19/01/2010
Simultaneous Employment approved in Prison Officers Association v Gough (1) and Cox (2) The EAT has confirmed that an employee can be employed in two jobs with two different employers simultaneously, so long as the jobs are compatible with each other. Anne Palmer explains more.
Facts
Mr Gough and Mr Cox (the “the Claimants”) were employed full time by the Prison Service when they were then elected as National Executive Officers by the Prison Officers' Association. Following this second appointment, the Prison Service agreed that the Claimants could do 85% of their normal hours for the Prison Service and then spend 15% of their time on working for the Prison Officers' Association. Both Claimants continued to receive their full Prison Service salary, but in addition received £14,000 a year from the Prison Officers Association, plus expenses and a car, on which they paid tax.
Whilst the judgment does not elaborate on what the cause of the dispute was, the question arose as to whether the Claimants were employees of the Prison Service as well as being at the same time employees of the Respondent (within the meaning of section 230(1) Employment Rights Act 1996) and therefore whether two or more contracts of employment can apply to the same person at the same point in time.
The Tribunal Decision
The tribunal, noting the factors as set out in Social Club & Institute Ltd v Bickerton [1977] ICR 911 as to when an office holder might also be an employee, concluded that the Claimants were employed by the Respondent. They considered the seven factors that had been put forward in the Bickerton case and applied them to the facts of this case, concluding that were the Claimants were employees because;
"They worked full time for the Respondent in return for not insubstantial payment fixed in advance. They worked under a degree of control and there was mutuality of obligation. Their duties went beyond the constitution [….]. The claimants performed a range of duties for which the greater part of their time was outside the constitution. They were certainly not voluntary acts."
The Employment Appeal Tribunal
The EAT held that it had been necessary for the Employment Judge to apply the test as set out in Social Club & Institute Ltd v Bickerton [1977] ICR 911 to this case and that there was no error in of law in the Employment Tribunal's reasoning.
The EAT further confirmed that a person can have two jobs with separate employers at the same providing they are compatible with each other, as was set out in Viasystems (Tyneside) Limited v Thermal Transfer (Northern) Limited. The EAT agreed with the Respondent's assertion these comments were made in a case of vicarious liability but asserted that that was irrelevant owing to the fact that what was being explained in that case also applied in determining whether there can be two separate contracts of employment.
Therefore the EAT maintained that the ET had made no error of law in finding the individuals to be employees of the Respondent, as well as of the Prison Service at the same time.
Practical Effects
It remains to be seen what, if any, impact this decision will
have in practice.
