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Employment Law > Employment Relationship+Non-standard Work > Flashcards

Employment Relationship+Non-standard Work Flashcards

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1
Q

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.

A

Carmichael v National Power plc [2000]

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2
Q

more flexible ‘control’ test for definition of an employee under s.230(1) ERA

A

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”

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3
Q

UK statutory protection provided for agency workers which includes limited rights of equal treatment and prevention of abuse of agency workers

A

The Agency Workers Regulations 2010

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4
Q

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.

A

James v LB Greenwich [2008]

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5
Q

Qualifying period for unfair dismissal

A

s.108(1) ERA - 2 years

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6
Q

Contemporary theme which is increasingly transferring the risk from the employer to the employee - blurring the lines between employment and self-employment

A

Demutualisation

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7
Q

Contemporary theme which describes the shift from collective representation e.g. TUs

A

Individualism

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8
Q

Case which caused the removal of ET fees

A

UNISON (brought judicial review) [2017] per Lord Reed and Lady Hale

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9
Q

5 examples of deregulatory/weakening of employment protection

A
  1. extending the qualifying period for UD from 1 to 2 yrs.
  2. introduction of “employee shareholders” from 2013
  3. limited TU rights as a result of Trade Union Act 2016
  4. Restricting vicarious liability claims in equality cases (only have to take reasonable steps e.g. have a policy)
  5. capping compensation awards by ETs
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10
Q

examples of extensions to employment protection

A
  1. more flexible parental leave and pay
  2. increasing the minimum wage in 2016 - now the national living wage for over 25s
  3. banning of exclusivity clauses in zero hour contracts
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11
Q

Statutory definition of employee and worker

A

s.230(1) ERA and s.230(3) ERA respectively

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12
Q

employment status in Equality Law

A

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

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13
Q

Rights only available to employees

A
  1. Unfair Dismissal (after 2yrs)
  2. Redundancy Pay
  3. Maternity/Paternity Pay
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14
Q

Protection offered to both employees and workers

A
  1. Equality Law

2. National Minimum Wage

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15
Q

Three common law tests to determine whether someone has employee status

A
  1. control test
  2. risk test
  3. mutuality of obligations
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16
Q

common law ‘control’ test to define employee status

A

Yewens v Noakes [1880] confirmed in Ready Mixed Concrete [1968] - idea of an element of subordination

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17
Q

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

A

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

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18
Q

Most recent case of the application of the ‘risk’ test to define employee status

A

Stringfellows v Quashie - was self-employed because she paid the club to be provided with the opportunity to earn money by dancing with clients

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19
Q

Wrong label cases which developed the common law test of ‘mutuality of obligations’ to define employee status

A

Kalwak [2008] - strict
then Szilagyi [2009]
then Autoclenz [2011]

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20
Q

Definition of ‘mutuality of obligations’

A

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

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21
Q

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

A

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

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22
Q

General definition for an employee

A

contract of employment based on mutual obligations

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23
Q

General definition for worker

A

Quasi-dependent. A contract to perform work or services personally for another based on dependency, can’t be a client or customer

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24
Q

General definition of self-employed

A

contract for services based on independence

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25
Q

Wrong label case which applied the strict test for ‘mutuality of obligations’

A

Kalwak [2008] - per Elias J dissenting - “both parties [must have intended the term] to misrepresent their true actual relationship”.

26
Q

Wrong label case which applied a less strict test for mutuality of obligations

A

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

27
Q

Wrong label case which applied the least strict test for mutuality of obligations which is followed today - distinguishing between employees and workers

A

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

28
Q

Applied the ‘true agreement’ approach from Autoclenz [2011] in the context of ‘worker’ status

A

Pimlico Plumbers [2018]

29
Q

Case which developed the factor, developed from Autoclenz, that the ‘worker’ concept can’t include someone with status of a client or customer

A

Hospital Medical Group v Westwood [2012] - doctor who provided an exclusive hair restoration clinic on the side who was found to be a worker

30
Q

3 indicators of a ‘worker’ from Autoclenz v Belcher [2011]

A
  1. individual who has entered into or worked under a contract with another party for work or services
  2. performs the work personally
  3. doesn’t have the status of a client or customer of the individual
31
Q

Held there is no requirement of subordination to have ‘worker’ status

A

Bates van Winkelhof [2014] - partner in law firm was found to be a worker
and Pimlico Plumbers [2018]

32
Q

Each individual assignment is part of an umbrella contract between the individual and the company

A

Uber [2018]

33
Q

Example of case where individuals weren’t found to be workers

A

Mingley v Pennock [2004] - taxi drivers that take their own fares

34
Q

s.211(1) ERA - calculating continuity of employment case

A

Cornwall CC v Prater [2006]

35
Q

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

A

Madhouse [2013] - weeks from working in both locations could count towards the qualifying period for his unfair dismissal claim

36
Q

statutory exceptions for weeks of absence from employment i.e. they don’t break continuity of employment and do count towards QPs

A

s.212(3)(a-c) ERA

37
Q

Any agreement that prevents or limits a person from bringing any proceedings before an ET is void

A

s.203 ERA

38
Q

case which shows strict intepretation of s.212(3)(c) ERA for breaks counting a continuous employment because of an arrangement or custom

A

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

39
Q

statutory authority for the fact that employment is presumed continuous unless contrary is shown i.e. burden of proof is on the employer

A

s.210(5) ERA

40
Q

definition of employee shareholder - category of employees in which employees can voluntarily trade off some of their rights in return for shares

A

s.205A ERA

41
Q

protection from suffering detriment because of not accepting an offer to be an employee shareholder

A

s.47G ERA and s.104G ERA

42
Q

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

A

Motorola - Motorola had indirect control of the worker (so they were the employer) so was able to bring a UD claim

43
Q

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

A

James v LB Greenwich (more restrictive approach) –> the courts were reluctant to make changes to social policy

44
Q

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

A

James v LB Greenwich (more restrictive approach)

45
Q

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)

A

Ford v Warwickshire CC [1983] -Where a teacher who had a summer break still had employment continuity

46
Q

Emphasised the need for proper enforcement of employee rights, given the inherent imbalance of power.

A

UNISON per Judge Eady

47
Q

Emphasised the need for proper enforcement of employee rights, given the inherent imbalance of power. Inequality in the wage/work bargain

A

UNISON v Lord Chancellor [2017] per Lord Reed

48
Q

Two late 20thC judgments which show how the mutuality of obligations test has been expanded to cases of ‘casual workers’ - strict approach

A
  1. O’Kelly

2. Carmichael

49
Q

Example of workers being able to turn down work, but under a preferential list system from which they could be removed

A

O’Kelly - waiters were merely independent contractors

50
Q

Who holds the right to request flexible working hours?

A

only employees

51
Q

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

A

Wilson v Circular Distributors [2006]

52
Q

E McGaughey’s opinion on zero hour contracts

A

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’”

53
Q

Example of ‘zero hours’ clause being a sham

A

Pulse Healthcare

54
Q

Statutory definition of a zero hour contract

A

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

55
Q

Four proposals for reform of zero hour contracts in J Kenner’s article

A
  1. 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
  2. compensate workers if they arrive to work to find there is none available (Scottish proposal)
  3. employer requirement to give a minimum notice periods of work
  4. New Zealand model - guaranteed hours where worker has to be available, worker can refuse extra hours, prohibits ZHCs without a guarantee of work
56
Q

Three suggestions for reform of zero hour contracts in Pickavance Report (labour opposition government)

A
  1. employers only being able to require availability in direct proportion to the amount of work they offer (Pickavance Report)
  2. worker’s right to request a change of contract after 6 months of working ‘regular hours’ - but employer can justify refusing
  3. after 12 months continuous employment on regular hours automatically have a right to a contract with minimum hours
57
Q

Judy Fudge’s opinion on modern labour law

A

The most important shift in the discipline of labour law has been towards individualisation

58
Q

inequality of the employment relationship at the point when the contract is agreed

A

wage/work bargain

59
Q

Case which shows the limitations of judicial interpretations of terms

A

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

60
Q

Case which shows a wide reading of s.211(1)(a) ERA for continuous employment

A

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

61
Q

Main case of continuity of employment under s.210-212 ERA

A

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

62
Q

Statutory provision which prevents an agreement between the parties to restrict a worker’s rights under the ERA

A

s.203 ERA - agreement will be held void e.g. you can agree to break continuity

Employment Law (4 decks)

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