Carmichael v National Power plc

In my judgment it would only be appropriate to determine the issue in these cases solely by reference to the documents in March 1989, if it appeared from their own terms and/or from what the parties said or did then, or subsequently, that they intended them to constitute an exclusive memorial of their relationship. The industrial tribunal must be taken to have decided that they were not so intended but constituted one, albeit important, relevant source of material from which they were entitled to infer the parties' true intention, along with the other objective inferences which could reasonably be drawn from what the parties said and did in March 1989, and subsequently.

The documents contained no provisions governing when, how, or with what frequency guide work would be offered; there were no provisions for notice of termination on either side; the sickness, holiday and pension arrangements for regular staff did not apply; nor did the grievance and disciplinary procedures. Significantly, as Kennedy LJ in his dissenting judgment with which I agree emphasised, in 1994, for example, Mrs. Carmichael was not available for work on 17 occasions nor Mrs Leese on 8. (p. 1174D). No suggestion of disciplining them arose. The objective inference is that when work was available they were free to undertake it or not as they chose. This flexibility of approach was well suited to their family needs. Just as the need for tours was unpredictable so also were their domestic commitments. Flexibility suited both sides. As Mrs Carmichael said in her application form, "the part-time casual arrangement would suit my personal circumstances ideally!" The arrangement turned on mutual convenience and goodwill and worked well in practice over the years. The tribunal observed that Mrs. Leese and Mrs Carmichael had a sense of moral obligation to the CEGB, but would infer no legal obligation. Mr Lovatt also gave evidence for the CEGB that "neither ladies are required to work if they do not wish to do so." In my judgment, therefore, the industrial tribunal was well entitled to infer from the March 1989, documents, the surrounding circumstances and how the parties conducted themselves subsequently that their intention neither in 1989 nor subsequently was to have their relationship regulated by contract whilst Mrs Leese and Mrs Carmichael were not working as guides. The industrial tribunal correctly concluded that their case "founders on the rock of absence of mutuality." I repeat that no issue arises as to their status when actually working as guides.

Thus, even if the words, "employment will be on a casual as required basis" in the March 1989 documentation were, as Mr Langstaff QC contends, capable of imposing an obligation to undertake guide work when required - and in my judgment they are not - that interpretation is negated by the findings of the industrial tribunal. So also, even if the March 1989 documentation were capable of bearing the primary constructions which found favour with Ward LJ and Chadwick LJ - and in my judgment they are not - the terms which each implied, by invoking business efficacy may not be implied because there may be no implication on that ground unless into a relationship itself contractual.

For all these reasons I would allow this appeal and reinstate the industrial tribunal's reserved decision of 11 September 1995.