Employment Relationship+Non-standard Work Flashcards
mutuality of obligations test - to be an employee there needs to be an obligation on the employer to provide work and the employee has to perform the work for some remuneration.
Carmichael v National Power plc [2000]
more flexible ‘control’ test for definition of an employee under s.230(1) ERA
White v Troutbeck [2013] per Richardson J - “the question is not by whom day-to-day control was exercised but with whom and to what extent the ultimate right of control resided”
UK statutory protection provided for agency workers which includes limited rights of equal treatment and prevention of abuse of agency workers
The Agency Workers Regulations 2010
Leading case on agency workers - they cannot be “employees in disguise”.
Can only imply a contract between the agency worker and the end user where the ‘business necessity’ test is satisfied.
James v LB Greenwich [2008]
Qualifying period for unfair dismissal
s.108(1) ERA - 2 years
Contemporary theme which is increasingly transferring the risk from the employer to the employee - blurring the lines between employment and self-employment
Demutualisation
Contemporary theme which describes the shift from collective representation e.g. TUs
Individualism
Case which caused the removal of ET fees
UNISON (brought judicial review) [2017] per Lord Reed and Lady Hale
5 examples of deregulatory/weakening of employment protection
- extending the qualifying period for UD from 1 to 2 yrs.
- introduction of “employee shareholders” from 2013
- limited TU rights as a result of Trade Union Act 2016
- Restricting vicarious liability claims in equality cases (only have to take reasonable steps e.g. have a policy)
- capping compensation awards by ETs
examples of extensions to employment protection
- more flexible parental leave and pay
- increasing the minimum wage in 2016 - now the national living wage for over 25s
- banning of exclusivity clauses in zero hour contracts
Statutory definition of employee and worker
s.230(1) ERA and s.230(3) ERA respectively
employment status in Equality Law
s.83(2)(a) EA - have to be under a contract personally to do work
NB - this definition is similar to worker in s.230(3)(b) ERA - so isn’t just employees
Rights only available to employees
- Unfair Dismissal (after 2yrs)
- Redundancy Pay
- Maternity/Paternity Pay
Protection offered to both employees and workers
- Equality Law
2. National Minimum Wage
Three common law tests to determine whether someone has employee status
- control test
- risk test
- mutuality of obligations
common law ‘control’ test to define employee status
Yewens v Noakes [1880] confirmed in Ready Mixed Concrete [1968] - idea of an element of subordination
Integration test - If the ‘control’ test for the common law definition of employee isn’t passed it is sufficient to show a certain level of integration
Stevenson, Jordan and Harrison [1952] - question of whether they’re an ‘integral part of the business’, but remember this test isn’t useful for clarifying the status of non-standard workers
Most recent case of the application of the ‘risk’ test to define employee status
Stringfellows v Quashie - was self-employed because she paid the club to be provided with the opportunity to earn money by dancing with clients
Wrong label cases which developed the common law test of ‘mutuality of obligations’ to define employee status
Kalwak [2008] - strict
then Szilagyi [2009]
then Autoclenz [2011]
Definition of ‘mutuality of obligations’
an ongoing contractual nexus or global contract with the employer - this distinguishes between employees and workers by looking at the ‘true’ relationship of the parties
Case which held that having a ‘zero hour contract’ doesn’t mean you automatically fail the mutuality of obligations test if you still have a set working pattern you have to follow
Pulse Healthcare [2012] - zero hour workers were found on the facts to be ‘employees’ because even if people had specific shifts there were mutual obligations for the delivery of the whole care package on an ongoing basis inc. cover for holidays and sickness
General definition for an employee
contract of employment based on mutual obligations
General definition for worker
Quasi-dependent. A contract to perform work or services personally for another based on dependency, can’t be a client or customer
General definition of self-employed
contract for services based on independence
Wrong label case which applied the strict test for ‘mutuality of obligations’
Kalwak [2008] - per Elias J dissenting - “both parties [must have intended the term] to misrepresent their true actual relationship”.
Wrong label case which applied a less strict test for mutuality of obligations
Szilagyi [2009] - per Smith LJ - “the court must look a the substance not the label” i.e. they must decide if the written document reflects the true ongoing employment relationship, no requirement of intent. This is the contractual approach
Wrong label case which applied the least strict test for mutuality of obligations which is followed today - distinguishing between employees and workers
Autoclenz v Belcher [2011] - per Lord Clarke - “[T]he relative bargaining power of the parties must be taken into account in deciding…what was agreed and the true agreement” i.e. written agreement is only part of it
Applied the ‘true agreement’ approach from Autoclenz [2011] in the context of ‘worker’ status
Pimlico Plumbers [2018]
Case which developed the factor, developed from Autoclenz, that the ‘worker’ concept can’t include someone with status of a client or customer
Hospital Medical Group v Westwood [2012] - doctor who provided an exclusive hair restoration clinic on the side who was found to be a worker
3 indicators of a ‘worker’ from Autoclenz v Belcher [2011]
- individual who has entered into or worked under a contract with another party for work or services
- performs the work personally
- doesn’t have the status of a client or customer of the individual
Held there is no requirement of subordination to have ‘worker’ status
Bates van Winkelhof [2014] - partner in law firm was found to be a worker
and Pimlico Plumbers [2018]
Each individual assignment is part of an umbrella contract between the individual and the company
Uber [2018]
Example of case where individuals weren’t found to be workers
Mingley v Pennock [2004] - taxi drivers that take their own fares
s.211(1) ERA - calculating continuity of employment case
Cornwall CC v Prater [2006]
s.211(1)(a) ERA - Transferring to another branch of a shop is deemed to be a contract with the same employer just at a different store and so counts as continuous employment for the purposes of qualifying periods
Madhouse [2013] - weeks from working in both locations could count towards the qualifying period for his unfair dismissal claim
statutory exceptions for weeks of absence from employment i.e. they don’t break continuity of employment and do count towards QPs
s.212(3)(a-c) ERA
Any agreement that prevents or limits a person from bringing any proceedings before an ET is void
s.203 ERA
case which shows strict intepretation of s.212(3)(c) ERA for breaks counting a continuous employment because of an arrangement or custom
Ker v M&S - career break scheme so she could leave and raise her child, no agreement as there was no meeting of the minds and no mutual expectation of continuity
statutory authority for the fact that employment is presumed continuous unless contrary is shown i.e. burden of proof is on the employer
s.210(5) ERA
definition of employee shareholder - category of employees in which employees can voluntarily trade off some of their rights in return for shares
s.205A ERA
protection from suffering detriment because of not accepting an offer to be an employee shareholder
s.47G ERA and s.104G ERA
doesn’t matter if the individual was originally hired through an agency if they’re being treated as if they were directly hired by the employer then they should have the benefits
Motorola - Motorola had indirect control of the worker (so they were the employer) so was able to bring a UD claim
Distinguished Muscat on its facts. Mere passage of time doesn’t alone lead to an implied contract of employment for agency workers, need mutuality of obligations and control
James v LB Greenwich (more restrictive approach) –> the courts were reluctant to make changes to social policy
Distinguished Muscat [2006] on its facts. Mere passage of time doesn’t alone lead to an implied contract of employment for agency workers, need mutuality of obligations and control
James v LB Greenwich (more restrictive approach)
A week in which there is no contract of employment in force can still count towards continuity of employment if there is an absence caused by a temporary cessation of work (s.212 ERA)
Ford v Warwickshire CC [1983] -Where a teacher who had a summer break still had employment continuity
Emphasised the need for proper enforcement of employee rights, given the inherent imbalance of power.
UNISON per Judge Eady
Emphasised the need for proper enforcement of employee rights, given the inherent imbalance of power. Inequality in the wage/work bargain
UNISON v Lord Chancellor [2017] per Lord Reed
Two late 20thC judgments which show how the mutuality of obligations test has been expanded to cases of ‘casual workers’ - strict approach
- O’Kelly
2. Carmichael
Example of workers being able to turn down work, but under a preferential list system from which they could be removed
O’Kelly - waiters were merely independent contractors
Who holds the right to request flexible working hours?
only employees
More generous approach to mutuality of obligations test - it is enough to constitute a contract of employment if when the employer offers work, it must be accepted
Wilson v Circular Distributors [2006]
E McGaughey’s opinion on zero hour contracts
His 2014 article - “Are Zero Hours Contracts Lawful?
relying on the ‘true agreement’ test from Autoclenz, he suggests that express contract terms referring to ‘zero hours’ are one-sided and may ‘lie in the shadowy recess of borderline legality’”
Example of ‘zero hours’ clause being a sham
Pulse Healthcare
Statutory definition of a zero hour contract
s.27A(1) ERA 1996 - broad enough to include workers and employees
NB - there is a worry that including the definition of an exclusivity clause in this section will cause more ‘rogue employers’ to find a way to evade the exclusivity ban
Four proposals for reform of zero hour contracts in J Kenner’s article
- obligation on employers to issue a written statement of contract particulars at commencement of employment (like s.1 ERA) inc. when the worker will be notified about available work
- compensate workers if they arrive to work to find there is none available (Scottish proposal)
- employer requirement to give a minimum notice periods of work
- New Zealand model - guaranteed hours where worker has to be available, worker can refuse extra hours, prohibits ZHCs without a guarantee of work
Three suggestions for reform of zero hour contracts in Pickavance Report (labour opposition government)
- employers only being able to require availability in direct proportion to the amount of work they offer (Pickavance Report)
- worker’s right to request a change of contract after 6 months of working ‘regular hours’ - but employer can justify refusing
- after 12 months continuous employment on regular hours automatically have a right to a contract with minimum hours
Judy Fudge’s opinion on modern labour law
The most important shift in the discipline of labour law has been towards individualisation
inequality of the employment relationship at the point when the contract is agreed
wage/work bargain
Case which shows the limitations of judicial interpretations of terms
Stringfellows v Quashie - court found that a ‘precarious’ worker (sex industry) with absence of a direct wage/work bargain between the parties meant the term ‘self-employed’ represented the true agreement despite strong evidence of control and subordination
Case which shows a wide reading of s.211(1)(a) ERA for continuous employment
Madhouse - was terminated when store shut down but accepted an offer to work at their other store in sheffield a week later. was dismissed from the sheffield store and was held could claim UD as there was continuity between the two employments
Main case of continuity of employment under s.210-212 ERA
Prater - teacher who had a gap between the teaching of kids with special needs was held to just be temporary cessations of work rather than a break in employment
Statutory provision which prevents an agreement between the parties to restrict a worker’s rights under the ERA
s.203 ERA - agreement will be held void e.g. you can agree to break continuity
