Nethermere (St Neots) Ltd v Gardiner And Another [1984] ICR 612 is a UK labour law case in the Court of Appeal in the field of home work and vulnerable workers.

Many labour and employment rights, such as unfair dismissal,[1] in Britain depend on one's status as an "employee" rather than being "self-employed", or some other "worker".

For the later history, Carmichael v National Power plc [1999] AC 1226, Tony Blair's old pupil master, now the Lord Chancellor Derry Irvine, reconfigured "mutuality of obligation" to mean an expressed continuing duty to provide work.

Fourthly, Mr. Blair contends that the industrial tribunal misunderstood the ratio of the decision in Airfix Footwear Ltd v Cope [1978] ICR 1210.

He submits that upon this approach, the true and only inference which can be drawn in the present case is that the applicants were employed under a contract of service.

He submits that the employers' contention that once it is found that there is no mutual obligation there cannot be a contract of service even though there may be factors pointing strongly to the opposite conclusion is contrary to authority and wrong.

But a similar view to that of Stephenson LJ was stated by MacKenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, 512, 513.

It is now convenient to consider whether the industrial tribunal in fact found that the employers had no obligation to provide work or the applicants to perform it, which is the basis of Mr. Blair's second and main contention.

It is true that grammatically the finding appears to relate to the freedom to take time off but we think that the clear intention of the tribunal was to accept all the matters of evidence reviewed in paragraph 8.

If we are wrong in that conclusion, the difficulty is resolved by the opening words of paragraph 11: "Those are the facts on which we have to determine whether or not these ladies are employees."

It is convenient also at this stage to consider Mr. Blair's submission that the tribunal failed, when deciding the question which they asked themselves (whether the applicants were in business on their own account), to state what factors led them to that conclusion.

Although we are taking the point somewhat out of order, we shall now consider the submission that the industrial tribunal misunderstood the ratio in Airfix Footwear Ltd v Cope [1978] ICR 1210.

We do not read the judgment as establishing the proposition that before a contract of service can exist there must be the mutual obligations for which Mr. Blair contends.

We do not accept that the Mailway case is authority for the proposition as framed by Mr. Blair, that once it is found that there is no obligation on either side it is impossible to conclude that there was a contract of service.

Young & Woods Ltd v West [1980] IRLR 201 shows to our satisfaction that all the indicia have to be considered, leaving perhaps as fundamental the test whether the applicant was in business on his or her own account.

They are impressed by these factors (not expressed in any descending order of importance) when asking themselves the question whether the applicants were in business on their own account: Thus, the lay members, having looked at all these facts and addressed their minds, as did the industrial tribunal, to the Court of Appeal judgment in Young & Woods Ltd v West have answered "No" to the question: "Were the applicants in business on their own account?"

It is quite true that the applicants took no financial risk and that they had no responsibility for investment and management, but they were engaged in semi-skilled and simple work and such considerations seem to be inappropriate in the circumstances.

A contrary view might lead to the conclusion that all semi-skilled workers working at home in their own time and when they chose are employed under a contract of service.

In the result, although there are factors which can validly be taken into account (for example, the provision of equipment), the inference which should be drawn is that this was not a contract of service.

For the obligation required of an employer we were referred to old cases where the courts had held that justices had jurisdiction to convict and punish workmen for breaches of contracts to serve masters under the statute 4 Geo.

But later cases have shown that the normal rule is that a contract of employment does not oblige the master to provide the servant with work in addition to wages: Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647, 650, per Asquith J.

That was expanded by Mackenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, 515: "A contract of service exists if these three conditions are fulfilled.

(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.

The position of the applicants would have been that of the casual "regulars" as found by the industrial tribunal in O'Kelly v Trusthouse Forte Plc [1983] I.C.R.

But having looked at the industrial tribunal's decision I conclude that it did not involve a complete rejection of mutual obligations but must be taken to have followed Airfix Footwear Ltd v Cope [1978] I.C.R.

I think that means evidence at least of an obligation to accept work offered by the company, and on the authority of Devonald v. Rosser & Sons [1906] 2 K.B.

Both Mrs. Taverna and Mrs. Gardiner submitted weekly “time sheets” regularly to be paid the same rate as the workers in the factory.

The work they did was “an essential part of the production,” and it was the “van driver's duty to be as fair as he could” — presumably in distributing the 5,000 trousers among the 11 home workers.

There emerges from the evidence a picture of the applicants' doing the same work for the same rate as the employees in the factory but in their own homes — and in their own time — for the convenience of the workers and the company.