11 Employment, Data Protection and Intellectual Property Law Flashcards

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1
Q

What are the two types of working relationship?

A

Employee - contract of service
Self employed - contract for services

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2
Q

How will the court determine whether someone is self employed?

A

They’ll look at the substance of the relationship and make a decision.

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3
Q

How will the court determine the substance of the relationship and determine whether someone is employed or self employed?

A

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.

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4
Q

What are the 3 factors that must be present for a contract of service? I’m

A
  • 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.
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5
Q

If the 3 factors for contract of service are all present, does this mean that they are classed as employed?

A

No, it would indicate this is the case but the court will consider further factors when making their decision.

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6
Q

What factors other than the 3 essential ones will the court consider when determining if someone is an employee?

A
  • Freedom to delegate.
  • Employer provides tools/equipment.
  • Support staff.
  • PAYE or SA?
  • Financial risk.
  • Level of exclusivity.
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7
Q

Why is it important that the courts can determine whether someone is self employed or employed?

A
  • 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.
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