Employment status

For the purposes of many basic employment rights including unfair dismissal, the ‘employer’ is defined as ‘the person by whom the employee or worker is [or was] employed’ (s230(4) ERA 1996). When two legal entities are collaborating (e.g., engaged in a joint enterprise, or providing a joint service), questions may arise about how to best ‘engage’ the staff to do the relevant work. Commonly, they may jointly create a single legal entity to hire the employees (e.g., a shared services company). Alternatively, the employees may be seconded from one entity to the other.

However, in recent years, the concept of ‘joint employment’ (which is where two employers jointly engage employees to work simultaneously in a single job role performing work for both employers) has grown in popularity in certain sectors. The EAT has previously held that, provided this is compatible, employees can be simultaneously employed by two different employers at the same time (Prison Officers Association and ors -v- Gough and anor [2009] UKEAT 0405_09_1712). However, a recent EAT decision has questioned the correctness of the EAT’s decision in Gough and left serious uncertainty about the wider concept of joint employment.

E is a longstanding employee of London Fire Brigade (LFB). In 2008, after E was elected as a regional official of the Fire Brigades Union (FBU), LFB released him from his firefighting duties under an agreement between LFB and the FBU. This agreement allowed E to devote himself full-time to his union duties and in return the FBU agreed to reimburse E’s salary to LFB. In 2019, E received a ban on holding office due to an alleged breach of FBU’s rules. As a result of this ban, E ceased work for the FBU and brought various claims, including unfair dismissal, against FBU. The employment tribunal upheld E’s unfair dismissal claim, holding that the FBU’s decision to ban E from office was wholly unreasonable.

The EAT upheld the FBU’s appeal. The EAT held that:

• The tribunal had erred when it had held that E (an employee of LFB on full-time release to perform duties for the FBU), was employed by the FBU. This was not an unusual or exceptional case where E could have been employed by the FBU as well as by LFB and there was no basis to conclude that the FBU had sufficient control over E of a kind consistent with an employment relationship.
• The tribunal had given insufficient reasons for its decision on the issue of whether an individual can be employed by two different employers to carry out the same work at the same time. There was a broad, well-established, legal principle going back almost 200 years that one employee cannot simultaneously have two employers (Laugher v Pointer (1826) 5 B & C 547; Cairns -v- Visteon UK Ltd [2007] ICR 616).
• Gough had suggested that there could be an exception to this longstanding principle if the two employments were ‘compatible’. Although the Gough decision did not provide a precise factual precedent, the EAT ‘respectfully doubt[ed]’ the reasoning in the decision because it came from the different policy context of a vicarious liability case rather than one dealing with employment rights.
• Further, since Gough, the EAT had held that a claimant did not have dual employment contract with two different employers for the same job and work because there was no reason to deviate from the principle that one person cannot have two employers in respect of the same employment (Patel -v- Specsavers Optical Group Ltd [2019] UKEAT/02086/18).

The EAT’s decision leaves great uncertainty around the issue of joint employment. Although there are inconsistent EAT decisions, it seems likely that this EAT decision (applying Pointer, Cairns and Patel) will be preferred to Gough. It seems that joint employment by two employers simultaneously (for the same role/hours/duties) will only be possible in exceptional cases.

This article references Fire Brigades Union -v- Embery [2023] EAT 51. For further information and support, please get in touch.