Carmichael and Another v. National Power Plc

HOUSE OF LORDS

Lord Chancellor Lord Goff of Chieveley Lord Jauncey of Tullichettle Lord Browne-Wilkinson Lord Hoffmann

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

CARMICHAEL AND ANOTHER

(RESPONDENTS)

v.

NATIONAL POWER PLC.

(APPELLANTS)

ON 18 NOVEMBER 1999

LORD IRVINE OF LAIRG L.C.

My Lords,

Mrs. Leese and Mrs. Carmichael began to accept work as guides at Blyth Power Stations in Northumberland in 1989. The work was part-time. Both worked for about 3.75 hours per week in 1990 and 6 hours per week in 1991. In the following years their hours increased and by 1995 they may have been working for as many as 25 hours per week. They were paid at a flat rate for the hours actually worked.

    The issue is whether they were employees under contracts of employment and therefore entitled under section 1(1) of the Employment Protection (Consolidation) Act 1978 (see now section 1 of the Employment Rights Act 1996) to written particulars of the terms of their employment from National Power Plc., the successor to Blyth Power Stations, formerly operated by the Central Electricity Generating Board ("C.E.G.B.").

    The issue is narrow. The primary case advanced on behalf of Mrs. Leese and Mrs. Carmichael throughout has been that an exchange of correspondence between the parties in 1989 constituted a contract; and that that contract was to be classified as a contract of employment. The claim to particulars of terms of employment was not advanced on the basis that when they actually worked as guides they did so under successive ad hoc contracts of employment.

    The industrial tribunal held that they failed at the first hurdle: the correspondence did not constitute any contract, whether of service or otherwise. The Employment Appeal Tribunal dismissed an appeal from that decision. By a majority (Kennedy L.J. dissenting) the Court of Appeal allowed their appeal [1998] I.C.R. 1167. National Power appeal by leave of your Lordships' House.

    On 15 November 1989, the C.E.G.B. invited applications "for the posts of station guides." "Successful candidates" would be required to:- "Supervise parties of visitors on pre-selected tour routes around the power station site;" as well as explain and answer questions on the various parts of the plant; and give a short presentation about the C.E.G.B. and how electricity is made and transmitted. They were also to be given "full training." The invitation continued:

"Employment will be on a casual as required basis and payment will be at the rate of 376.56 pence per hour, being the minimum of Band I of the N.J.I.C. Agreement."

Mrs. Leese and Mrs. Carmichael applied, were interviewed and then received letters in common form:

"I am pleased to note that you are agreeable to be employed by the C.E.G.B. at Blyth "A" and "B" Power Stations on a casual as required basis as a station guide.

"When your services are required you will be paid at the rate of 376.56 pence per hour being the minimum of Band I of the N.J.I.C. Agreement. Your salary will…