There would therefore be an absence of that irreducible minimum of mutual obligation necessary to create a contract of service (Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612, 623C-G per Stephenson LJ, and Clark v Oxfordshire Health Authority [1998] IRLR 125, 128 per Sir Christopher Slade, at paragraph 22).

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.

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.

As Mrs Carmichael said in her application form, "the part-time casual arrangement would suit my personal circumstances ideally!"

For all these reasons I would allow this appeal and reinstate the industrial tribunal's reserved decision of 11 September 1995.Lord Hoffmann stated, at 1233, "…the terms of the contract are a question of fact.

But when both parties are agreed about what they understood their mutual obligations (or lack of them) to be, it is a strong thing to exclude their evidence from consideration.