Mutuality of obligation


There must be mutuality of obligation in order to have any contract at all – whether as an employee, a worker or a self-employed business. “Mutuality of obligation” simply means a legal obligation on someone to carry out some work in return for some (usually money) payment. A genuine volunteer is neither an employee nor a worker, because there is no legal contract (X (Appellant) v Mid Sussex Citizens Advice Bureau [2012] UKSC 59). (See Volunteers, page 56). This also explains why interns who are genuine volunteers are neither workers nor employees (see: Interns, page 56). 



The obligation is only to do “some work”. Having a contractual right to refuse work or to choose to withhold work does not mean there is no mutuality of obligation, as long as there is some obligation to work and some obligation to provide or pay for that work (Cotswold Developments Construction Ltd v Williams [2006] IRLR 181). There can still be mutuality of obligation even if the contract says you are obliged to do work only if there is work available (Wilson v Circular Distributors [2006] IRLR 38).



Being completely free to choose whether to accept each new assignment is likely to point towards genuine self-employment, but a tribunal must always look at all the surrounding circumstances, including the extent to which you are integrated into the organisation and operating under its direction and control (Secretary of State for Justice v Windle & Arada [2016] EWCA Civ 459).


Whatever any written wording says, the tribunal must always look the surrounding circumstances to work out someone’s true employment status.