Basics of Workers and Employees Flashcards
What does Freund call an employment contract
Kahn-Freund : contract of employment is in its inception ‘an act of submission’, in its operation ‘a condition of subordination’.
Reasons for rights
“1. against unequal bargaining power
- Against Bureaucratic abuse
- Protect HR -> eg: discriminaiton, NMW
- O’Kelly v Trusthouse Forte (UK)
Court showed no anxiety over the fact that their decision that a group of ‘regular casual’ waiters were independent contractors would deprive the workers of any opportunity to challenge their dismissal”
What is an employee?
“S230 ERA
-> contract of employment -> Common law (Ready mixed concrete)
Hall v Lorimer (Multiple Test)
- Summarised in (Ready Mixed Concrete) + (Autoclenz)
Necessary Elements
- Control
- Personal service
- terms consistent with other employment contracts”
- mutuality of obligation
What is an employment contract?
“Sindicatul Păstorul cel Bun v Romania (EU)
First, it found that the existence of an employment relationship should be determined by a consideration of the facts, rather than how the relationships is characterised by any agreement between the parties.
VS
Sharpe v Bishop of Worcester (UK)
Lady Justice Arden’s decision was the lack of any intention to create legal relations + not paid a wage directly from his employer and that the Bishop, his ‘manager’, had very few disciplinary processes easily available to him.
ALSO: ready mixed concrete
Ready Mixed Concrete
- Provision of personal services
- control of sufficient degree
- other prov. consistent w employment contract
(after: mutuality of obligation)”
Employee Test: Control
“White v Troutbeck: Residual RIGHT to control enough (no need daily use)
Employee Test: Personal service
“Must be unrestricted right
deliveroo) -> Pimlico test not accepted (Dominant feature
- issue: gig economy”
Employee test; Mutuality
”- employer give work, employee accept.
- Issue: ZHC workers
- Carmichael: orthodox pov that mutuality created with each assignment”
What is a worker?
“s230 ERA
1. Contract 2. Personal service 3. Not client/customer
re 3:
- westwood: integration could be worker
- Bates: subordination not necessary.
OR
s83 EQA (jivraj)”
Why do people want to be recognised as a worker?
substantive rights - holidays, minimum wage, protection from discrimination, etc.- that come with the status.
And if to enforce those rights they are still deterred by massive fees then we haven’t taken things much further.
- Government accepts that the fee regime has caused the dramatic decline in tribunal cases
= Should eliminate fees (Taylor review doesn’t touch on this)”
If not worker: can be victimised, can be sued for strike law, trade union victimisation, competition law (Deliveroo judgement far reaching interference w freedom of association)
