Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

The case of Pulse Healthcare v Carewatch Care Services Ltd & Ors is a “TUPE” case where a healthcare contract to care for a severely disabled woman supported by a local Primary Care Trust had been transferred from one company (“Carewatch Care Services Limited”) to another (“Pulse Healthcare”). The persons providing the care to the woman argued that they had employee status and that TUPE therefore would transfer their employment to Pulse from Carewatch. Further, they alleged that they had sufficient continuity of service to claim unfair dismissal and that the termination of their contracts was therefore automatically unfair. They succeeded at a PHR on these points and Pulse appealed on the basis that there was not the necessary mutuality of obligation present to constitute employee status and, further, that the Claimants were employed on a series of short-term contracts (and therefore would not have sufficient continuity of service). The EAT rejected the grounds of appeal and found that the Employment Judge at the PHR had been entitled to conclude on the facts that there was sufficient mutuality of obligation (specialist care package, fixed monthly rotas etc.) and that the Claimants were employed under a global “umbrella” contract instead of a series of short-term contracts.

The facts in Pulse Healthcare v Carewatch Care Services Ltd & Ors

Mrs Short, Ms Tweedy, Ms James, Ms Sloane and Ms Kelly (together “the Claimants”) worked as part of a care team package supported by the local Primary Care Trust (“PCT”) for a severely disabled lady (“VF”). Until December 2010 they were employed by Carewatch Care Services Limited (“Carewatch”). In December 2010 the PCT terminated the contract with Carewatch and transferred it to Pulse Healthcare Limited (“Pulse”). The Claimants claimed they were employees of Carewatch, providing care services to VF (and that therefore the Transfer of Undertakings (Protection of Employment) Regulations 2002 transferred their employment from Carewatch to Pulse). Pulse denied this, principally on the grounds that:

  1. The Claimants were not employees of Carewatch as there was not the requisite mutuality of obligation; and
  2. The Claimants did not have sufficient continuity of employment to claim unfair dismissal; and
  3. Even if they were employees, their employment did not transfer to Pulse under TUPE

The Claimants succeeded at a pre-hearing review on the first two grounds: the Employment Judge found that on the balance of probabilities they were employees of Carewatch and that they did have sufficient continuity of service to claim for unfair dismissal (more than one year). The Respondent appealed these findings. The third point is yet to be determined at a full liability hearing.

The law relating to establishing employment status

To qualify to claim unfair dismissal under the Employment Rights Act 1996 a person be an employee of their employer. They must therefore have a contract of service with their employer (as opposed to a contract for service). Normally, showing that a contract of service is in existence is a fairly straightforward issue: the employee simply has to produce their contract of employment. However, there are two circumstances in which the situation can be more complicated:

  1. The person does not have a written contract with their employer; or
  2. The person does have a written contract with their employer but this contract purports to be a contract for services, not a contract of service

If either of the above two conditions apply then the person seeking to rely on the Employment Rights Act 1996 must show on the balance of probabilities that the facts suggest that they have a contract of service. In order to demonstrate this the person must principally show (among other things) that:

  1. Control: that their employer has “ultimate authority” over how they do their work
  2. Mutuality of obligation: that the employer was obliged to provide work and remuneration for the person and that this person had a corresponding obligation to provide personal service to their employer

The Employment Tribunal will look at all circumstances of the case to determine whether there was a contract of service or not. For example, if the person receives regular wages, holiday pay, sick pay and works at a regular premises then they are more likely to be considered an employee. If they provide their own equipment, do not receive a regular wage and are not paid on a PAYE basis then they may not be considered to be an employee but, instead, a worker. The Employment Tribunal will consider the existence and terms of a contract, if there is one, but is entitled to find that the contract is a “sham” if it contradicts the reality of the working situation.

The Employment Appeal Tribunal’s judgment in Pulse Healthcare v Carewatch Care Services Ltd & Ors

The Employment Appeal Tribunal rejected the Respondent’s appeal on both grounds. It found that the Employment Judge was entitled to find that there was sufficient mutuality of obligation to render the Claimants “employees” instead of workers and, further, found that the Claimants were employed on a global “umbrella” contract instead of a series of short-term contracts. Although Carewatch had requested that the majority of the Claimants sign a “Zero Hours Contract Agreement” this conflicted with the evidence that the Claimants had advanced of the nature of their working relationship, which suggested that they were employees (i.e. they had fixed rotas and were specifically employed in specialist positions on the VF contract).

Our specialist employment lawyers’ views on Pulse Healthcare v Carewatch Care Services Ltd & Ors

This case shows that even if persons are employed on “zero hour contracts” (which are becoming ever more popular) they may be deemed to have employee status if the reality of their employment suggests that there is mutuality of obligation and control by the employer present in the working relationship.

Redmans are employment solicitors in Richmond, London.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.76 Average

124 Reviews

Brittany

I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 4 months ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 5 months ago

Anonymous

Excellent service. It was a pleasure to work with Chris H, who is brilliant at what he does and very efficient. Their Senior Associate Rana T. is also very knowledgeable and resolves any queries speedily and efficiently. My issue could unfortunately not be resolved, but that was due to my employer and not the firm. Redmans however did all they could. I would definitely recommend them.

Posted 5 months ago

Anonymous

Very pleasant and quick to deal with. Mnay thanks.

Posted 5 months ago

Anonymous

Easy to get hold of. Quick.

Posted 5 months ago

Owen J

Very helpful, efficient service.

Posted 5 months ago

Anonymous

I am very lucky that I worked with Mr. Chris Hadrill and he managed my case very progressively with an analytical approach and trustfully. Of course with a very positive result. I strongly recommend Mr. Hadrill to any one seeking for a successful result from a highly qualified solicitor.

Posted 6 months ago

Kulbir S

Amazing, quick friendly service from Chris from the start and Caroline. They made me feel at ease during a difficult time, they understood and advised accordingly and I am really happy with the outcome of my case. Will always advise anyone who needs legal advice to contact Redmans, I’m so glad that I did and can confidently say I don’t think any other firm could have handled my case any better. Well done guys, wish you all the best and please keep doing what your doing, simply the best!

Posted 6 months ago

Mark A

Excellent service - rapid and “to the point” advice given to ensure meeting the target time frame

Posted 6 months ago

Anonymous

Chris Hadrill kept me sane during the negotiations with my employer. He was courteous professional and he cared about doing the best he could for me. I will use Redmans again if ever I need an employment solicitor. Excellent service.

Posted 6 months ago

Muhammad Z

Awesome services. Professionals at their best .

Posted 6 months ago

Anonymous

Thanks for the advice and for negotiating a good outcome. Good to have the support at a very stressful time

Posted 6 months ago

Chloe F

My solicitor at Redmans was very helpful and efficient. Really pleased with the smooth service.

Posted 6 months ago

Anonymous

Chris was absolutely excellent. Clear and concise, offering sound advice.

Posted 6 months ago

Tim O

Experienced and competent advisors

Posted 6 months ago

Rachel A

Quick and expert assistance. I would highly recommend Chris for any of your legal needs.

Posted 6 months ago

Joe S

I was very happy with the service provided by Chris and the team at Redmans Solicitors. I felt very comfortable discussing all matters with Chris and am very grateful for all the help and guidance I was given throughout the whole process. I would definitely recommend Redmans Solicitors to friends and family!

Posted 6 months ago

Anonymous

I had a very good experience working with Chris Hadrill during a difficult and emotional time. This held true from the moment I spoke to him on the phone, to the end of the process. Overall, he was attentive, professional and highly supportive. He provided sound advice and clarity. It was the reviews that led me to Redmans! I was very happy to know they were all true. I highly recommend working with Redmans Solicitors. Thank-you to the entire team!

Posted 6 months ago

Anonymous

Good service

Posted 6 months ago

Anonymous

Excellent professional service. Highly recommend.

Posted 6 months ago

Rob O

Very prompt response and I could not fault the service. My solicitor listened carefully to the details of my case and I felt very confident in the advice I was offered. All emails and work done on my behalf with my former employer was of the highest standard and Redmans helped take a lot of the stress out of the situation for me.

Posted 7 months ago