Employment lawBy Martin Edwards, Mace & Jones, LiverpoolEmployment statusMotorola Ltd v Davidson and Melville Graig Group Ltd (2001) IRLR 4At first sight, this is perhaps a startling decision of the...Employment statusMotorola Ltd v Davidson and Melville Graig Group Ltd (2001) IRLR 4At first sight, this is perhaps a startling decision of the Employment Appeal Tribunal (EAT) sitting in Edinburgh.

An employment agency, Melville Craig, had a contract with Motorola for the supply of temporary workers.

Mr Davidson responded to an advertisement for a job with Motorola, but the recruitment process was carried out by Melville Craig, who assigned him to work at Motorolas site.

Under the terms of his contract, he was bound to comply with all reasonable instructions and requests made by Motorola.

Ultimately, he was suspended by Motorola, who then decided to terminate his assignment to them.

He claimed unfair dismissal against both Motorola and Melville Craig.

Motorola asserted that it had all along regarded him as an employee of Melville Craig and that he never had a contract of service with Motorola.

However, a tribunal ruled that he was an employee.

Motorolas appeal against that decision was limited to challenging the tribunals conclusion that as between Motorola and Mr Davidson, there existed the right of the former to control the latter to a degree sufficient to enable a tribunal properly to regard him as Motorolas employee.

The EAT dismissed the appeal.

In determining whether there is a sufficient degree of control to establish a relationship of employer and employee, there is no good reason to ignore practical aspects of control that fall short of legal rights.

Nor need the control be exercised only directly rather than by way of a third party acting upon the directions, or at the request, of the employer.

According to Lindsay P: The law has long regarded it as possible in appropriate contexts that an act which A procures B to do should be regarded as done by A Nor does one necessarily disprove the existence of a degree of control over a worker consistent with his being an employee of A by showing that B had equal or even greater powers over him.The editor of the IRLR says this decision is in tune with the changing view of employment relationships, reflecting the growth of atypical employment.

However, the EAT emphasised that they concentrated upon control, because Motorola chose to argue only as to the control component.

It may therefore be that the decision does not possess quite as much significance as is suggested in the IRLR highlights.

MacFarlane & another v Glasgow City Council (2001) IRLR 7This decision of the EAT sitting in Edinburgh is a useful corrective to an overly literal interpretation of the Court of Appeal in Express & Echo Publications Ltd v Tanton (1999) IRLR 367.

A tribunal held that the fact that gym instructors could arrange for a replacement from a register maintained by the council if for any reason they were unable to take a class was inconsistent with the existence of a contract of employment.

The EAT said that Tanton did not compel such a conclusion.

Rather, Tanton indicates that a contract cannot be a contract of service if it contains a provision that the individual need not perform any services personally.

The present case was distinguishable.

Instructors could not simply choose not to work in person.

Only if they were unable to attend could they arrange for another to take the class.

The replacement had to be on the councils own register and thus the council had a type of veto.

Moreover, the council itself sometimes organised the replacement and did not pay the instructor for time served by a substitute, but instead paid the substitute direct.

The matter was therefore remitted to the tribunal for reconsideration.