Muschett v HM Prison Service (2010)


The Employment Tribunal and Employment Appeal Tribunal took the view that Mr Muschett was subject to the control of the Prison in terms of the daily tasks he undertook because the Prison could dictate what work was undertaken and when. The Prison also provided the tools which it wanted Mr Muschett to use whilst performing the services.

Further, Mr Muschett was required to provide his personal services whilst working at the Prison as there was no right for him to provide a substitute, nor did he attempt to provide a substitute in practice.


Mutuality of Obligations

However, the relationship could be terminated without notice or liability by either party demonstrated a lack of mutuality of obligations in the relationship between Mr Muschett and the Prison. This was considered significant enough precluded the existence of an employment relationship in this case because the right to terminate without notice had been exercised in practice and all other terms of the contract were exercised sufficiently to demonstrate that the contract accurately reflected the daily working practices in the relationship.


Length of engagement

The Court of Appeal confirmed that being engaged on a lengthy assignment with a client will not, on its own, be evidence of an employment relationship. This is even the case where it was envisaged to be a temporary/short term assignment at the outset which has lasted longer than anticipated.


Other factors

The Court of Appeal agreed with both the Employment Tribunal and Employment Appeal Tribunal that despite Mr Muschett’s attempts to secure permanent employment with the Prison, Mr Muschett having undertaken manual handling and induction courses run by the Prison and being issued with a Handbook similar to that issued to the Prison’s employees, these factors were not sufficient to point towards an employment relationship between the parties.

Martin Hesketh, Managing Director of Brookson Limited commented that “this case reaffirms the position that contracts which accurately reflect the working relationship and are implemented in practice can carry significant weight and could win the day for contractors in demonstrating they are not disguised employees of a client”.

“Contractors should make it as hard as possible for anyone to consider the relationship is one of employment rather than an arms length commercial engagement of contractor and client by ensuring that a good contract is in place from the outset and is continually reviewed to ensure it reflects what happens in practice.”

“As ever, it is essential for contractors to seek professional advice to ensure that the contract and their working practices reflect each other and highlight inconsistencies which can be addressed early.”

Pinsent Masons commented that “following the EAT's decision in Alstom Transport v Tilson, the Court of Appeal's decision in Muschett v HM Prison is another useful case when considering employment status issues.”

“Reinforcing the principles of the James v Greenwich case, the Muschett decision underlines the point that, where there is a clear intention between the parties, and the contractual documentation reflects that intention, there is no need to imply a contract of employment between an agency worker and an end user. This is the latest is a line of cases to reinforce that fact and should give additional comfort, and certainty, to contract workers and employment agencies”.

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