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In the case of Ahmed v Wincanton Group Ltd UKEAT/0115/13/DM the appeal was allowed and remitted to a fresh Tribunal for a re-hearing.

In this case, from the outset of his employment, Mr Ahmed was given a document which set out his terms of engagement. The document said “This agreement contains details of the terms of your engagement as a Retail Solutions worker. Please note that the terms of this agreement are not intended to create a contract of employment between yourself and the Company. The Company is under no obligation to offer you work assignments under this agreement, nor are you under any obligation to accept any work assignments that are offered to you. IF you do accept a work assignment offered to you by the Company, however, then you will be deemed to be an employee during the period of the assignment and the following terms will apply […].”

Another useful (or not so useful clause) reads [in relation to Working Time Regulations] “You are free to carry out work for other companies and organizations during your engagement […] save for period during which you have agreed to carry out an assignment for the Company or are on a period of agreed statutory or annual leave. We do require you, however, to notify us…” 

The EAT allowed the appeal citing that the Tribunal had not carried out a proper analysis of all the terms of the written contract or how the parties operated it in practice and what the true agreement between the parties was.

Moral of this story is best taken from Autoclenz Limited v Belcher and others [36] “Employment judges have a good knowledge of the world of work and a sense, derived from experience, of what is real there and what is window-dressing

Full transcript of the judgement can be be read here: http://www.employmentcasesupdate.co.uk/site.aspx?i=ed17469

Related case: Autoclenz case [2011] UKSC 41