This has really got me thinking now...
In both the above ET and EAT cases, the claimants were ACF AIs - and therefore not subject to Service Law, since they are not reservists.
Commissioned CFAVs are - currently, as reservists - subject to Service Law & QRs when on duty, and you have to be on duty (and thus subject to Service Law & QRs) to be "paid". In the cases in question, there was no mutuality of obligation because of the "if" question; they were paid if they did the work, and if there was eligible work they would be paid (is how I read it). The ACF AIs in question could not be sanctioned if they did not perform the work, even if they had already committed to it - they simply would not be paid.
How does Officers being subject to Service Law when on duty under the Armed Forces Act 2006, and QRs affect mutuality of obligation? Could the liability/fact that one could - legally - be disciplined (up to and including CM) create a mutuality of obligation, once remunerated work is offered and or performed under these conditions?
I wonder if the definition of when one is on duty - and thus when subject to Service Law & QRs - is vague enough to create an obligation (through being subject to the possible sanctions of Service Law once work has commenced - ie, once started, must finish) duty of care etc. demands, for example, that an OIC/Activity Cdr cannot simply walk away from an activity once commenced, and a serious breach would mean a sanction (in extremis, potentially under Service Law/QRs) ...so, when on paid duty therefore, do the TCOS of commissioned officers - through a reservist legal status, subject to Service Law/QRs when on duty - create a mutuality of obligation?
Have there been any ET or EAT judgement where the claimant is a commissioned Officer?
If this is the crux of the matter, VA is safe when we're "commissioned civvies" under the CFC, since we will not be a reservist/subject to Service Law & QRs; thus no mutuality of obligation, thus no status of employment.