11 Employment, Data Protection and Intellectual Property Law Flashcards
What are the two types of working relationship?
Employee - contract of service
Self employed - contract for services
How will the court determine whether someone is self employed?
They’ll look at the substance of the relationship and make a decision.
How will the court determine the substance of the relationship and determine whether someone is employed or self employed?
Use a multiple test looking at the overall reality of the situation and consider the 3 factors that would be present for a contract of service.
What are the 3 factors that must be present for a contract of service? I’m
- Contract must specify who will be performing the work; will be you unless you’re ill or have express permission to delegate.
- Employer exercised control of how you perform your role.
- Mutuality of obligations - employer must be obliged to provide work (if not then payment) and employee should be obliged to take said work.
If the 3 factors for contract of service are all present, does this mean that they are classed as employed?
No, it would indicate this is the case but the court will consider further factors when making their decision.
What factors other than the 3 essential ones will the court consider when determining if someone is an employee?
- Freedom to delegate.
- Employer provides tools/equipment.
- Support staff.
- PAYE or SA?
- Financial risk.
- Level of exclusivity.
Why is it important that the courts can determine whether someone is self employed or employed?
- Employees receive statutory protection.
- There implied terms in a contact of employment.
- Vicarious liability - employers are responsible for their employees actions but not independent contractors.
- On insolvency employees are preferential creditors.
- Employers must pay PAYE.
- Employees are entitled to state benefits like sick pay.
