Contract of Employment Flashcards
s 230(1) ERA 1996
definition of employee - “an employee means an individual working under a contract of employment”.
Contract of employment can be express/implied, oral or in writing etc.
s 230(3) ERA 1996
definition of worker - “worker is an individual under a contract of employment, OR any other contract whereby the individual undertakes to perform personal work or services for another party to the contract whose status is not a client/customer.
s 83(2) Equality Act 2010
contracts for personal execution of work - “employment means employment UNDER a contract of employment, a contract of apprenticeship or a contract personally to do work.”
Jivraj v Hashwani
SC held that arbitrators were genuinely self-employed and thus fell outside of the scope of anti-discrimination protection under s 83(2) EqA 2010. Emphasis was on the word ‘under’ in s 83(2) - has to be an element of subordination for the broader category of contract for personal execution of work to apply.
Lane v Shire Roofing Company
Henry LJ said that if the employer exercises a great degree of control over the employee, then there is a contract of employment. This includes control over who sets work, how the work must be done, and what equipment used - if employer sets these = contract of employment.
Market Investigations v Minister of Social Security
test for contract of employment looking at whether the individual is performing the work as part of the business, or of his own account as an independent contractor. If he has taken financial risk, has opportunity to profit from sound management and is responsible for management of his work = employee.
O’Kelly v Trustehouse Forte
mutuality of obligations test first set out. If there is an obligation on the employer to provide work, and an obligation on the employee to accept work, then there is a contract of employment.
James v Greenwich LBC
Elias J tightened the mutuality of obligations test - appears to becoming more narrow in recent years, so it is harder to qualify as an employee. Elias J said there is a contract of employment if there is a mutuality of obligations AND the employer has sufficient control over the employee.
Stringfellow Restaurants v Quashie
Elias LJ stated that control is NOT the only additional issue in deciding whether there is a contract of employment. Even where there is mutuality of obligations and strong degree of control, ET may use other factors to conclude there is not a contract of employment.
No contract of employment in this case despite strong employer control over lapdancer, because she was paid by clients and paid her own tax etc. - Elias LJ used other test under business risk to determine no contract of employment.
Secretary of State for Justice v Windle & Arada
Where the work is too intermittent in nature, this can demonstrate that there was no mutuality of obligations. Independent nature of assignments in this case meant that there was not sufficient mutuality for discrete contracts of employment.
Underhill LJ - courts can look outside the employment period to determine the relationship within the employment period.
Nethermere Ltd v Gardiner
C worked at home sewing trousers for the company. No fixed hours of work or obligation to take on fixed work. CA held that there was an umbrella contract for the whole period (including intermittent work periods) of work since there was evidence that, in practice, there was a mutuality of obligations, even though the timings and quantities were flexible.
Carmichael v National Power plc
Courts are generally unlikely to find an umbrella contract unless there was a genuine mutuality of obligations on proper construction of the contract. Tour guides did not have to accept work so no mutuality.
Criticism = focuses too much on the written terms of the agreement and not practice. Employer did not look outside of pool of tour guides and it was their principal source of income.
Autoclenz v Belcher
Court may be willing to find that the written terms of the contract were a sham and thus can be disregarded, if they do not reflect the true relationship between the parties.
Contract is primary source in determining employment status but tribunal will look at the substance of the relationship also.
Contract stated the car cleaners were independent contractors, responsible for own taxes etc. In practice, the car cleaners used the firm’s uniform and equipment and obeyed instructions from the manager - so court found there was a sham contract and they were employees.
Protectacoat Firthglow
CA held that tribunals must first look at written documentation to determine worker’s employment status. However, if evidence does not support the terms of the contract court can find a sham contract and disregard its terms.
It was clear that the claimant was an employee and signed a partnership contract purporting to not make him an employee, even though he was not told what the contents of the document were.
Clyde and Co v Bates van Winkelhof
However, regarding the scope of contract for the personal execution of work under s 83(2), Lady Hale said that subordination is not a freestanding characteristic of being a worker. Partner fell within the scope of s 83(2) even though he was not an employee (since he was not genuinely self-employed).
