares the rota.  Once the rota is issued both the “Freelancers” and those regarded as full time employees have the opportunity to “swap” work or turn down work if for some reason or other it is inconvenient but they have only seven days in which to do that.  On occasions the “Freelancers” simply contact Mr Dawson and notify him that they cannot work that particular day.  On other occasions they will either arrange a swap through him or more frequently arrange a suitable swap themselves with other people on the rota.  In the event of a swap it is the Returner who actually covers the day’s race who is paid by the Respondent.  It is not possible for either a “Freelancer” or a full time employee simply to substitute another person to attend in his stead.
(9) We accept Mr Glyn Jones’s evidence that in May 2001 he was asked to cover a meeting at Newton Abbot followed by one at Hertford the following day.  He objected as he could claim only £20 towards petrol or £30 towards an overnight stay and he therefore would lose money on the trip.  An agreement was reached between himself and Colin Hough that he would be paid both the petrol allowance and the overnight stay allowance and would have an increased SP rate.  That however was an Ad Hoc arrangement for that particular meeting.  Due to similar circumstances arising later that year Mr Jones found that he was actually losing money in attending meeting which were some distance away.  Consequently he told Mr Dawson that he could not attend meetings at Worcester and Newton Abbot in August although he could attend meetings at Bangor and Chester and Haydock Park which were nearer to his home.  As a result Mr Donelly the Director of Racing and Betting contacted him to tell him that people could not pick and choose meetings and that therefore Mr Dawson had decided to remove him from the list altogether.  We find therefore that the Applicants were not completely free as the Respondents suggest to accept offers of work or refuse them at will but that they were in fact penalised for refusing offers of work.  As a result of subsequent discussions Mr Glyn Jones was reinstated to the list and was paid for three of the meetings which he had lost during the course of the dispute.  We also accept the evidence of each Applicant that they rarely refused offers of work unless there were particular reasons why they could not accept and in particular Mr James Michael Jones’s evidence that his refusal on Boxing Day 2001 was because he had been asked to attend at extremely short notice so that even if he had accepted the offer of work he would not have been able to arrive at the race course prior to the start of the first race.  The fact that he was not disciplined in any way for that refusal therefore has not figured in our deliberations.”

At paragraph 3(12) the Employment Tribunal had this to say:
“In the light of this ….”
and this is a reference to the position of Mr Glyn Jones 

“We find that Mr Glyn Jones had had his contract terminated because he was only available at the weekends.  Unlike the other two Applicants there is no reference in his letter to a lack of performance.  We therefore do not find as the Respondents submit, that the Applicants were free to choose which days and when they would work.”

15	In paragraph 13 the Employment Tribunal deal with the position of Mr Loveridge and the fact that he had complained when only given one meeting in May:
“…. Because by that time he and his two fellow Applicants had formed a reasonable expectation that given the number of race meetings, the limited number of permanent employees and the organisation’s reliance on what they described as “Freelancers” in order to fulfil their obligations, that if there was to be a race in an area within reasonable travelling distance of their home address which could not be covered by full-time employees, then they would be offered the opportunity of attending that race.  That expectation over a considerable period of time had hardened into an implied term of the Applicant’s contract as this in fact is what had happened in practice over the years.”

The Employment Tribunal in its Decision referred to the decision of the House of Lords in the case of Carmichael - v - National Power [1999] ICR 1226 as authority for the proposition that where there is no written contract or where documents do not contain an exclusive record of the parties’ obligations, it is appropriate to determine the terms of their employment status by reference to all the relevant circumstances.  	The Court of Appeal in that case had, as is apparent from citations in the speech of the Lord Chancellor Lord Irvine, come to the conclusion that the respondent to that appeal, National Power, had an implied obligation to provide a reasonable share of work for each of the Appellants; that was the view of Lord Justice Ward.  Lord Justice Chadwick took a more restrictive view but nevertheless considered that on the documentary material in that case the respondent was obliged to offer work to the Applicants.  The Lord Chancellor said that as a matter of construction he would hold that there was no obligation on the part of the respondent to provide work to the applicants, nor was there any obligation on the part of the respondents to undertake work offered.  He said this:
“There would therefore be an absence of that irreducible minimum of mutual obligation necessary to create a contract of service.”
Lord Hoffmann had this to say at page 1234 C and D:
“Putting the matter at its lowest, I think that it was open to the industrial tribunal to find, as a fact, that the parties did not intend the letters to be the sole record of their agreement but intended that it should be contained partly in the letters, partly in oral exchanges at the interviews or elsewhere and partly left to evolve by conduct as time went on.  This would not be untypical of agreements by which people are engaged to do work, whether as employees or otherwise.”

16	The Employment Tribunal also referred to the well-known and oft cited decision in Ready Mixed Concrete -v- Minister of Pensions [1968] IRLR 433 and also to Montgomery -v- Johnson Underwood.  It directed itself correctly that mutuality of obligation and control were the irreducible minimum legal requirements for the existence of a contract of employment, and they refer to the three necessary conditions that:
“(i)  The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.”
[That is mutuality of obligation]
“(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.”

17	It also reminded itself of the need to step back and consider the whole picture to see whether a contract emerges, but only after it had satisfied itself that there was sufficient mutuality of obligation and control, otherwise the other provisions of the contract were not relevant.  It accepted the submission of the Press Association that it needed to consider all of the overall factors in the round, not just as a score on a checklist in the sense that some points may be more persuasive than others.  It went on to reject the Applicants’ submission that there was a common law duty to provide sufficient work for the Applicants because of the particularly skilled nature of their work so they could maintain those skills.  It came to the conclusion that the operating rules and procedures, as we have noted, did not form the contract between the parties, although it came to the conclusion that the restrictions were incompatible with a contract for services.  It found that the degree of control exercised over them was such, that it in particular prevented the Applicants working for others when not working for the Respondents.  It concluded that the fact that the Applicants were not entitled to delegate and the fact that two of the Applicants had had to undergo medical examinations, while the third had provided a medical report, were more consistent with employment than being self-employed.  

18	The principal attack on the Decision of the Employment Tribunal relates to its findings on the mutuality of obligation; the irreducible minimum for the contract of employment.  What is accepted by both parties is that this requires that the employers should be under an obligation to provide work and when they do the employee must be under an obligation to undertake that work.  It is important to bear in mind that we are not considering the position of the Applicants when they were actually carrying out their duties.  The issue that we have to determine is whether the Employment Tribunal is correct in holding that they were employed even at a time when they were not carrying out any duties under a contract of employment, rather than a contract for services.  

19	We return to the finding of the Employment Tribunal that there was an obligation on the part of the employer to provide work; we have read the relevant passage from paragraph 3(13).  Three matters are relied upon by the Employment Tribunal.  Firstly the number of meetings attended by the Applicants; secondly, the fact that the Respondents had a limited number of employees, and thirdly that the organisation, as it was called, relied upon freelancers.  This led to what is described as a “reasonable expectation” by the Applicants that if there was a race in an area within reasonable travelling distance of their home address which could not be covered by full-time employees, they would be offered the opportunity of attending that race.  This expectation over a considerable period of time had hardened into an implied term of their contract “as this in fact is what had happened in practice over the years”.  

20	A reasonable expectation of course is not the same as an implied term and one is entitled to ask forensically: “how is it that expectation hardens into an implied term?  When did the variation take place? When was this term first to be implied”?  The Employment Tribunal gives us little assistance as to its reasoning.  It is trite law that terms may be implied into a contract when they have, of course, not been agreed expressly, either where they are necessary or where they are so obvious that the informed and officious bystander would say:“oh well that has obviously been agreed, there is no need to spell it out”.  However, that does not mean that a term would be implied (and we refer to Chitty, paragraph 13009:)
“… because it would improve the contract or make its carrying out more convenient.  The touchstone is always necessity and not merely reasonableness. “

There is, or was, a suggestion made, we have to say somewhat tentatively by Mr Mitchell, that a term could be implied as a result of custom and practice.  However it is quite clear, and again there is no dispute between the parties as to the law, that a term will only be implied as a result of custom and practice on the basis that the parties had agreed the obvious.  The custom and practice must be both reasonable, notorious and certain.  In this particular case, it was submitted, there was no evidence of any notoriety because it is accepted that the term did not arise at the inception of the contract, but only after the passage of time.  

21	It was also submitted that the nature of the term was uncertain because it was so hedged about.  Mr Randall submitted that one could not have what he described as a “creeping variation to a contract”.  He submitted that the finding of the Employment Tribunal that expectation had hardened over time and had therefore led to the implication of a term could not be justified by using traditional contractual tests which we have mentioned.  He drew our attention to the case of Janata Bank -v- Ahmed [1981] ICR 791 in which Lord Justice Donaldson, as he then was, had this to say:
“Finally, the appeal tribunal erred in contemplating a creeping variation in Mr Ahmed’s contract of employment indicating, “a loosening of the contractual ties with Dakar and a closer link with London”  This to my mind is an impossible concept.  Either the contract was varied or it was not.  While it may sometimes be difficult to say when a contract was varied, there is always a time of variation. The continuously changing contract is unknown to the law.”

22	Mr Randall also submitted that the Employment Tribunal fell into error in finding that the Applicants had undertaken an obligation to work.  He drew our attention to paragraph 3(8) of the findings, which we have already referred to.  It is quite clear from those findings that the rota was prepared a month in advance; the freelancers notify the Press Association in advance of when they are available or alternatively unavailable; the rota is prepared and once issued, both freelancers and full-time employees can either swap work or turn down work, if for some reason or other it is inconvenient, and they are given seven days in which to do that.  He submits that this finding completely destroys any suggestion that there was an obligation in the sense of a legal obligation on the part of the Applicants to accept work, and that the finding of the Employment Tribunal to the contrary cannot be justified.  The Employment Tribunal appeared to have confused good commercial reasons for undertaking work, and indeed for penalising freelancers not prepared to work at times satisfactory to the Press Association, and a legal obligation on the part of the freelancers to undertake work.  

23	The Employment Tribunal dwelt on what happened to Mr Glyn Jones in May 2001.  He was asked to cover a meeting in Newton Abbot followed by one at Hertford the following day.  He objected that he could claim only £20 towards petrol or £30 towards an overnight stay and would lose money on the trip.  He reached an agreement that he would be paid both the petrol allowance and the overnight stay allowance and would have an increased daily rate.  Similar circumstances arose later that year and Mr Jones found that he was actually losing money in attending meetings which were some distance away.  He told the Press Association he could not attend meetings at Worcester and Newton Abbot in August, although he could attend meetings at Bangor, Chester and Haydock Park which were nearer to his home.  As a result the Employment Tribunal found that Mr Donelly, the Director of Racing and Betting, contacted him to tell him that people could not pick and choose meetings and that therefore Mr Dawson had decided to remove him from the list altogether.  The Employment Tribunal then said this:
“We find therefore that the Applicants were not completely free as the Respondents suggest to accept offers of work or refuse them at will but that they were in fact penalised for refusing offers of work.”

24	We pause to interpolate that the Employment Tribunal seems to draw from the fact that the Press Association might take what might be regarded as commercial action against freelancers who were unwilling or unable to work at the times and places required, as being some form of legal constraint placed upon the freelancers as to when they might accept or refuse work.  It seems to us to be nothing of the kind.  Mr Randall submitted that these findings were at best neutral and indeed rather supported his case because they showed that the Press Association could not compel Mr Glyn Jones to work.  He was also reinstated and paid for three days work that he had not undertaken.  Mr Randall submits that this was inconsistent with the argument that he could be compelled to work.  The fact, he submitted, that the Applicants rarely refused work was irrelevant, what mattered was whether they were entitled to refuse work.  The last sentence of that paragraph “the fact that he was not disciplined in any way for that refusal, therefore, has not figured in our deliberations”, was characterised by Mr Randall as being ridiculous.  We do not fully understand the import of that sentence.

25	We are not satisfied that a contract cannot evolve, as a result of conduct, and it therefore follows that as a contract evolves it may become necessary to imply additional terms into that contract.  That is reasonably clear from the passage in the speech of Lord Hoffmann that we have quoted in Carmichael at page 1233.  Mr Mitchell also drew our attention to an extract from Harvey at pages 1671 to 1678 in relation to findings of fact and law by an Employment Tribunal in relation to the question of whether a person was employed under a contract of employment or a contract of services. He submitted, in effect, that as the Employment Tribunal had made factual findings, the Press Association had to make out a case on perversity or fail.  He submitted that this was a case in which the Employment Tribunal was perfectly entitled to come to the conclusion that the contract had evolved by conduct.  He also drew our attention to the recent decision of the Court of Appeal in Franks -v- Reuters [2003] IRLR 423.  At paragraph 29 Lord Justice Mummery had this to say:
“The tribunal also excluded from their consideration evidence of the length of time for which Mr Franks worked at Reuters.  The length of time in this case is unusual for a person, who is described in the documents as a ‘temporary worker’.  Most temporary workers are not entitled to the right not to be unfairly dismissed or to redundancy pay, because they have not served for the qualifying period of service.  The question whether they are employees or not is usually irrelevant.  Whilst I would agree that a person cannot become an employee simply by reason of the length of time for which he does work for the same person, the tribunal appear to have treated the evidence of length of service as irrelevant to the employment issue.  In my judgment, it is not irrelevant evidence in the context of an individual who sought a temporary placement through an employment agency, but was then allowed to stay working in the same place for the same client for over five years, during which period he was redeployed.  Dealings between parties over a period of years, as distinct from the weeks or months typical of temporary or casual work, are capable of generating an implied contractual relationship.  That possibility should have been addressed by the tribunal as part of its consideration of the overall situation in relation to his work, first as a driver and then as help desk operator.”

26	Mr Mitchell relied upon the following matters as justifying the implication of the term that the Press Association was bound to supply work to the Applicants.  He firstly referred to the working practice of offering them work near their homes.  Secondly, to the regularity and longevity of their working relationship, thirdly the fact that the rota was issued each month and there was work for the Applicants on the rota.  Fourthly that Mr Glyn Jones was paid for attendances on days he had in fact been prevented from working.  Fifthly, that freelancers complained that they were not given sufficient work.  Sixthly they had been promised a redundancy package, and seventhly, that they had all been given a month’s salary.  He also, as an eighth point, pointed to the conditions we have referred to and said “if they were not employed why should there be what is described as a power of dismissal?” and he submitted that these matters and the conduct of the parties in the Press Association providing work and the Respondents undertaking it, evidenced the implied term found by the Tribunal.  It is right to observe that none of those reasons are in fact given by the Employment Tribunal as the justification for the implied term.  

27	We accept that in certain circumstances, where a relationship has persisted on a regular basis with frequent employment of a freelancer, it may be possible to imply a term that the employer is bound to offer work, but we do not feel that the reasons given by the Employment Tribunal in this particular case, which we have already referred to, that is the three reasons set out in paragraph 3(13), nor the additional reasons given by Mr Mitchell, could justify the implication of a term that the employers were bound to offer work to the employees.  The implication of such a term could certainly not be regarded as necessary, the informed bystander would certainly not regard it as plainly obvious, and there is nothing that in our view would justify the finding that the conduct of the parties evidences some implicit intention that there should be a mutual obligation on the part of the Press Association to provide work and of the Applicants to undertake work.  Even if we are wrong about that, the findings of the Employment Tribunal, which we have referred to at paragraph 3(8) in relation to the obligation on the part of the Applicants to undertake work, in effect destroy any subsequent conclusion that the Applicants were bound to accept work; the very contrary appears from that paragraph.  

28	While there may have been very good commercial considerations that would strongly compel the Applicants to make themselves available to carry out work and then to accept the work that was offered, a commercial constraint is not the same as a legal constraint.  If there were an obligation to provide work and a corresponding obligation to do it, then save for what might be regarded as minor alterations, a freelancer who refused to undertake work on a rota within the seven day period would be in breach of contract.  We do not regard that as being the case, neither do we regard that as being something contemplated or understood by either party.  Mr Mitchell submitted that the Employment Tribunal did give sufficient reasons for its decision, while he recognises that its reasoning is not as full as he would wish, nonetheless he submits that it was satisfactory to explain to the parties the reason for the Decision and to this Appeal Tribunal to determine whether there has been a mistake of law.  

29	In relation to the obligation to work point, Mr Mitchell made a number of submissions.  In particular, something perhaps we regard as a jury point, that if full-time employees could also reject the rota within seven days, they might also be regarded as self-employed.  He drew attention to the fact that the Employment Tribunal found at paragraph 15 that the Press Association expected that the freelancers would work and that the seven day period was not in effect a period of grace, as the freelancers were expected to work unless there was a good reason.  If Mr Mitchell is submitting that they were “expected to work”, unless there was a good commercial or personal reason not to, then we would agree, but if he seeks to suggest that they have no legal right to refuse to work, then we must part company.  There was considerable debate by the parties in their Skeleton Arguments as to the significance of whether or not it was possible for freelancers to delegate duties, it seems to us that the point is at best neutral.  It is certainly not decisive and the fact that they were entitled to effectively have other persons on the approved list, or on the rota, undertake their duties, does not seem to us to add weight to either party’s case.  

30	In the circumstances, we have to say that we prefer the submissions of Mr Randall for the reasons we have given.  We do not consider on the facts of this case, as found by the Employment Tribunal, that it is possible to extract an implied obligation on the part of the Press Association to provide work, nor can there be, on the facts as found by the Employment Tribunal, an obligation on the part of the freelancers to undertake work unless and until the rota had been accepted by them.  It seems to us in those circumstances, therefore, that the irreducible minimum of a contract of service, that is mutuality of obligation to provide and undertake work, is lacking and therefore there was no contract of service between the Applicants and the Press Association.  

31	It follows, therefore that the appeal must be allowed.  There is no need to consider the second appeal which follows this.  We would like to express our gratitude to both parties for their helpful submissions and Skeleton Arguments, and we would also like to stress that every case such as this is to a large extent fact-sensitive; the facts of this case are not a guide to other cases, but as we say are sensitive to the particular facts of this case.  

I would like to express my personal gratitude to my colleagues who have sat with me, Mr Bilgan and Mr Shrigley.  They were not expecting to deal with this case when they came in today, and in order to avoid the parties having to come back on another day, they very kindly agreed to make themselves available to deal with this matter at short notice.  We are all grateful to them.