When is a contract not a contract?

The EAT has handed down a useful decision summarising the position as to when a tribunal is entitled to look outside the terms of written documentation to determine the terms of a contract of employment.

HHJ Richardson summarised the principles in Carmichael v National Power as follows:

• First, a Tribunal faced with a document or documents said to be contractual, must decide whether the parties intended the document or documents to be the exclusive record of the terms of their agreement.
• Secondly, this question is a question of fact for the Tribunal.
• Thirdly, if it was the parties’ intention that the document or documents should be the exclusive record of the terms of their agreement, the Tribunal is generally restricted to consideration of the documents. The meaning of the documents is a question of law, and therefore the question whether the claimant is employed under a contract of service is a question of law.
• Fourthly, if it was not the parties’ intention that the document or documents should be the exclusive record of the terms of their agreement, the Tribunal will look at other relevant materials to determine the terms of the contract. These may include oral exchanges and conduct.

See paragraphs 39 onwards of Ministry of Defence Dental Services v Kettle.