UT/2023/000049 - [2024] UKUT 00233 (TCC)

Mr Firth argued that the FTT erred in law in concluding that (1) workers had an unfettered right to refuse any assignment, and (2) there was no obligation on Mainpay to pay for a minimum number of hours of work if that work was not offered by Mainpay. These errors, said Mr Firth, led to the FTT erroneously concluding that there was no mutuality of obligation for employment purposes during the gaps between assignments.

In relation to the obligation on a worker to consider a proposed assignment, Mr Firth argued that the FTT was wrong to conclude that this obligation was not one that had to be performed in good faith. He relied in this respect on Brogden v Investec Bank plc [2014] EWHC 2785 (Comm) (“Brogden”) and Braganza v BP Shipping Limited [2015] UKSC 17 (“Braganza”). The principle that a contractual obligation must be exercised in good faith, said Mr Firth, applies to all contractual discretions unless there is clear language to the contrary.

In relation to the obligation on Mainpay, Mr Firth argued that there was in fact an obligation to pay for the stated minimum number of hours of work, because if the obligation to offer the stated minimum of hours was breached, then Mainpay would have to pay damages for that breach, and that does not need to be spelt out in the contract.

Mr Firth said that the implied requirement for employees to consider proposed assignments in good faith combined with the effective obligation on Mainpay to pay for a minimum number of hours of work meant that the position under the 2013 Contract was the same as that in Gizbert. The necessary mutuality of obligation therefore existed and the FTT was wrong to conclude otherwise.