Buddy says: Tribunals should always commence their analysis of employee status by deciding whether it was the intention of the parties, objectively ascertained, that all the terms of the contract should be contained in the contractual documents. However even where a detailed contract is signed, there is no absolute rule that the parties must be taken to have intended that all the terms of the contract should be contained in the written agreement. This will not be taken to have been their intention where the contract is clearly a sham or where it has been varied. However, this will also not be taken to have been their intention where the written agreement mis-states key features of what the parties have agreed by reason of misrepresentation or mistake.

Employer information: The question of whether a person is an employee or self-employed is, for most purposes, determined by reference to the contract under which they work. There have been many cases on this point, and significantly in the Court of Appeal in Carmichael v National Power plc ([2000] IRLR 42), held that, in establishing the terms of agreement between the parties, the tribunal should be able to look outside of the contract at the "overall factual matrix". However, in Real Time Civil Engineering Ltd v Callaghan, (UKEAT/0156/05/ZT), the EAT found that a tribunal should not be permitted to look beyond a contractual term to the reality of the situation, unless the term had either been varied or was a sham.

This point was reconsidered in the recent case of Ministry of Defence HQ Defence Dental Service v Kettle (UKEAT/0308/06/LA), and the EAT produced useful guidance on this issue. The case involved a MOD orthodontist who was engaged for 5 years under a self employed contract. The tribunal found that, although there were self-employed indicators in the case (for example, the fact that Dr Kettle paid her own tax and took out her own insurance), key employment factors were satisfied as there was mutuality of obligation, control and personal service. Accordingly Dr Kettle was found to be an employee.

The MOD argued that the tribunal had erred in law in looking beyond the terms of the contractual documents to determine employment status. The EAT disagreed with the MOD's submissions and found that it was appropriate for the tribunal to have looked "outside the four corners" of the contractual documentation in determining Dr Kettle's employment status. It gave the following useful guidance to tribunals concerning the circumstances in which they can look beyond the terms of contractual documentation when assessing employment status:

• Did the parties intend the document(s) to be the exclusive record of the terms of their agreement?
• If the tribunal finds (as a matter of fact) that this was the parties' intention, it will generally be restricted to the terms of the contractual documentation in determining whether the individual was an employee.
• If, however, the tribunal finds (as a matter of fact) that it was not the parties' intention that the documents should be an exclusive record of their agreement, it may look at other relevant material (including oral exchanges and conduct) to determine employment status.

In MOD v Kettle the tribunal had found that the MOD had used a form of contract containing certain provisions which were inappropriate to the terms (and the legal relationship) that the parties had intended to create. The EAT concluded that the tribunal was therefore entitled to look at the overall picture to determine Dr Kettle's status.