Employment relationship SHUFFLED

Question 1

Use of s212 was illustrated in this case.

The claimant was a teacher who provided home tutoring for school pupils who were unable to attend school. She worked for the council for 10 years under a series of different assignments of varying duration.

CA held: once each individual contract was entered into and continued, the claimant was obliged to teach the particular pupil made available to her and the council was obliged to pay her for teaching that pupil; that that was sufficient mutuality of obligation, relating to the work provided and performed under the contract, to establish that each teaching engagement was a contract of service; that, if the claimant had been engaged to teach pupils in a class collectively or individually at a school under a single continuous contract, she would clearly have been employed under a contract of service, and it made no difference to the position at law that she was engaged to teach pupils individually out of school under a series of separate concurrent or successive contracts; and that, therefore, the employment tribunal had been entitled to find that the periods when the claimant was not working were temporary cessations of work within section 212(3) of the Employment Rights Act 1996 and that, accordingly, the claimant was to be regarded as an employee of the council continuously during the relevant period.

Answer 1

Cornwall CC v Prater CA

Question 2

Some people fell outside the “employee” category, so this includes people.

Answer 2

Why do we have a “worker” category?

Question 3

Zero hours contracts

Answer 3

Refers to the situation where an individual has an arrangement with an employer under which the employer does not promise any particular level of work to the individual.

Question 4

This refers to a pair of promises: a promise on the part of the employer to provide the employee with future work, and a promise on the part of the employee to accept that work when offered it. The courts have tended to use this principle (mutuality of obligations) as a test for deciding whether or not a contract of employment is present in a particular case.

Answer 4

Mutuality of obligation

Question 5

Community Dental Centres

Answer 5

dentist under contract to provide dental services under the NHS but EAT found that there was “an absence of an obligation to perform services personally” – therefore self-employed.

Not a worker

The EAT expressed surprise that the Employment Judge had on the one hand concluded that there was no mutuality of obligation when deciding the ‘employee’ question but that there was mutuality of obligation when deciding the ’worker’ question. Also, the claimant’s right not to provide dental services did not depend solely on whether he was unable to do this, but it also depended on whether he was willing to provide the services. Therefore they decided that the contract did not entail an undertaking on the claimant to do work or perform personally any work or service, and so he was not a worker.

Question 6

Established the control test, but Ready Mixed Concrete confirmed it.

Answer 6

Yewen v Noakes CA

Question 7

How is the equality act 2010 s83(2)(a) provide more protection than workers

Answer 7

1) reference to “contract personally to do word” does no include the “client or customer” exception that is applicable in the “worker” definition. This might suggest the concept might include some people who are running their own business and therefore have clients or customers, but still undertake to perform the work personally. A self employed plumber might be protected under the Equality Act 2010 definition provided that he undertook to perform the work personally. Therefore, a householder could be liable in employment law when he hires a plumber! But SC has cast doubt on this argument in Jivraj v Hashwani

Question 8

What is the control test?

Answer 8

CA in Yewen v Noakes established it, but Ready Mixed Concrete confirmed it.

Question 9

Yewen v Noakes CA

Answer 9

Established the control test, but Ready Mixed Concrete confirmed it.

Question 10

The Supreme Court has preferred Szilagyi and the dissenting judgment of Elias J in Kalwak:

car valets described in the contractual documents as ‘self-employed’ found to be employees based on an examination of all the relevant evidence, including how the parties were conducting themselves in practice and considering the inequality of bargaining power in the employment relationship.

per Lord Clarke

• The question in every case is what was the ‘true agreement’ between the parties?
• ‘… the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only part. This may be described as a purposive approach to the problem.’

Answer 10

Autoclenz v Belcher [2011] UKSC

Question 11

Market Investigations v Minister of Social Security

Answer 11

Risk test

Market Investigations [1969] per Cook J: factors suggesting a person is self-employed – ‘in business on his own account’:

Ødoes he provide his own equipment and hire his own helpers?

Øwhat degree of financial risk does he take?

Øwhat responsibility for investment and management?

Øwhat is the opportunity for profit?

Question 12

1) control
2) risk

Third overarching test of : mutuality of obligation - this helps us distinguish between an employee and a worker

Answer 12

There are three tests for detemining whether a person has a contract of employment and is therefore an employee, what are they

Question 13

Borrer

Answer 13

but case concerned a clause cutting regular hours - not a typical ZHC - :

had contract to work 48 hours, line manger was allowed to alter the working hours. They were drastically cut to around 20 hours a week – brought action to establish whether this was a breach of contract. Found he was entitled to 48 hours a week due to weaker bargaining power – employer had taken advantage o such a clause (seen as a zero hours clause) in such cases a clause is unenforceable – sufficient evidence under contract and experience of working at 48 hours a eek that the conduct demonstrated a normal expectation of a 48 hour week. Different from a case where no guaranteed hours the standard term of the cotnrac.t an exceptional case.

1. Insecurity and uncertainty of such contracts even if not exclusive.

Some suggestion that ZHCs are unlawful as unfair contract terms:

Question 14

per Lord Clarke

ØThe question in every case is what was the ‘true agreement’ between the parties?

‘… the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only part. This may be described as a purposive approach to the problem.’

Øsame test applies to sham labels in ‘worker’ cases – Pimlico Plumbers v Smith [2018] SC

Answer 14

Autoclenz v Belcher [2011] (UKSC)

Question 15

It is designed to capture the entrepreneurial nature of self-employment. The idea is that A is an employee if B takes the risk of profit and loss in their relationship.whereas if A takes that risk, he is self-employed. The test was recently use in Quashie case

Answer 15

What is the “risk” test?

Question 16

Does Autoclenz apply to workers?

Answer 16

Yes - if the individual can prove that the substitution clause in the written contract does not reflect the “true relationship” he may be able to persuade the tribunal to ignore it.

Question 17

Court has emphasised subordination in later case, it has applied the term in a flexible way which suggests that it will not prove much of an obstacle in practise. Here a claimant was a company director who was dismissed from her employment on grounds of pregnancy. She brought a claim. The court held: the application of the worker definition required a careful assessment of the context. The court suggested that it was significant for the purposes of “subordination”, that the claimant had to report on her work to the supervisory board and could be dismissed by shareholders. This suggests that the use of subordination in EU law is less about identifying employee-like relationships and more about excluding genuine self-employment from the scope of protection. On this reading, it is closer to the SC’s analysis in Bates Van Winkelhof than Jivraj

Answer 17

Danosa

Question 18

Express & Echo Publications Ltd v Tanton

Answer 18

​Personal performance

Mr Tanton contracted with the company to deliver its newspapers around Devon. A term of the contract provided: “In the event that the contractor is unable or unwilling to perform the services personally he shall arrange at his own expense entirely for another suitable person to perform the services.” The Court of Appeal held that the term defeated Mr Tanton’s claim to have been employed under a contract of service

Question 19

(archaic but a means to establish that someone was under full control of employer)

master/servant - ‘[a] servant is a person who is subject to the command of his master as to the manner in which he shall do his work’ per Bramwell LJ

Answer 19

Yewens v Nokes [1880]

Question 20

Terms in a written contract purporting to deny any of these elements may be disregarded if they do not reflect the “trust agreement” between the parties.

Answer 20

Autoclenz principle

Question 21

Saha v Viewpoint Field Services

Answer 21

Zero hour contract. No mutuality

irregular hours, no obligation to accept work = no mutuality of obligation.

Distinguished in Pulse Healthcare v Carewatch Care Services [2012]

Question 22

To an extent:

Hawaiai - substitution allowed in contract === NOT WORKER

Pimlico - distinguishes hawai because not written in contract (same as autoclenz)

Answer 22

Is substitution okay?

Question 23

Pimlico Plumbers v Smith [2018] UKSC 29 [2017] EWCA

Answer 23

Plumbers working for PP found to be workers – had an obligation of personal performance or work/services for PP, strong evidence of control by PP, worked for them - not a client or customer – subordination not essential for ‘worker’ status, could be self-employed for tax purposes and still a ‘worker’ – plumbers had an umbrella contract linking multiple assignments (similar to Uber). Substitution clause used was found to be consistent with an obligation of personal performance. This is the leading case. High level of control.

Pumpers according to manual assigned to them have to wear uniforms with Pimlico id, meant to provide services of Pimlico and prohibited from private work for clients of Pimlico under the contact. Although, not written down, it was practised that a plumber to substitute for them if they do not do a certain job on a day. No obligation to accept work when offered but would normally work 40 hours pw for Pimlico. These factors suggest they are not employees.

Held: the plumers were workers because they had a contract to personally perform work for Pimlico even though substitution arrangement, it was not an unfettered right, they would have to find another Pimlico plumber. Upheld at CA and SC. SC Held: they are plumbers: first they said:

1. Smith had “obligation of personal performance” to carry out assignment for PP
2. PP not withstanding substitution arrangement, exercise considerable control over the plumbers. SC reinforced what B Hale said about the law firm (bates) that subordination is not essential. This was obiter in that case because there was control.
3. Limited right to find a subsittiure to perform work (another Pimlico operative) not inconsistent with an obligation of personal performance which was the dominantfeature of the contract
4. Obligation of personal performance was the number one for this contract
5. Sometimes substitution is so common that personal performance is means no relations, but that is not the case here
6. Economic dependency – distinguished in Halawi
7. Not a client or customer – an “umbrella contract” to offer work to S when it was avaialbel – had a degree of independence and freedom to say no, but working within organisation suggesting control and performed this work on basis.
8. “Independent contractor” label was a sham.

Both CA and SC found to be workers and did not matter that they put down “self employed” for tax purposes. Therefore, even those who may be called self employed, they can fall within the scope.

Question 24

No: Singh v Bristol Sikh Temple Management Committee.

Answer 24

Does the worker need to show mutuality of obligation?

Question 25

In theory, it adopts a broader protection than the "worker" definition, with a view to ensuring that prohibitions on workplace discrimination apply to as many people as possible. Under s83(2)(a) EA 2019, everyone who counts as an employee and worker is covered under this act.

Answer 25

Does Equality Law cover more people?

Question 26

Can a worker perusade the court that a contract can be IMPLIED between him and the end user, in the case of agency work?

Answer 26

This augment was successful in some earlier cases, but the courts' more recent approach has been to hold that it is only appropriate to imply a contract where the "business necessity" test is satisfied: where implying a contract is the only way to make sense of the arrangements.

Question 27

Pimlico

Answer 27

Provide work "from time to time" (said in contract). Contract said company is under no obligation to offer work and no obligation to accept. Mr Smith's only right of substitution was of another Pimlico operative. Looking at the words, they required P to do work personally. _Factors whic show X is not a client or customer:_ 1. tight control (requiring him to wear a uniform)

Question 28

Community Dental Centres v Sultan-Darmon

Answer 28

held: client or customer of NHS, not having relationship of economic dependency. Dentistry can decide not to offer services to the NHS and become only open to private patients. So there was no oblgiation to perform work. No requirement for mutuality of obligation cf. Baird, above, or ‘subordination’, per Baroness Hale in Clyde & Co v Bates van Winkelhof [2014] UKSC 32. This was obiter in that case because there was control. – endorsed in Pimlico Plumbers v Smith [2018] UKSC 29, but must be an obligation to perform work : Community Dental Centres v Sultan - Darmon

Question 29

1) Where the individual can invoke the "statutory continuity" mechanism in s212 ERA 1996. 2) wage-work bargains

Answer 29

When might it not be necessary to establish mutuality of obligations?

Question 30

Jivraj v Hashwani sc

Answer 30

the Supreme Court applied the concepts of direction and subordination identified in the Allonby case to its interpretation of a "contract personally to do ... work" in the predecessor to s 83(2)(a).

Question 31

court applied the control test. Worker in question used tools in company, wore their uniform, booker holidays through line manager, raised grievance with end user. After period of time, terminated the relationship. Found that although initially hired by agency, he was treated as though he had been directly hired by them. Possible to bring unfair dismissal claim against them.

Answer 31

Motorola v Davidson [2001]

Question 32

Agency worker court applied the control test. Worker in question used tools in company, wore their uniform, booker holidays through line manager, raised grievance with end user. After period of time, terminated the relationship. Found that although initially hired by agency, he was treated as though he had been directly hired by them. Possible to bring unfair dismissal claim against them.

Answer 32

Motorola v Davidson

Question 34

Allonby v Accrington and Rossendale College [2004]

Answer 34

‘principle of equal pay for male and female workers’ – ‘worker’ must be in a relationship of subordination with the person who receives the services 1. where EU law defines who is a ‘worker’ – given an autonomous EU meaning by the CJEU:

Question 35

Pulse Healthcare v Carewatch Care Services [2012]

Answer 35

had a ‘zero hours contract’ but there was a set working pattern – was mutuality of obligations

Question 36

**Zero hours contract** **Held: written contract did not represent the true agreement,** **Mutuality of obligation present = employees** written contract of carers was described as a zero hours contract. Contained no fixed hours. In practice, thy worked very regular hours in shifts set by employers. Found that the written contract didn’t represent the true agreement between the parties. Autoclenz was applied based on conduct of employment relationship. Working pattern organised in specific patterns of work. They were shift workers - it was a sham, found to be employees, with mutuality of obligations. Distinguished in *Saha* v *Viewpoint Field Services Ltd*

Answer 36

Pulse Healthcare v Carewatch Care Services [2012]

Question 37

Evolved to distinguish between ‘employee’ (common law) and ‘worker’ (statute).

Answer 37

Why was the mutuality of obligations test evolved?

Question 38

Certain weeks in which there is no contract of employment do not break continuity and do count – s212(3). This rule applies where the employee is: 1. **incapable of work in consequence of sickness or injury** [for not more than twenty-six weeks – s212(4)] incapable of *that* work: absence must be by reason of sickness or injury:

Answer 38

Donnelly v Kelvin International Services

Question 39

Underhill LJ suggested at para 23 that a person's lack of contractual obligation between assignments might indicate a lack of subordination consistent with the other party being no more than his client or customer

Answer 39

Windle v Secretary of State for Justice [2016]

Question 40

Uber v Aslam, Farrar, Dawson & Others [2017] UKEAT

Answer 40

Uber drivers performed work personally for Uber not the customer – under the control of Uber and available for work when the driver’s app was switched on uber taxi drivers would found to be working everytime theu turn on the app, meaning the driver was working. Even though they may perform numerous assignments in a day, each together show relationship.

Question 41

Autoclenz v Belcher [2011] (UKSC)

Answer 41

per Lord Clarke ØThe question in every case is what was the **‘true agreement’ between the parties?** ‘… the _relative bargaining power_ of the parties must be _taken into account_ in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only part. This may be described as a purposive approach to the problem.’ Øsame test applies to sham labels in ‘worker’ cases – Pimlico Plumbers v Smith [2018] SC

Question 42

it is only appropriate to imply a contract where the "business necessity" test is satisfied: where implying a contract is the only way to make sense of the arrangements. This test is unlikely to be satisfied in agency work cases because the worker's provision of labour to the end user can be explained by reference to the agency's contract with the end user and the worker's contract with the agency. Therefore, there is no need to imply an additional contract between worker and end user.

Answer 42

James v Greenwich LBC

Question 43

1) zero hours contract 2) agency working There is a standard form of working - i.e. employees on an indefinite, full-time contract with an employer - and that anything else is a deviation from the norm. But today, non standard working is becoming increasingly common.

Answer 43

Non standard working

Question 44

Yes. Lawrie -Blum = essential feature of an employment relationship... is that for a certain period of time a person persons services for and under the direction of another person in return for which he receives remuneration. Levin - The work does not need to be full time. The work must be "effective and genuine, not purely marginal and ancillary".

Answer 44

Is the EU definition of worker different?

Question 45

1) Mutuality of obligation is necessary to show that there is a contract between the parties 2) Mutuality of obligation is about showing that the contract is one of employment.

Answer 45

Two views about the role of mutuality of obligation

Question 46

O’Kelly v Trusthouse Forte

Answer 46

No obligation for the company to provide work and no obligation to offer futher services. Did **not** meet the mutuality of obligations test

Question 47

Tanton and McFarlane approach

Answer 47

If the contract contains an unfettered power of substitution, the individual cannot be an employee or worker, but if the contract contains a more limited power of substitution (as in MacFarlane), this will not necessarily defeat employee or worker status.

Question 48

1. Subsitution clause 2. Employer not oblidged to offer work 3. Said in contract they were self employed. Lord Clarke - relative bargaining powers of party must be taken into account when deciding whether the terms of any written agreement represents what was agreement. "The true agreement will often have to be gleaned from all the cirucmsrances of the case, of which the written agreement is only a part". SC laid down a different approach to written contracts in the employment sphere. Claimants were valeters. Various terms of the written contract they had signed suggested that they were self-employed: the employer was not obliged to offer them work, or accept work if offered, and they were entitled to send a substitute instead of doing the work themselves. SC Held: the Snook test was not the only situation in which the courts might be entitled to disregard a written agreement. There was a more general power to do so where contracts were concluded in situations of inequality of bargaining power. Lord Clarke - relative bargaining powers of party must be taken into account when deciding whether the terms of any written agreement represents what was agreement. **HELD**: valenters were employees because as they were obliged to turn up each day and complete their work themselves under the employer's detailed supervision. "The true agreement will often have to be gleaned from all the cirucmsrances of the case, of which the written agreement is only a part".

Answer 48

Autoclenz v Belcher SC [2011]

Question 49

James v LB of Greenwich [2008] EWCA

Answer 49

implied contract with end user is a separate contractual question – agency workers cannot be “employees in disguise” – Muscat was an exceptional case. James followed in: *Smith* v *Carillion* [2014] IRLR 344 James was agency worker supplied to same end user (Grenwich council) for 3 years. Fact that she had been placed for 3 years but without further evidence that she was an employee, meant that that alone didn’t make her an employee of the council. Mere passage of time didn’t alone lead to implied contract. No mutuality of obligations. But treat the cases with caution: EAT and CoA have gone in different direction following James v Grenwich case

Question 50

Cornwall CC v Prater [2006] (CA)

Answer 50

successive individual teaching assignments – all weeks counted, no break in continuity – short breaks between contracts were each a ‘temporary cessation’ – Rule 3b below : concerns teacher in outer school education service – was teaching children at home. Was engaged as a home tutor and there were breaks in tuition periods, was doing one to one lessons with children with special needs. May have been breaks of a few weeks between pupil allocation. Each time she had to teach pupils she had to carry out her duties. She sought a written declaration that she was an employee under s 1 of ERA. Held that she was an employee, had continuity of employment between her employment. Each week counted as an individual contract for teaching and there was a mutuality of obligations. This also brought in 3(b) – any gaps of pupils being brought to her was deemed to be an absence due to “temporary cessation of work”. Any gaps between engagement were merely this.

Question 51

Wilson v Circular Distributors Ltd [2006]

Answer 51

An ET chairman wrongly decided that Mr Wilson was not an "employee" and therefore he could not present a claim for unfair dismissal. The EAT overrules this error. It was made because the ET chairman wrongly thought that because the employer was not under any obligation to offer work to Mr Wilson "there is no mutuality of obligation such as would be required to constitute a contract of employment". The ET chairman failed to take into account that **Mr Wilson was bound to undertake work if it was offered to him.** absence of mutuality means no obligation on either party to perform work

Question 52

1) they do not have any guaranteed level of income 2) their employment status is uncertain There is no mutuality of obligation so they will not be classified as an employee.

Answer 52

Two main problems with Zero hours contract

Question 53

Employee Employees normally benefit from all the rights employment law has to offer, so from the individual's perspective, this is usually the most desirable category to be in. They are entitled to anything that constitutes an employment right,for example: 1) right not to be unfairly dismissed 2) right to take maternity leave Some of these rights have"qualifying periods". The employee must complete a specified period of continuous employment with the employer before he or she becomes eligible to claim.

Answer 53

Which category is most desirable to be in?

Question 54

absence of mutuality between assignments was a relevant factor – but see now:

Answer 54

Capita Translation and Interpreting v Siauciunas [2017]

Question 55

Pulse Healthcare [2012]

Answer 55

zero hours contract but set working pattern – was mutuality of obligations = employee

Question 56

No obligation for the company to provide work and no obligation to offer futher services. Did **not** meet the mutuality of obligations test

Answer 56

O’Kelly v Trusthouse Forte

Question 57

represents a shift away from the strict ‘contractual approach’ but the label is still relevant in the ET’s consideration of the facts if it is deemed to be consistent with the parties’ own understanding of their agreement – if so it reflects the ‘true agreement’ in the absence of compelling evidence to the contrary: Stringfellows v Quashie [2013] EWCA

Answer 57

What does Autoclenz represent?

Question 58

he power station guides were paid for working for up to 25 hours a week, but the respondent was under no duty to provide them with any work and could not have disciplined them for refusing to work. They were held not to be employees. When work was available they were free to undertake it or not as they chose. They worked on a 'casual as required basis' which did not create a contract of service, as there was an absence of mutuality from the working arrangements. The case did not, however, address the case of individual work contracts, in which there were mutual obligations or the status of the claimants when actually working as guides

Answer 58

Carmichael v National Power [2000] IRLR 43 (HL)

Question 59

Since the Growth and Infrastructure Act 2013, inserting s205A into ERA, introduced concept of employee shareholder. The employee shareholder is someone who is classified as an employee, but in exchange for an allocation of shares in the employer company, agrees to give up significant rights that would normally attach to employee status.

Answer 59

Employee shareholder

Question 60

**Mutuality of obligaitons test** must be no obligation to work on either party – W was obliged to work = employee

Answer 60

Wilson v Circular Distributors [2006

Question 61

where EU Directives extend protection to workers – ‘personal scope’ of protection

Answer 61

O’Brien v Ministry of Justice

Question 62

Autoclenz SC

Answer 62

Car valeters signed a contract document stating that there was no obligation on the "employer" to provide work and that they were free to reject work when offered. SC - the terms of this kind will no longer work automatically to prevent tribunals from deciding that an individual is an employee. If it is clear practice that: 1) the employer provided work on a regular basis 2) expected the employee to accept that work, it may be possible to draw the conclusion that the "real agreement" between the parties was one of employment. From this case, the courts' new found willingness to look beyond the written agreement between the parties. However, even taking into account the reality of the parties' relationship, it may still be the case that there is no mutuality of obligation and therefore no contract of employment between them.

Question 63

Halawi v World Duty Free [2013]

Answer 63

not a ‘worker’ if no economic dependency, distinguished in *Pimlico Plumbers. --* so-called power of substitution was not a contractual right at all. World Duty Free's declaration that Mrs Halawi might appoint a substitute reflected its understandable lack of interest in personal performance on her part under her contract with her own service company and/or under its contract with the management services company. Its interest was only that someone sufficiently presentable and competent to have secured its approval to work in an outlet. In Pimlico - In circumstances in which the contract provided no express right to substitute Halawi was working in controlled outlet, no contract with them. Her job was to sell cosmetics, her contract was with a management services company. The controlled outlet then withdrew their consent to let her work there, the effect was akin to dismissal. Found: she could not be a worker with the controlled outlet because no contract with them, even though they exerted control over her. She did not do work for them. Suggesting protection lacks here.

Question 64

Hospital Medical Group Ltd v Westwood ca

Answer 64

one may be a professional person with a high degree of autonomy as to how the work is performed and more than one string to one's bow, and still be so closely integrated into the other party's operation as to fall within the definition.

Question 65

Carmichael v National Power [2000] IRLR 43 (HL)

Answer 65

he power station guides were paid for working for up to 25 hours a week, but the respondent was under no duty to provide them with any work and could not have disciplined them for refusing to work. They were held not to be employees. When work was available they were free to undertake it or not as they chose. They worked on a 'casual as required basis' which did not create a contract of service, as there was an absence of mutuality from the working arrangements. The case did not, however, address the case of individual work contracts, in which there were mutual obligations or the status of the claimants when actually working as guides

Question 66

No requirement for mutuality of obligation cf. Baird, above, or ‘subordination’, per Baroness Hale . question is: is a partner in a law firm a worker? SC satisfied that there was sufficient evidence of worker evidence even though being a partner in a law firm, she was not subordinate to other partner because she had a contract to work personally for the law firm, and the firm would not be regarded as a customer or client so put these together, even in the event of no subordination, it was a relationship.personally, Hale though: subordination was sometimes an aid to help decide, but it is not a free standing and universal characteristic of being a work. No essential, providing there is an obligation to work personally for the law firm.

Answer 66

Clyde & Co v Bates van Winkelhof [2014] UKSC 32

Question 67

What is the statutory continuity mechanism in s212 ERA 1996?

Answer 67

This section is designed to make it more difficult for an employer to defeat a claim that an individual has continuous employment, by providing various breaks in employment do not break the legal concept of continuity.

Question 68

Question before tribunal was “can an agency worker entitled after 12 weeks of placement as the same end users employees, be compensated for having unpaid breaks by being a higher hourly pay?” Individual got high hourly pay but less holiday (among one or two others). Tribunal found this higher pay offset the loss of holiday, so there is no breach of equal principle. On appeal found: an agency cannot offset a failure to convey a specific entitlement under the regulations, I.E there should be “the SAME” holiday. The entitlement is for the same terms and conditions between employees, NOT by comparing the overall package. There might besome flexibility to pay holiday pay as a lump sum, but this must be ttransparent and made clear to the worker.

Answer 68

Kocur v Royal Mail [2018]

Question 70

Is the EU definition of worker different?

Answer 70

Yes. Lawrie -Blum = essential feature of an employment relationship... is that for a certain period of time a person persons services for and under the direction of another person in return for which he receives remuneration. Levin - The work does not need to be full time. The work must be "effective and genuine, not purely marginal and ancillary".

Question 71

the Court of Justice of the European Communities, at paras 67 and 68, interpreted the word "workers" in what is now art 157(1) as persons who perform "services for and under the direction of another person in return for which [they receive] remuneration" but excluding "independent providers of services who are not in a relationship of subordination with the person who receives the services".

Answer 71

Allonby v Accrington and Rossendale College

Question 72

contractual document referred to a ‘partnership agreement’ – ET held that S was not a ‘partner’, was an employee. Document designed to deceive others and was a sham, decision upheld on appeal – CA: it is for the court or tribunal to decide if the written document does not accurately describe the true *ongoing* employment relationship: Smith LJ: ‘the court must look at the **substance** not the **label**... . Although there will be in many cases (as there was in this one) an intention to conceal or misrepresent the actual relationship, there is no logical reason why this should be a universal requirement"

Answer 72

Protectacoat Firthglow v Szilagyi [2009] IRLR 365 (CA)

Question 73

No. A self-employed person works under a contract for services rather than a contract of service. This relationship is governed by ordinary law of contract rather than by labour law. This is because a self-employed person is an entrepreneur capable of bargaining with anyone who wishes to use his services. They can also: 1) employ other people (so inconsistent with assumption that someone who is an employee or worker provides PERSONAL service and cannot send someone else to do his job). 2) they may have numerous customers or clients for whom they work. This suggests that they are able to SPREAD their economic risks across clients and customers. They are dependent on one income.

Answer 73

Does a self employeed person work under a contract of service?

Question 74

1) reference to "contract personally to do word" does no include the "client or customer" exception that is applicable in the "worker" definition. This might suggest the concept might include some people who are running their own business and therefore have clients or customers, but still undertake to perform the work personally. A self employed plumber might be protected under the Equality Act 2010 definition provided that he undertook to perform the work personally. Therefore, a householder could be liable in employment law when he hires a plumber! But SC has cast doubt on this argument in Jivraj v Hashwani

Answer 74

How is the equality act 2010 s83(2)(a) provide more protection than workers

Question 75

Mingeley v Pennock [2004]

Answer 75

taxi drivers who can take their own fares are not workers– distinguished in *Uber* *Subsitution was allowed once work was accepted*

Question 76

Distinguish between: employees, workers and self-employed people

Answer 76

**Employees:** *subordination, control, dependency, mutuality, obligations* **Workers:** Is dependent but not necessarily subordinate, may be self-employed for tax purposes **Self employed:** independence, autonomy, risk

Question 77

Jivraj v Hashwani [2011] UKSC

Answer 77

arbitrator found not to be subordinate – case may be confined to its facts. Equality Act s83(2) = those within this concept are ‘employees’ under that Act – deemed to be in employment – definition similar to s230(3)(b) ERA except that no reference to client or customer Subordination requirement? Compare Jivraj (SC) with Lady Hale in Bates van Winkelhof (SC) - latter suggests that the concept of employee is broadly the same as ‘worker’, endorsed in Pimlico Plumbers (obiter)

Question 78

Critisisms with the control test

Answer 78

In some situations, employers employ skilled workers and give them a high degree of discretion: for example a doctor treating patients.

Question 79

MacFarlane v Glasgow CC

Answer 79

**Substitution** 1. Employer pay substitute directly 2. Alllows subsitute from people on approved list MacFarlane was a gym instructor who could send a substitute to teach her class, but only if she was ill and only if she chose another instructor from a list approved by her employer. The employer would pay the substitute directly. _Held: this term did not defeat the employee status._ Although the "personal service" test can be seen as a separate requirement about the terms of the individual's control, there are echos of "control" and "risk".

Question 80

Yewens v Nokes [1880]

Answer 80

(archaic but a means to establish that someone was under full control of employer) master/servant - ‘[a] servant is a person who is _subject to the command of his master_ as to the _manner in which he shall do his work’_ per Bramwell LJ

Question 81

Autoclenz v Belcher [2011] UKSC

Answer 81

The Supreme Court has preferred *Szilagyi* and the dissenting judgment of Elias J in *Kalwak*: car valets described in the contractual documents as ‘self-employed’ found to be employees based on an examination of all the relevant evidence, including how the parties were conducting themselves in practice and considering the inequality of bargaining power in the employment relationship. **per Lord Clarke** * The question in every case is **what was the ‘true agreement’ between the parties?** * ‘… the **relative bargaining** power of the parties must be taken into account in deciding whether the terms of any written agreement in **truth represent** what was agreed and the **true agreement** will often have to be gleaned from **all the circumstances** of the case, of which the written agreement is only part. This may be described as a purposive approach to the problem.’

Question 82

Windle v Secretary of State for Justice [2016]

Answer 82

Underhill LJ suggested at para 23 that a person's lack of contractual obligation between assignments might indicate a lack of subordination consistent with the other party being no more than his client or customer

Question 83

Stringfellows v Quashie [2013] EWCA

Answer 83

**Risk test** lap dancer – was controlled but not paid by clubs. She paid them to be provided with the opportunity to earn money by dancing with clients, took the economic risk

Question 84

Certain weeks in which there is no contract of employment do not break continuity and do count – s212(3). This rule applies where the employee is: 1. **absent from work on account of a temporary cessation of work**: 2. interpreted widely to protect intermittent employees or those with fixed-term contracts where continuity would otherwise be deemed to have been broken: people on fixed term contracts but then rehired on regular basis. Mrs F employed as lecturer at further education college with successive contracts for 8 years. September – July had contract, “fired” for summer period, then rehired in September. When wsant rehired brought clam of unfair dismissal and redundancy payment. Could it count for absence due to temporary cessation of work. Found on basis of earlier case of Fitzgerald – found that there was continuity of employment. Test to be applied: gaps should be short in comparison to the period of employment. But wouldnt help seasonal workers – e.g. fruit pickers hired every summer, because the gap is longer than the period of work.

Answer 84

Ford v Warwickshire County Council [1982]

Question 85

Any agreement between the parties to waive continuity would be void – s203: ## Footnote Parties cannot agree to break continuity – PROTECTS EMPLOYEE, the weaker party of the relationship.

Answer 85

M&P Steelcraft v Ellis [2008]

Question 86

However, a limited or occasional power to subcontract may not be fatal. the EAT held that just because a gymnastic instructor could arrange a replacement from a register maintained by the council, if she was unable to attend, did not mean she could not be an employee.

Answer 86

MacFarlane v Glasgow City Council [2001] IRLR 7

Question 87

Troutbeck v White [2013] EWCA

Answer 87

**Control test** 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’ per Richardson J Who has the ultimate right of control

Question 88

no mutuality of obligation during shift work

Answer 88

Little v BMI Chiltern [2009]

Question 89

Prater was engaged by CCC under individual contracts to teach children who were unable to attend school. **The fact that there was a succession of individual contracts in the 10 year priod played a HUGE part.** If we spoke about a single umbrella agreement this might have turned to a different result. LA was not under contractual obligation to offer pupils to her and she was under no obligation to accept. However, when she took them on, she was obliged to fulfil her committment. For 10 years, she never refused any work offers. **Continuity** Because schools were closed for holidays, Prater would not work them. This temporary cessation fell within s212(3) 1996 act. **Mutual obligations** Councel tried to argue there was no "irreducible mimumum" of continuing obligations. Prater was under no obligation to undertake work and council under no obligation to offer. Fact that the enaggements were extension (!0 years) did not satisfy requirement of mutual obligations as she was still under no obligation to accept further engagements. It did not make any difference to the legal position that, after the end of each engagement, the council was under no obligation to offer her another teaching engagement or that she was under no obligation to accept one. **_The important point is that, once a contract was entered into and while that contract continued, she was under an obligation to teach the pupil and the council was under an obligation to pay her for teaching the pupil made available to her by the council under that contract._** There was a mutuality of obligation in each engagement namely that the county council would pay Ms Prater for the work which she, in turn, agreed to do by way of giving tuition to the pupil for whom the council wanted her to provide tuition. Per J Lewison - The appellant's argument presupposes that it was necessary to find mutuality of obligation over the whole period from the beginning of the first engagement to the conclusion of the last. In a case where s.212 does not apply, that may well be right. But in a case where gaps between individual engagements can be bridged by s.212, that necessity does not arise.

Answer 89

CORNWALL COUNTY COUNCIL (appellants) v. PRATER

Question 90

Autoclenz principle

Answer 90

Terms in a written contract purporting to deny any of these elements may be disregarded if they do not reflect the "trust agreement" between the parties.

Question 91

suggests that it may be possible to imply a contract between the employer and the end user where there is evidence of mutuality of obligation; even though being paid by agency after being placed with company, because had reworked there for over 2 years, provided with equipment, given mobile phone bill, held sufficient mutuality of obligation -\> obligation to provide him with work in return for pay. An implied contract of employment in absence of express agreement, based on conduct of the parties. Two essential requirements were found – control and mutuality of obligations. Idea of economic reality. but distinguished in the **leading case** of: James v LB of Greenwich [2008

Answer 91

Cable & Wireless v Muscat [2006]

Question 92

GP was a client or customer of the hospital trust – *Westwood* distinguished This case could be distinguished from Westwood, the essential point in Westwood being that, although Dr Westwood had other "jobs", the key factual finding was that he had agreed to provide his services as a hair restoration surgeon exclusively to HMG, he did not offer that service to the world in general, and he was recruited by HMG to work as an integral part of its operations. That exclusivity was wholly missing on the facts of the present case. Not a worker

Answer 92

Barking

Question 93

If the contract contains an unfettered power of substitution, the individual cannot be an employee or worker, but if the contract contains a more limited power of substitution (as in MacFarlane), this will not necessarily defeat employee or worker status.

Answer 93

Tanton and McFarlane approach

Question 94

Borrer v Cardinal Security

Answer 94

An individual's contract may purport to be a zero hours contract when in fact he has regular working hours, but the Autoclenz decision addresses this.

Question 95

Hospital Medical Group v Westwood

Answer 95

HMG engaged Westwood to provide advice and treatment at its clinic to patients suffering from hair loss. HMG was under no obligation to pay him unless patients wanted to use his service. Westwood's main job was as a GP, and he also worked for another clinic, but he undertook to provide hair loss treatment exclusively through HMG. CA upheld EAT's finding that he was a worker on the basis of the integration test drawn up from Cotswold Developments v Williams. Although Westwood was found to be running his own business, it was held that he was integrated into the clinic's work, in that he was presented by HMG to patients as "its" surgeon, and because it did not make sense to describe HMG as the customer of Westwood's business. This decision can be seen as broadening the worker test because it accepts that an individual can run a business and still be a worker, provided that the recipient of the business's service cannot be described as a customer.

Question 96

What are the two tests to see whether B owes A the obligations of an employer?

Answer 96

1) Control 2) risk 3) overarching mutuallity of obligations test

Question 97

not a ‘worker’ if no economic dependency, distinguished in *Pimlico Plumbers. --* so-called power of substitution was not a contractual right at all. World Duty Free's declaration that Mrs Halawi might appoint a substitute reflected its understandable lack of interest in personal performance on her part under her contract with her own service company and/or under its contract with the management services company. Its interest was only that someone sufficiently presentable and competent to have secured its approval to work in an outlet. In Pimlico - In circumstances in which the contract provided no express right to substitute Halawi was working in controlled outlet, no contract with them. Her job was to sell cosmetics, her contract was with a management services company. The controlled outlet then withdrew their consent to let her work there, the effect was akin to dismissal. Found: she could not be a worker with the controlled outlet because no contract with them, even though they exerted control over her. She did not do work for them. Suggesting protection lacks here.

Answer 97

Halawi v World Duty Free [2013]

Question 98

James v Greenwich LBC

Answer 98

it is only appropriate to imply a contract where the "business necessity" test is satisfied: where implying a contract is the only way to make sense of the arrangements. This test is unlikely to be satisfied in agency work cases because the worker's provision of labour to the end user can be explained by reference to the agency's contract with the end user and the worker's contract with the agency. Therefore, there is no need to imply an additional contract between worker and end user.

Question 99

Which category is most desirable to be in?

Answer 99

Employee Employees normally benefit from all the rights employment law has to offer, so from the individual's perspective, this is usually the most desirable category to be in. They are entitled to anything that constitutes an employment right,for example: 1) right not to be unfairly dismissed 2) right to take maternity leave Some of these rights have"qualifying periods". The employee must complete a specified period of continuous employment with the employer before he or she becomes eligible to claim.

Question 100

Employee shareholder

Answer 100

Since the Growth and Infrastructure Act 2013, inserting s205A into ERA, introduced concept of employee shareholder. The employee shareholder is someone who is classified as an employee, but in exchange for an allocation of shares in the employer company, agrees to give up significant rights that would normally attach to employee status.

Question 101

Allonby v Accrington and Rossendale College

Answer 101

the Court of Justice of the European Communities, at paras 67 and 68, interpreted the word "workers" in what is now art 157(1) as persons who perform "services for and under the direction of another person in return for which [they receive] remuneration" but excluding "independent providers of services who are not in a relationship of subordination with the person who receives the services".

Question 102

1. **must be an individual who has entered into or worked under a contract with another party for work or services** 2. **the individual undertakes to perform the work personally for that party** – applied in Pimlico Plumbers (This means that there is no obligation on the party of the person to work for another. But when they do, they have an obligation to perform the work personally.) 3. **the other party does not have the status of a client or customer of the individual** - Westwood No requirement for mutuality of obligations or subordination, per Lady Hale in Bates van Winkelhof, but must be an obligation to perform work personally, Sultan-Darmon

Answer 102

Scope of ‘worker’ concept in s230(3)(b): Autoclenz v Belcher (SC) – 3 requirements

Question 103

Ms Quashie was a lap-dancer in a nightclub. Customers brought vouchers in the club that they could use to pay her for dances. At the end of the evening, she would present her vouchers, who would give her money, after deducting various fees. A key fact was that she could be out of pocket at the end of the evening if she did not earn enough by performing. This assumption of economic risk was one of the factors which led the CA to conclude that she was not an employee. The economic risk Q took was also a powerful pointer against there being a contract of employment and the lack of any obligation to pay precluded the establishment of such a contract, O'Kelly v Trusthouse Forte Plc [1984] Q.B. 90, [1983] 7 WLUK 211considered. The tribunal’s conclusion was reinforced by the fact that the contract terms involved Q accepting that she was self-employed, and she conducted her affairs on that basis, paying her own tax,

Answer 103

Quashie v Stringfellow

Question 104

Pimlico Plumbers v Smith [2018] UKSC

Answer 104

preferred Lady Hale in *Bates* to *Windle In both cases lady Hale suggested that concept of employee under Equality Act is broadly the same as worker under the ERA.* ## Footnote *Providing there is personal obligation to perform work, the individual will be protected under the equality act.*

Question 105

the Supreme Court applied the concepts of direction and subordination identified in the Allonby case to its interpretation of a "contract personally to do ... work" in the predecessor to s 83(2)(a).

Answer 105

Jivraj v Hashwani sc

Question 106

When might it not be necessary to establish mutuality of obligations?

Answer 106

1) Where the individual can invoke the "statutory continuity" mechanism in s212 ERA 1996. 2) wage-work bargains

Question 107

**Must invole personal service** Contract between the parties provided that Mr Tanton was required to arrange for another person to do the work if he was "unable or unwilling" to do it himself. The CA held that it was impossible for the contract to be a contract of employment because employment involves personal service: the employer selects the employee and enters into a relationship of mutual trust and confidence with him. **the Court of Appeal held that because the driver's contract said he did not have to do the work personally, it could not be a contract of employment. However, a limited or occasional power to subcontract may not be fatal. In MacFarlane v Glasgow City Council (2001, IRLR 7), the EAT held that just because a gymnastic instructor could arrange a replacement from a register maintained by the council, if she was unable to attend, did not mean she could not be an employee.**

Answer 107

Express v Tanton

Question 108

**Risk test** ## Footnote Market Investigations [1969] per Cook J: factors suggesting a person is self-employed – ‘in business on his own account’: Ødoes he provide his own equipment and hire his own helpers? Øwhat degree of financial risk does he take? Øwhat responsibility for investment and management? Øwhat is the opportunity for profit?

Answer 108

Market Investigations v Minister of Social Security

Question 109

dentist under contract to provide dental services under the NHS but EAT found that there was “an absence of an obligation to perform services personally” – therefore self-employed. Not a worker The EAT expressed surprise that the Employment Judge had on the one hand concluded that there was no mutuality of obligation when deciding the ‘employee’ question but that there was mutuality of obligation when deciding the ’worker’ question. Also, the claimant’s right not to provide dental services did not depend solely on whether he was unable to do this, but it also depended on whether he was willing to provide the services. Therefore they decided that the contract did not entail an undertaking on the claimant to do work or perform personally any work or service, and so he was not a worker.

Answer 109

Community Dental Centres v Sultan-Darmon

Question 110

Is substitution okay?

Answer 110

To an extent: Hawaiai - substitution allowed in contract === NOT WORKER Pimlico - distinguishes hawai because not written in contract (same as autoclenz)

Question 111

Clyde & Co v Bates van Winkelhof [2014] UKSC 32

Answer 111

No requirement for mutuality of obligation cf. Baird, above, or ‘subordination’, per Baroness Hale . question is: is a partner in a law firm a worker? SC satisfied that there was sufficient evidence of worker evidence even though being a partner in a law firm, she was not subordinate to other partner because she had a contract to work personally for the law firm, and the firm would not be regarded as a customer or client so put these together, even in the event of no subordination, it was a relationship.personally, Hale though: subordination was sometimes an aid to help decide, but it is not a free standing and universal characteristic of being a work. No essential, providing there is an obligation to work personally for the law firm.

Question 112

**Risk test** lap dancer – was controlled but not paid by clubs. She paid them to be provided with the opportunity to earn money by dancing with clients, took the economic risk

Answer 112

Stringfellows v Quashie [2013] EWCA

Question 113

The signature rule The parol evidence rule Under the signature rule, the contracting party is bound by a contract he has signed, even if it is clear that he has no read or understood the contract.

Answer 113

What are the two important rules about written contracts for contractual not employment law

Question 114

successive individual teaching assignments – all weeks counted, no break in continuity – short breaks between contracts were each a ‘temporary cessation’ – Rule 3b below : concerns teacher in outer school education service – was teaching children at home. Was engaged as a home tutor and there were breaks in tuition periods, was doing one to one lessons with children with special needs. May have been breaks of a few weeks between pupil allocation. Each time she had to teach pupils she had to carry out her duties. She sought a written declaration that she was an employee under s 1 of ERA. Held that she was an employee, had continuity of employment between her employment. Each week counted as an individual contract for teaching and there was a mutuality of obligations. This also brought in 3(b) – any gaps of pupils being brought to her was deemed to be an absence due to “temporary cessation of work”. Any gaps between engagement were merely this.

Answer 114

Cornwall CC v Prater [2006] (CA)

Question 115

Mrs Halawi had been working as a beauty consultant in a duty-free outlet at Heathrow airport, managed by World Duty Free.Mrs Halawi's role was to sell Shiseido's products there. Her contract , was with a management services company which sold her services on. **Held:** 1. No contract with the WDF of any sort. 2. necessary degree of subordination of Mrs Halawi to WDF was absent 3. power of substitution negated any obligation of personal performance.

Answer 115

Court of Appeal in Halawi v WDFG UK Ltd (t/a World Duty Free) [2014] EWCA

Question 116

In the particular circumstances of this case, continuity of employment was preserved where a new contract was entered into within the same working week that the previous contract terminated, even where the employee did not commence working under the new contract until a later date. – an agreement made in one week to start work in the next week is a contract of employment in law for continuity purposes even if there is an overlap between two contracts – wide reading of s211(1)(a) someone was working at Sheffield store, employment was terminated when store was shut down. Accepted offer from their store in Blackpool a **week later**. First day was the following week. Was then dismissed from Blackpool – sought to claim unfair dismissal. Was dismissal and then rehiring at another store counted? Found that al the weeks counted. An agreement had been made in the week he was dismissed to start work in the next week – a contract which was for the same employer at a different store, deemed to be continuous employment.

Answer 116

Madhouse

Question 117

Protectacoat Firthglow v Szilagyi [2009] IRLR 365 (CA)

Answer 117

contractual document referred to a ‘partnership agreement’ – ET held that S was not a ‘partner’, was an employee. Document designed to deceive others and was a sham, decision upheld on appeal – CA: it is for the court or tribunal to decide if the written document does not accurately describe the true *ongoing* employment relationship: Smith LJ: ‘the court must look at the **substance** not the **label**... . Although there will be in many cases (as there was in this one) an intention to conceal or misrepresent the actual relationship, there is no logical reason why this should be a universal requirement"

Question 118

Non standard working

Answer 118

1) zero hours contract 2) agency working There is a standard form of working - i.e. employees on an indefinite, full-time contract with an employer - and that anything else is a deviation from the norm. But today, non standard working is becoming increasingly common.

Question 119

**Mutuality of obligations test** They were wine waiters who were hired by hotel group Trusthouse Forte, they were described as regular casuals – they were called in to work at big hotel events etc. all the wine waiters were on a list, they were given preference in allocation of work depending on where they were on the list – high up, lower down, clear incentive to keep high up on the list by saying yes. They argued that each hiring was a contract of employment or could be argued that they had an umbrella contract – do lots of pieces of work over period of time, regularly, simply take the view that it’s effectively continuous employment, put an umbrella over it. CoA looked at facts, said every time the waiters are offered work they can say no, no obligations for them to offer their services on a regular basis. As a result they were simply choosing to work

Answer 119

O’Kelly v Trust House Forte

Question 120

Alternative view on mutuality of obligations

Answer 120

Ordinary law of contract is not fussy about what the parties promised each other. There is no requirement that the pair of promises have any particular content. But in employment cases, the courts have insisted that the parties' promises have particular content: the employer must promise future work and the employee must promise to accept it. In O'Kelly - it coudl be argued that there were some promises in this case. The employer promised to keep the casual waiters on a list and give them priority when work arrived. These 'lesser' promises do not satisfy the courts that mutuality of obligation is fulfilled. Therefore, mutuality is more than just establishing the presence of a contract kind: it helps classify that the contract is one of employment.

Question 121

preferred Lady Hale in *Bates* to *Windle In both cases lady Hale suggested that concept of employee under Equality Act is broadly the same as worker under the ERA.* ## Footnote *Providing there is personal obligation to perform work, the individual will be protected under the equality act.*

Answer 121

Pimlico Plumbers v Smith [2018] UKSC

Question 122

Clyde & Co LLP and another v Bates van Winkelhof

Answer 122

Appellant was an equity partner. She wanted to be considered as a worker for whistle blowing protection. judge Peter Clark allowed her appeal (EAT)and held that she was a worker. She was an integral part of the LLP's business, she could not offer her services to anyone else, she was in a subordinate position and the LLP was not her client. (The Court of Appeal commented that Judge Clark “appears to have considered the issue of subordination in the context of determining whether the LLP was a client or customer rather than as an independent requirement in its own right”: CA HELD: not a worker **HL -** She provided services "for" the LLP and worked personally. **While subordination may sometimes be an aid to distinguishing workers from other self-employed people, it is not a freestanding and universal characteristic of being a worker.​** there is “not a single key to unlock the words of the statute in every case”.

Question 123

Wilson v Circular Distributors [2006

Answer 123

**Mutuality of obligaitons test** must be no obligation to work on either party – W was obliged to work = employee

Question 124

Welton v Deluxe Retail (t/a Madhouse) [2013]

Answer 124

In the particular circumstances of this case, continuity of employment was preserved where a new contract was entered into within the same working week that the previous contract terminated, even where the employee did not commence working under the new contract until a later date. – an agreement made in one week to start work in the next week is a contract of employment in law for continuity purposes even if there is an overlap between two contracts – wide reading of s211(1)(a) someone was working at Sheffield store, employment was terminated when store was shut down. Accepted offer from their store in Blackpool a **week later**. First day was the following week. Was then dismissed from Blackpool – sought to claim unfair dismissal. Was dismissal and then rehiring at another store counted? Found that al the weeks counted. An agreement had been made in the week he was dismissed to start work in the next week – a contract which was for the same employer at a different store, deemed to be continuous employment.

Question 125

Yes - if the individual can prove that the substitution clause in the written contract does not reflect the "true relationship" he may be able to persuade the tribunal to ignore it.

Answer 125

Does Autoclenz apply to workers?

Question 127

Car valeters signed a contract document stating that there was no obligation on the "employer" to provide work and that they were free to reject work when offered. SC - the terms of this kind will no longer work automatically to prevent tribunals from deciding that an individual is an employee. If it is clear practice that: 1) the employer provided work on a regular basis 2) expected the employee to accept that work, it may be possible to draw the conclusion that the "real agreement" between the parties was one of employment. From this case, the courts' new found willingness to look beyond the written agreement between the parties. However, even taking into account the reality of the parties' relationship, it may still be the case that there is no mutuality of obligation and therefore no contract of employment between them.

Answer 127

Autoclenz SC

Question 128

Impact of Jivraj v Hashwani

Answer 128

In addition to the requirement of personal service - it is also necessary to show that there is a relationship of subordination before an individual falls within the Equality Act definition. Therefore, the Equality Act may now be narrower than the worker concept, because the requirement of subordination was rejected for the worker concept in Bates Van Winkelhof. On this view, the doctor in Westwood would be entitled to the NMW but not to the protection of equality law because he provided his work personally to the hospital but was not subordinated to it. Baroness Hale in Bates avoided this conclusion by treating the subordination requirement in Jivraj as having been "introduced in order to distinguish the immediate category [of workers] from people who were dealing with clients or customers on their own accounts". She believed that the worker definition and the Equality Act definition were broadly the same. The best solution would be to confine Jivraj on its unusual facts.

Question 129

Two views about the role of mutuality of obligation

Answer 129

1) Mutuality of obligation is necessary to show that there is a contract between the parties 2) Mutuality of obligation is about showing that the contract is one of employment.

Question 130

it can be oral or in writing. Where it is oral, the court will figure out from the parties' claims and the surrounding circumstances exactly what they agreed. Where it is written, the court can interpret and classify the contract document, But labour lawyers generally argue that written contracts should be given less weight in the employment context than they are in the commercial context because of risk of "boundary manipulation": the use of the written contract b y the employer to make it look as if the individual is in a category with fewer employment rights.

Answer 130

Can a contract of employment be oral?

Question 131

zero hours contract but set working pattern – was mutuality of obligations = employee

Answer 131

Pulse Healthcare [2012]

Question 132

An individual's contract may purport to be a zero hours contract when in fact he has regular working hours, but the Autoclenz decision addresses this.

Answer 132

Borrer v Cardinal Security

Question 133

What is the "risk" test?

Answer 133

It is designed to capture the entrepreneurial nature of self-employment. The idea is that A is an employee if B takes the risk of profit and loss in their relationship.whereas if A takes that risk, he is self-employed. The test was recently use in Quashie case

Question 134

Brooknight Guarding v Matei [2018]

Answer 134

**An agency worker can be on a zero-hour contract and be temporary but still gain rights after 12 weeks service at an end user**. In this case the right was to the same terms and conditions as the security guard employed directly by the end user, Mitie. employee on zero hours contract if position was temporary rather than permanent. ET said yes. This man was mainly working for a particularclient and dismissed after 21 months. Claimant said sufficient to show agency worker and same conditions as the directly employed staff as the other. Due to control and direction that had been applied to the zero hours worker, they should be treated as having been supplied temporarily and Agency work regulations should apply.

Question 135

Plumbers working for PP found to be workers – had an **obligation of personal performance** or work/services for PP, strong evidence of control by PP, worked for them - not a client or customer – **subordination not essential for ‘worker’ status**, could be self-employed for tax purposes and still a ‘worker’ – plumbers had an umbrella contract linking multiple assignments (similar to *Uber*). **Substitution clause** used was found to be consistent with an obligation of personal performance. This is the leading case. High level of control. Pumpers according to manual assigned to them have to wear uniforms with Pimlico id, meant to provide services of Pimlico and prohibited from private work for clients of Pimlico under the contact. Although, not written down, it was practised that a plumber to substitute for them if they do not do a certain job on a day. No obligation to accept work when offered but would normally work 40 hours pw for Pimlico. These factors suggest they are not employees. Held: the plumers were workers because they had a contract to personally perform work for Pimlico even though substitution arrangement, it was not an unfettered right, they would have to find another Pimlico plumber. Upheld at CA and SC. SC Held: they are plumbers: first they said: 1. Smith had “obligation of personal performance” to carry out assignment for PP 2. PP not withstanding substitution arrangement, exercise considerable control over the plumbers. SC reinforced what B Hale said about the law firm (bates) that subordination is not essential. This was obiter in that case because there was control. 3. Limited right to find a subsittiure to perform work (another Pimlico operative) not inconsistent with an obligation of personal performance which was the dominantfeature of the contract 4. Obligation of personal performance was the number one for this contract 5. Sometimes substitution is so common that personal performance is means no relations, but that is not the case here 6. Economic dependency – distinguished in *Halawi* 7. Not a client or customer – an “umbrella contract” to offer work to S when it was avaialbel – had a degree of independence and freedom to say no, but working within organisation suggesting control and performed this work on basis. 8. “Independent contractor” label was a sham. Both CA and SC found to be workers and did not matter that they put down “self employed” for tax purposes. Therefore, even those who may be called self employed, they can fall within the scope.

Answer 135

Pimlico Plumbers v Smith [2018] UKSC 29 [2017] EWCA

Question 136

Ready Mixed Concrete

Answer 136

Confirmed the control test in Yewen v Noakes. MacKenna defied control as: including "the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done" 1) deciding the thing to be done 2) the way in which it shall be done 3) the means to be employed in doing it 4) the time when 5) the place where it shall be done In modern literature the control test is sometimes express in terms of subordination,. T W M T P

Question 137

Provide work "from time to time" (said in contract). Contract said company is under no obligation to offer work and no obligation to accept. Mr Smith's only right of substitution was of another Pimlico operative. Looking at the words, they required P to do work personally. _Factors whic show X is not a client or customer:_ 1. tight control (requiring him to wear a uniform)

Answer 137

Pimlico

Question 138

Ford v Warwickshire County Council [1982]

Answer 138

Certain weeks in which there is no contract of employment do not break continuity and do count – s212(3). This rule applies where the employee is: 1. **absent from work on account of a temporary cessation of work**: 2. interpreted widely to protect intermittent employees or those with fixed-term contracts where continuity would otherwise be deemed to have been broken: people on fixed term contracts but then rehired on regular basis. Mrs F employed as lecturer at further education college with successive contracts for 8 years. September – July had contract, “fired” for summer period, then rehired in September. When wsant rehired brought clam of unfair dismissal and redundancy payment. Could it count for absence due to temporary cessation of work. Found on basis of earlier case of Fitzgerald – found that there was continuity of employment. Test to be applied: gaps should be short in comparison to the period of employment. But wouldnt help seasonal workers – e.g. fruit pickers hired every summer, because the gap is longer than the period of work.

Question 139

James v LB of Greenwich [2008] EWCA

Answer 139

: implied contract with end user is a separate contractual question – agency workers cannot be “employees in disguise” – Muscat was an exceptional case. But treat the cases with caution: EAT and CoA have gone in different direction following James v Grenwich case, James was agency worker supplied to same end user (Grenwich council) for 3 years. Fact that she had been placed for 3 years but without further evidence that she was an employee, meant that that alone didn’t make her an employee of the council. Mere passage of time didn’t alone lead to implied contract. No mutuality of obligations. James followed in: *Smith* v *Carillion* [2014] IRLR 344

Question 140

Found that zero-hours term in the contract did not reflect the true arrangement between the parties and that the employees in the case had in fact regular working hours.

Answer 140

Pulse Healthcare v Carewatch

Question 141

Curr v Marks & Spencer [2003]

Answer 141

Certain weeks in which there is no contract of employment do not break continuity *and* do count – s212(3). This rule applies where the employee is: **absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose** strictly interpreted, see Welton above - absence due to ‘arrangement or custom’ – must be established before or at the time the absence commences: had a career break scheme whereby employee could take a period away to bring up a child, then might be able to resume employment. She took 4 year break. She was permitted to return employment but no agreement as to continuity – they hadn’t agreed that this period wouldn’t count towards continuity. Under scheme required to resign and was then rehired – her pension had been frozen during that period. Continuity wasn’t continued – no meeting of minds, mutual expectations that continuity was continued.

Question 142

Does a self employeed person work under a contract of service?

Answer 142

No. A self-employed person works under a contract for services rather than a contract of service. This relationship is governed by ordinary law of contract rather than by labour law. This is because a self-employed person is an entrepreneur capable of bargaining with anyone who wishes to use his services. They can also: 1) employ other people (so inconsistent with assumption that someone who is an employee or worker provides PERSONAL service and cannot send someone else to do his job). 2) they may have numerous customers or clients for whom they work. This suggests that they are able to SPREAD their economic risks across clients and customers. They are dependent on one income.

Question 143

CORNWALL COUNTY COUNCIL (appellants) v. PRATER

Answer 143

Prater was engaged by CCC under individual contracts to teach children who were unable to attend school. **The fact that there was a succession of individual contracts in the 10 year priod played a HUGE part.** If we spoke about a single umbrella agreement this might have turned to a different result. LA was not under contractual obligation to offer pupils to her and she was under no obligation to accept. However, when she took them on, she was obliged to fulfil her committment. For 10 years, she never refused any work offers. **Continuity** Because schools were closed for holidays, Prater would not work them. This temporary cessation fell within s212(3) 1996 act. **Mutual obligations** Councel tried to argue there was no "irreducible mimumum" of continuing obligations. Prater was under no obligation to undertake work and council under no obligation to offer. Fact that the enaggements were extension (!0 years) did not satisfy requirement of mutual obligations as she was still under no obligation to accept further engagements. It did not make any difference to the legal position that, after the end of each engagement, the council was under no obligation to offer her another teaching engagement or that she was under no obligation to accept one. **_The important point is that, once a contract was entered into and while that contract continued, she was under an obligation to teach the pupil and the council was under an obligation to pay her for teaching the pupil made available to her by the council under that contract._** There was a mutuality of obligation in each engagement namely that the county council would pay Ms Prater for the work which she, in turn, agreed to do by way of giving tuition to the pupil for whom the council wanted her to provide tuition. Per J Lewison - The appellant's argument presupposes that it was necessary to find mutuality of obligation over the whole period from the beginning of the first engagement to the conclusion of the last. In a case where s.212 does not apply, that may well be right. But in a case where gaps between individual engagements can be bridged by s.212, that necessity does not arise.

Question 144

the control test may not be decisive—for instance, in the case of skilled employees, with discretion to decide how their work should be done. Mr L was a building worker, hired by Shire Roofing to undertake specific job, during which he was injured. It was asked whether there was a duty of care – if he was an employee, then owed duty regarding health and safety. As the control test was not decisive, it was also necessary to consider who owned the business, in particular where the financial risk lay. Tribunal applied economic reality test – the financial risk was with the company, they had the risk for his safety.

Answer 144

Lane v Shire Roofing [1995

Question 145

**Substitution** 1. Employer pay substitute directly 2. Alllows subsitute from people on approved list MacFarlane was a gym instructor who could send a substitute to teach her class, but only if she was ill and only if she chose another instructor from a list approved by her employer. The employer would pay the substitute directly. _Held: this term did not defeat the employee status._ Although the "personal service" test can be seen as a separate requirement about the terms of the individual's control, there are echos of "control" and "risk".

Answer 145

MacFarlane v Glasgow CC

Question 146

**Control test** 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’ per Richardson J Who has the ultimate right of control

Answer 146

Troutbeck v White [2013] EWCA

Question 147

one may be a professional person with a high degree of autonomy as to how the work is performed and more than one string to one's bow, and still be so closely integrated into the other party's operation as to fall within the definition.

Answer 147

Hospital Medical Group Ltd v Westwood ca

Question 148

Pimlico Plumbers v Smith

Answer 148

Autoclenz applied in the context of ‘worker’ status

Question 149

O’Kelly v Trust House Forte

Answer 149

**Mutuality of obligations test** They were wine waiters who were hired by hotel group Trusthouse Forte, they were described as regular casuals – they were called in to work at big hotel events etc. all the wine waiters were on a list, they were given preference in allocation of work depending on where they were on the list – high up, lower down, clear incentive to keep high up on the list by saying yes. They argued that each hiring was a contract of employment or could be argued that they had an umbrella contract – do lots of pieces of work over period of time, regularly, simply take the view that it’s effectively continuous employment, put an umbrella over it. CoA looked at facts, said every time the waiters are offered work they can say no, no obligations for them to offer their services on a regular basis. As a result they were simply choosing to work

Question 150

O'Kelly v Trusthouse

Answer 150

**Mutuality of obligations test** Claims were waiters in hotel. They were regular casual staff who could be called into work when required, in practise, these regular casual staff had no other employment. They claimed that they were employees, arguing that they were not at liberty to turn down work if offered, and that therefore, the hotel was under an obligation to offer them work. CA held: their claim failed because the waiters accepted the work because they needed the money, not because they were under a legal obligation to do so. Held: they were self employed.

Question 151

Most recent decision on the issue of s230(3)(b) which appears to be closer to decision of Westwood than to Byrne Brothers. The case concerned a partner in a law firm who sought to establish that she has "worker" status. It was accepted that she had a contract to perform the work personally and that the law firm could not be regarded as her customer or client. However, an attempt was made to argue that she was not a "worker" because she was not "subordinated" to the employer. Baroness Hale rejected this approach as an unwarranted gloss on the statutory legislation: "While subordination may sometimes be an aid to distinguishing workers from other self-employed people, it is not a freestanding and universal characteristic of being a worker". She suggested that a small firm might be "subordinated" to the demands of a particular client, but nevertheless independent, whereas an individual might be a worker without being "subordinated" at all, like in Westwood. while the concept of subordination might assist in distinguishing workers from other self-employed people, the Court of Appeal in that case had been wrong to regard it as a universal characteristic of workers.

Answer 151

Bates Van Winkelhof Clyde SC [2014]

Question 152

Capita Translation and Interpreting v Siauciunas [2017]

Answer 152

absence of mutuality between assignments was a relevant factor – but see now:

Question 153

Certain weeks in which there is no contract of employment do not break continuity *and* do count – s212(3). This rule applies where the employee is: **absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose** strictly interpreted, see Welton above - absence due to ‘arrangement or custom’ – must be established before or at the time the absence commences: had a career break scheme whereby employee could take a period away to bring up a child, then might be able to resume employment. She took 4 year break. She was permitted to return employment but no agreement as to continuity – they hadn’t agreed that this period wouldn’t count towards continuity. Under scheme required to resign and was then rehired – her pension had been frozen during that period. Continuity wasn’t continued – no meeting of minds, mutual expectations that continuity was continued.

Answer 153

Curr v Marks & Spencer [2003]

Question 154

This augment was successful in some earlier cases, but the courts' more recent approach has been to hold that it is only appropriate to imply a contract where the "business necessity" test is satisfied: where implying a contract is the only way to make sense of the arrangements.

Answer 154

Can a worker perusade the court that a contract can be IMPLIED between him and the end user, in the case of agency work?

Question 155

Express and Echo Publications v Tanton [1999] IRLR 367

Answer 155

substitution clause – a contract of employment could only exist where there was an obligation on the employee to provide services personally. Where, as in the instant case, a contract allowed those services to be provided by another person, the contract had to be construed as a contract for the supply for services rather than a contract of service. Accordingly, T could not be considered an employee within the meaning of s.230.

Question 156

Express v Tanton

Answer 156

**Must invole personal service** Contract between the parties provided that Mr Tanton was required to arrange for another person to do the work if he was "unable or unwilling" to do it himself. The CA held that it was impossible for the contract to be a contract of employment because employment involves personal service: the employer selects the employee and enters into a relationship of mutual trust and confidence with him. **the Court of Appeal held that because the driver's contract said he did not have to do the work personally, it could not be a contract of employment. However, a limited or occasional power to subcontract may not be fatal. In MacFarlane v Glasgow City Council (2001, IRLR 7), the EAT held that just because a gymnastic instructor could arrange a replacement from a register maintained by the council, if she was unable to attend, did not mean she could not be an employee.**

Question 158

**Mutuality of obligations test** Claims were waiters in hotel. They were regular casual staff who could be called into work when required, in practise, these regular casual staff had no other employment. They claimed that they were employees, arguing that they were not at liberty to turn down work if offered, and that therefore, the hotel was under an obligation to offer them work. CA held: their claim failed because the waiters accepted the work because they needed the money, not because they were under a legal obligation to do so. Held: they were self employed.

Answer 158

O'Kelly v Trusthouse

Question 159

An ET chairman wrongly decided that Mr Wilson was not an "employee" and therefore he could not present a claim for unfair dismissal. The EAT overrules this error. It was made because the ET chairman wrongly thought that because the employer was not under any obligation to offer work to Mr Wilson "there is no mutuality of obligation such as would be required to constitute a contract of employment". The ET chairman failed to take into account that **Mr Wilson was bound to undertake work if it was offered to him.** absence of mutuality means no obligation on either party to perform work

Answer 159

Wilson v Circular Distributors Ltd [2006]

Question 160

Cable & Wireless v Muscat [2006]

Answer 160

suggests that it may be possible to imply a contract between the employer and the end user where there is evidence of mutuality of obligation; even though being paid by agency after being placed with company, because had reworked there for over 2 years, provided with equipment, given mobile phone bill, held sufficient mutuality of obligation -\> obligation to provide him with work in return for pay. An implied contract of employment in absence of express agreement, based on conduct of the parties. Two essential requirements were found – control and mutuality of obligations. Idea of economic reality. but distinguished in the **leading case** of: James v LB of Greenwich [2008

Question 161

implied contract with end user is a separate contractual question – agency workers cannot be “employees in disguise” – Muscat was an exceptional case. James followed in: *Smith* v *Carillion* [2014] IRLR 344 James was agency worker supplied to same end user (Grenwich council) for 3 years. Fact that she had been placed for 3 years but without further evidence that she was an employee, meant that that alone didn’t make her an employee of the council. Mere passage of time didn’t alone lead to implied contract. No mutuality of obligations. But treat the cases with caution: EAT and CoA have gone in different direction following James v Grenwich case

Answer 161

James v LB of Greenwich [2008] EWCA

Question 162

Section setting out who is an employee?

Answer 162

under s230(1) ERA 1996

Question 163

per Lady Hale - suggests that the concept of ‘worker’ under the EA is broadly the same as ‘worker’ under the ERA - endorsed by the Supreme Court

Answer 163

Clyde & Co v Bates van Winkelhof [2014]

Question 164

What does Autoclenz represent?

Answer 164

represents a shift away from the strict ‘contractual approach’ but the label is still relevant in the ET’s consideration of the facts if it is deemed to be consistent with the parties’ own understanding of their agreement – if so it reflects the ‘true agreement’ in the absence of compelling evidence to the contrary: Stringfellows v Quashie [2013] EWCA

Question 165

but case concerned a clause cutting regular hours - not a typical ZHC - : had contract to work 48 hours, line manger was allowed to alter the working hours. They were drastically cut to around 20 hours a week – brought action to establish whether this was a breach of contract. Found he was entitled to 48 hours a week due to weaker bargaining power – employer had taken advantage o such a clause (seen as a zero hours clause) in such cases a clause is unenforceable – sufficient evidence under contract and experience of working at 48 hours a eek that the conduct demonstrated a normal expectation of a 48 hour week. Different from a case where no guaranteed hours the standard term of the cotnrac.t an exceptional case. 1. Insecurity and uncertainty of such contracts even if not exclusive. Some suggestion that ZHCs are unlawful as unfair contract terms:

Answer 165

Borrer v Cardinal Security [2013]

Question 166

What are the two important rules about written contracts for contractual not employment law

Answer 166

The signature rule The parol evidence rule Under the signature rule, the contracting party is bound by a contract he has signed, even if it is clear that he has no read or understood the contract.

Question 167

The contract school of thought is based on the doctrine of consideration in contract law: for consideration, there must be some kind of exchange between the parties. In many cases, the courts have held that without mutuality of obligation, there is no contract of employment because there is no contract at all.

Answer 167

Mutuality of obligations as showing there is a contract:

Question 168

Danosa

Answer 168

Court has emphasised subordination in later case, it has applied the term in a flexible way which suggests that it will not prove much of an obstacle in practise. Here a claimant was a company director who was dismissed from her employment on grounds of pregnancy. She brought a claim. The court held: the application of the worker definition required a careful assessment of the context. The court suggested that it was significant for the purposes of "subordination", that the claimant had to report on her work to the supervisory board and could be dismissed by shareholders. This suggests that the use of subordination in EU law is less about identifying employee-like relationships and more about excluding genuine self-employment from the scope of protection. On this reading, it is closer to the SC's analysis in Bates Van Winkelhof than Jivraj

Question 169

**​Personal performance** Mr Tanton contracted with the company to deliver its newspapers around Devon. A term of the contract provided: "In the event that the contractor is unable or unwilling to perform the services personally he shall arrange at his own expense entirely for another suitable person to perform the services." The Court of Appeal held that the term defeated Mr Tanton's claim to have been employed under a contract of service

Answer 169

Express & Echo Publications Ltd v Tanton

Question 170

Clyde & Co v Bates van Winkelhof [2014]

Answer 170

per Lady Hale - suggests that the concept of ‘worker’ under the EA is broadly the same as ‘worker’ under the ERA - endorsed by the Supreme Court

Question 171

Brooknight Guarding v Matei [2018]

Answer 171

Temporary zero hours contract workers can be agency workers and entitled to equal treatment with comparable directly hired worker. Agency work regulations: give agency workers who have been posted/working for an end user on a zero hours contract for more than 12 weeks (which is the period needed for agency workers to gain some rights) -\> was protected

Question 172

Pulse Healthcare v Carewatch Care Services [2012]

Answer 172

**Zero hours contract** **Held: written contract did not represent the true agreement,** **Mutuality of obligation present = employees** written contract of carers was described as a zero hours contract. Contained no fixed hours. In practice, thy worked very regular hours in shifts set by employers. Found that the written contract didn’t represent the true agreement between the parties. Autoclenz was applied based on conduct of employment relationship. Working pattern organised in specific patterns of work. They were shift workers - it was a sham, found to be employees, with mutuality of obligations. Distinguished in *Saha* v *Viewpoint Field Services Ltd*

Question 173

Parties entered into a commercial venture. Any dispute was subject to arbititration. The parties agreed that the arbitrators would be members of a certain community. When a dispute arose, one of the parties sought to appoint a member of the non-community. When this was challenged, the person appointing the arbitrator argued that the requirement to be a member of a certain community was discriminatory on grounds of religion. SC held the phrase "employed under"... a contract personally to do work" implied that a person within the definition was somehow subordinate to an employer. Since arbitrators are supposed to act independently, they are not subordinate to an employer as a matter of principle and are not therefore within the definition.

Answer 173

Jivraj v Hashwani SC

Question 174

Refers to the situation where an individual has an arrangement with an employer under which the employer does not promise any particular level of work to the individual.

Answer 174

Zero hours contracts

Question 175

Aslam, Farrar and Others v Uber, ET [2016],

Answer 175

Uber drivers – high level of control, no substitution once work accepted Drivers used own vehicles but once they turned on their app they were working personally for U and subject to their control -fare, route, customer rating system – no substitution once work accepted (distinguished Mingley) on appeal to the CA. It has gone through Employment tribunal. Question: uber driver in London be a worker? Yes because passed the personal performance test. Tribunal was being told by Uber that it is only a computer app, the drivers all work for themselves. Describing their 30,000 small businesses all linked by a platform. CJEU formed similar view of taxi drivers. This approach that drivers were working for uber as transport provider, left court to conclude that the drivers were workers and significant degree of control and therefore subordination. No contract with passenger, passenger only being provided with a service. Essential bargain was that the driver makes themselves available to uber and takes passengers to their destination. Documentation describing them as wholly independent contracts was wrong. **Passed personal performance test.**

Question 176

Lane v Shire Roofing [1995

Answer 176

the control test may not be decisive—for instance, in the case of skilled employees, with discretion to decide how their work should be done. Mr L was a building worker, hired by Shire Roofing to undertake specific job, during which he was injured. It was asked whether there was a duty of care – if he was an employee, then owed duty regarding health and safety. As the control test was not decisive, it was also necessary to consider who owned the business, in particular where the financial risk lay. Tribunal applied economic reality test – the financial risk was with the company, they had the risk for his safety.

Question 177

Cable & Wireless v Muscat

Answer 177

suggests that it may be possible to imply a contract between the employer and the end user where there is evidence of mutuality of obligation; but distinguished in the **leading case** of: James v LB of Greenwich [2008] EWCA even though being paid by agency after being placed with company, because had reworked there for over 2 years, provided with equipment, given mobile phone bill, held sufficient mutuality of obligation -\> obligation to provide him with work in return for pay. An implied contract of employment in absence of express agreement, based on conduct of the parties. Two essential requirements were found – control and mutuality of obligations. Idea of economic reality.

Question 178

1) control and/or risk test, to establish that the relationship is one of employment 2) no terms inconsistent with employee status 3) mutuality of obligation giving rise to a global contract (unless the claim arises during a wage-work bargain which, itself, constitutes a contract of employment, or unless statutory continuity can be invoked.)

Answer 178

To establish employee status which tests will the individual need to comply with?

Question 179

Little v BMI Chiltern [2009]

Answer 179

no mutuality of obligation during shift work

Question 180

Does Equality Law cover more people?

Answer 180

In theory, it adopts a broader protection than the "worker" definition, with a view to ensuring that prohibitions on workplace discrimination apply to as many people as possible. Under s83(2)(a) EA 2019, everyone who counts as an employee and worker is covered under this act.

Question 181

Jivraj v Hashwani SC

Answer 181

Parties entered into a commercial venture. Any dispute was subject to arbititration. The parties agreed that the arbitrators would be members of a certain community. When a dispute arose, one of the parties sought to appoint a member of the non-community. When this was challenged, the person appointing the arbitrator argued that the requirement to be a member of a certain community was discriminatory on grounds of religion. SC held the phrase "employed under"... a contract personally to do work" implied that a person within the definition was somehow subordinate to an employer. Since arbitrators are supposed to act independently, they are not subordinate to an employer as a matter of principle and are not therefore within the definition.

Question 182

Byrne Bros

Answer 182

EAT took a distinctively purpose approach to s230(3)(b) about the alleged employer not being a customer or client of a business. They suggested that the "control" and risk tests from the employee concept might also be applied in order to determine worker status, but that an individual might qualify as a worker even if he has more independence and took on more risk than would be acceptable in the came of an employee. BB, contractors, appealed against the decision of an employment tribunal to uphold a claim for holiday pay by its subcontractor, B. B was one of a number of workers who worked exclusively for BB as carpenters or labourers at a particular site. The workers were required to sign a subcontractor's agreement which provided that they were not entitled to holiday or sick pay. There was no obligation on BB to offer work and the workers were not obliged to accept an offer of work. Where a worker was unable to carry out the work the agreement provided that he could at his own expense provide an alternate worker but only with the express consent of BB. An employment tribunal found that they were workers within the meaning of the Working Time Regulations 1998 Reg.2(1) because they were obliged to perform work or services personally and they were not, as individuals, business undertakings. Held, dismissing the appeal, that the limited provision permitting the substitution of an alternate worker was not inconsistent with an obligation to provide services personally, and self employed workers in the construction industry were exactly the sort of worker whom the Regulations were designed to protect.

Question 183

Mutuality of obligation

Answer 183

This refers to a pair of promises: a promise on the part of the employer to provide the employee with future work, and a promise on the part of the employee to accept that work when offered it. The courts have tended to use this principle (mutuality of obligations) as a test for deciding whether or not a contract of employment is present in a particular case.

Question 184

had a ‘zero hours contract’ but there was a set working pattern – was mutuality of obligations

Answer 184

Pulse Healthcare v Carewatch Care Services [2012]

Question 185

Uber drivers – high level of control, no substitution once work accepted Drivers used own vehicles but once they turned on their app they were working personally for U and subject to their control -fare, route, customer rating system – no substitution once work accepted (distinguished Mingley) on appeal to the CA. It has gone through Employment tribunal. Question: uber driver in London be a worker? Yes because passed the personal performance test. Tribunal was being told by Uber that it is only a computer app, the drivers all work for themselves. Describing their 30,000 small businesses all linked by a platform. CJEU formed similar view of taxi drivers. This approach that drivers were working for uber as transport provider, left court to conclude that the drivers were workers and significant degree of control and therefore subordination. No contract with passenger, passenger only being provided with a service. Essential bargain was that the driver makes themselves available to uber and takes passengers to their destination. Documentation describing them as wholly independent contracts was wrong. **Passed personal performance test.**

Answer 185

Aslam, Farrar and Others v Uber, ET [2016],

Question 186

Where is the worker concept defined?

Answer 186

s23O(3) ERA 1996. Under s230(3)(b) to satisfy this definition, the individual must prove that he: 1) has a contract with alleged employer 2) to perform work personally 3) for someone who is not the customer of a business he or she is running.

Question 187

EAT took a distinctively purpose approach to s230(3)(b) about the alleged employer not being a customer or client of a business. They suggested that the "control" and risk tests from the employee concept might also be applied in order to determine worker status, but that an individual might qualify as a worker even if he has more independence and took on more risk than would be acceptable in the came of an employee. BB, contractors, appealed against the decision of an employment tribunal to uphold a claim for holiday pay by its subcontractor, B. B was one of a number of workers who worked exclusively for BB as carpenters or labourers at a particular site. The workers were required to sign a subcontractor's agreement which provided that they were not entitled to holiday or sick pay. There was no obligation on BB to offer work and the workers were not obliged to accept an offer of work. Where a worker was unable to carry out the work the agreement provided that he could at his own expense provide an alternate worker but only with the express consent of BB. An employment tribunal found that they were workers within the meaning of the Working Time Regulations 1998 Reg.2(1) because they were obliged to perform work or services personally and they were not, as individuals, business undertakings. Held, dismissing the appeal, that the limited provision permitting the substitution of an alternate worker was not inconsistent with an obligation to provide services personally, and self employed workers in the construction industry were exactly the sort of worker whom the Regulations were designed to protect.

Answer 187

Byrne Bros

Question 188

**Mutuality of obligations test** - zero hours contract, ‘casual as required’, no global or umbrella contract, no mutuality tour guides at power station, they could choose to refuse work, no mutuality of obligation). Problem: places mutuality of obligation above dependency and economic subordination.

Answer 188

Carmichael v National Power [2000] IRLR 43 (HL) SC

Question 189

She was a dancer, described as self-employed on the contract but how she conducted the work was to be determined by Stringfellows, had very strict rules. High level of control – however, she wasn’t paid by him but directly by his clients at the club, she even had to pay him to work at the club. Under considerable control, dependent for income through the clients of the employer. **Employment tribunal** found that there was no obligation on him to pay her under the contract, paid to be provided with opportunity to earn money. **CoA** reinstated the tribunals’ decision, did so specifically on issue of risk – overrode issue of control, issue of taking economic risk is powerful pointer against contract beng contract of employment.

Answer 189

Stringfellows v Quashie CA

Question 190

Cornwall CC v Prater CA

Answer 190

Use of s212 was illustrated in this case. The claimant was a teacher who provided home tutoring for school pupils who were unable to attend school. She worked for the council for 10 years under a series of different assignments of varying duration. CA held: once each individual contract was entered into and continued, the claimant was obliged to teach the particular pupil made available to her and the council was obliged to pay her for teaching that pupil; that that was sufficient mutuality of obligation, relating to the work provided and performed under the contract, to establish that each teaching engagement was a contract of service; that, if the claimant had been engaged to teach pupils in a class collectively or individually at a school under a single continuous contract, she would clearly have been employed under a contract of service, and it made no difference to the position at law that she was engaged to teach pupils individually out of school under a series of separate concurrent or successive contracts; and that, therefore, the employment tribunal had been entitled to find that the periods when the claimant was not working were temporary cessations of work within section 212(3) of the Employment Rights Act 1996 and that, accordingly, the claimant was to be regarded as an employee of the council continuously during the relevant period.

Question 191

**Employees:** *subordination, control, dependency, mutuality, obligations* **Workers:** Is dependent but not necessarily subordinate, may be self-employed for tax purposes **Self employed:** independence, autonomy, risk

Answer 191

Distinguish between: employees, workers and self-employed people

Question 192

Motorola v Davidson [2001]

Answer 192

court applied the control test. Worker in question used tools in company, wore their uniform, booker holidays through line manager, raised grievance with end user. After period of time, terminated the relationship. Found that although initially hired by agency, he was treated as though he had been directly hired by them. Possible to bring unfair dismissal claim against them.

Question 193

Bates Van Winkelhof Clyde SC [2014]

Answer 193

Most recent decision on the issue of s230(3)(b) which appears to be closer to decision of Westwood than to Byrne Brothers. The case concerned a partner in a law firm who sought to establish that she has "worker" status. It was accepted that she had a contract to perform the work personally and that the law firm could not be regarded as her customer or client. However, an attempt was made to argue that she was not a "worker" because she was not "subordinated" to the employer. Baroness Hale rejected this approach as an unwarranted gloss on the statutory legislation: "While subordination may sometimes be an aid to distinguishing workers from other self-employed people, it is not a freestanding and universal characteristic of being a worker". She suggested that a small firm might be "subordinated" to the demands of a particular client, but nevertheless independent, whereas an individual might be a worker without being "subordinated" at all, like in Westwood. while the concept of subordination might assist in distinguishing workers from other self-employed people, the Court of Appeal in that case had been wrong to regard it as a universal characteristic of workers.

Question 194

This section is designed to make it more difficult for an employer to defeat a claim that an individual has continuous employment, by providing various breaks in employment do not break the legal concept of continuity.

Answer 194

What is the statutory continuity mechanism in s212 ERA 1996?

Question 195

Zero hour contract. No mutuality irregular hours, no obligation to accept work = no mutuality of obligation. Distinguished in Pulse Healthcare v Carewatch Care Services [2012]

Answer 195

Saha v Viewpoint Field Services

Question 196

What did the case of Autoclenz change?

Answer 196

Prior to this case, the court followed the contractual approach, apart from denying employers the option for boundary manipulation. But Autoclenz SC laid down a different approach to written contracts in the employment sphere

Question 197

taxi drivers who can take their own fares are not workers– distinguished in *Uber* *Subsitution was allowed once work was accepted*

Answer 197

Mingeley v Pennock [2004]

Question 198

Pulse Healthcare v Carewatch

Answer 198

Found that zero-hours term in the contract did not reflect the true arrangement between the parties and that the employees in the case had in fact regular working hours.

Question 199

Scope of ‘worker’ concept in s230(3)(b): Autoclenz v Belcher (SC) – 3 requirements

Answer 199

1. **must be an individual who has entered into or worked under a contract with another party for work or services** 2. **the individual undertakes to perform the work personally for that party** – applied in Pimlico Plumbers (This means that there is no obligation on the party of the person to work for another. But when they do, they have an obligation to perform the work personally.) 3. **the other party does not have the status of a client or customer of the individual** - Westwood No requirement for mutuality of obligations or subordination, per Lady Hale in Bates van Winkelhof, but must be an obligation to perform work personally, Sultan-Darmon

Question 200

Appellant was an equity partner. She wanted to be considered as a worker for whistle blowing protection. judge Peter Clark allowed her appeal (EAT)and held that she was a worker. She was an integral part of the LLP's business, she could not offer her services to anyone else, she was in a subordinate position and the LLP was not her client. (The Court of Appeal commented that Judge Clark “appears to have considered the issue of subordination in the context of determining whether the LLP was a client or customer rather than as an independent requirement in its own right”: CA HELD: not a worker **HL -** She provided services "for" the LLP and worked personally. **While subordination may sometimes be an aid to distinguishing workers from other self-employed people, it is not a freestanding and universal characteristic of being a worker.​** there is “not a single key to unlock the words of the statute in every case”.

Answer 200

Clyde & Co LLP and another v Bates van Winkelhof

Question 201

Quashie v Stringfellow

Answer 201

Ms Quashie was a lap-dancer in a nightclub. Customers brought vouchers in the club that they could use to pay her for dances. At the end of the evening, she would present her vouchers, who would give her money, after deducting various fees. A key fact was that she could be out of pocket at the end of the evening if she did not earn enough by performing. This assumption of economic risk was one of the factors which led the CA to conclude that she was not an employee. The economic risk Q took was also a powerful pointer against there being a contract of employment and the lack of any obligation to pay precluded the establishment of such a contract, O'Kelly v Trusthouse Forte Plc [1984] Q.B. 90, [1983] 7 WLUK 211considered. The tribunal’s conclusion was reinforced by the fact that the contract terms involved Q accepting that she was self-employed, and she conducted her affairs on that basis, paying her own tax,

Question 202

MacFarlane v Glasgow City Council [2001] IRLR 7

Answer 202

However, a limited or occasional power to subcontract may not be fatal. the EAT held that just because a gymnastic instructor could arrange a replacement from a register maintained by the council, if she was unable to attend, did not mean she could not be an employee.

Question 203

Trainees are included as "employees" within ERA 1996 s230(1)

Answer 203

Daley v Allied Suppliers [1983]

Question 204

Hospital Medical Group v Westwood [2012]

Answer 204

Medical group engaged a doctor to provide advice and treatment for a patient suffering from hair loss. HMG were under no obligation to pay him unless patents wanted to use his services. Nevertheless, he undertook to do this work exclusively for HMG, the tribunal found that he was a worker on the basis of being integrated into the organisation – committed to working for HMG. Even though he was involved in running a business, he was in a relationship that was integrated in the work of the clinic and it would be incorrect to describe HMG as a client or customer. As he was working exclusively full time for HMG and had commitment to them it could not be a client or customer relationship. Here, there was an employment relationship albeit unusual. This was reinforced in SC case bates Van Winkelhof

Question 205

Stringfellows v Quashie CA

Answer 205

She was a dancer, described as self-employed on the contract but how she conducted the work was to be determined by Stringfellows, had very strict rules. High level of control – however, she wasn’t paid by him but directly by his clients at the club, she even had to pay him to work at the club. Under considerable control, dependent for income through the clients of the employer. **Employment tribunal** found that there was no obligation on him to pay her under the contract, paid to be provided with opportunity to earn money. **CoA** reinstated the tribunals’ decision, did so specifically on issue of risk – overrode issue of control, issue of taking economic risk is powerful pointer against contract beng contract of employment.

Question 206

Medical group engaged a doctor to provide advice and treatment for a patient suffering from hair loss. HMG were under no obligation to pay him unless patents wanted to use his services. Nevertheless, he undertook to do this work exclusively for HMG, the tribunal found that he was a worker on the basis of being integrated into the organisation – committed to working for HMG. Even though he was involved in running a business, he was in a relationship that was integrated in the work of the clinic and it would be incorrect to describe HMG as a client or customer. As he was working exclusively full time for HMG and had commitment to them it could not be a client or customer relationship. Here, there was an employment relationship albeit unusual. This was reinforced in SC case bates Van Winkelhof

Answer 206

Hospital Medical Group v Westwood [2012]

Question 207

held: client or customer of NHS, not having relationship of economic dependency. Dentistry can decide not to offer services to the NHS and become only open to private patients. So there was no oblgiation to perform work. No requirement for mutuality of obligation cf. Baird, above, or ‘subordination’, per Baroness Hale in Clyde & Co v Bates van Winkelhof [2014] UKSC 32. This was obiter in that case because there was control. – endorsed in Pimlico Plumbers v Smith [2018] UKSC 29, but must be an obligation to perform work : Community Dental Centres v Sultan - Darmon

Answer 207

Community Dental Centres v Sultan-Darmon

Question 208

Uber drivers performed work personally for Uber not the customer – under the control of Uber and available for work when the driver’s app was switched on uber taxi drivers would found to be working everytime theu turn on the app, meaning the driver was working. Even though they may perform numerous assignments in a day, each together show relationship.

Answer 208

Uber v Aslam, Farrar, Dawson & Others [2017] UKEAT

Question 209

‘principle of equal pay for male and female workers’ – ‘worker’ must be in a relationship of subordination with the person who receives the services 1. where EU law defines who is a ‘worker’ – given an autonomous EU meaning by the CJEU:

Answer 209

Allonby v Accrington and Rossendale College [2004]

Question 210

Why do we have a "worker" category?

Answer 210

Some people fell outside the "employee" category, so this includes people.

Question 211

M&P Steelcraft v Ellis [2008]

Answer 211

Any agreement between the parties to waive continuity would be void – s203: ## Footnote Parties cannot agree to break continuity – PROTECTS EMPLOYEE, the weaker party of the relationship.

Question 212

substitution clause – a contract of employment could only exist where there was an obligation on the employee to provide services personally. Where, as in the instant case, a contract allowed those services to be provided by another person, the contract had to be construed as a contract for the supply for services rather than a contract of service. Accordingly, T could not be considered an employee within the meaning of s.230.

Answer 212

Express and Echo Publications v Tanton [1999] IRLR 367

Question 213

Temporary zero hours contract workers can be agency workers and entitled to equal treatment with comparable directly hired worker. Agency work regulations: give agency workers who have been posted/working for an end user on a zero hours contract for more than 12 weeks (which is the period needed for agency workers to gain some rights) -\> was protected

Answer 213

Brooknight Guarding v Matei [2018]

Question 214

What is Agency work?

Answer 214

Agency work is where the end user contracts with the agency for the supply of workers, and the agency provides suitable people who are "on its books" looking for work. Although the workers normally perform their tasks under the careful supervision by the end user, they are usually paid via the agency.

Question 215

: implied contract with end user is a separate contractual question – agency workers cannot be “employees in disguise” – Muscat was an exceptional case. But treat the cases with caution: EAT and CoA have gone in different direction following James v Grenwich case, James was agency worker supplied to same end user (Grenwich council) for 3 years. Fact that she had been placed for 3 years but without further evidence that she was an employee, meant that that alone didn’t make her an employee of the council. Mere passage of time didn’t alone lead to implied contract. No mutuality of obligations. James followed in: *Smith* v *Carillion* [2014] IRLR 344

Answer 215

James v LB of Greenwich [2008] EWCA

Question 216

CA in Yewen v Noakes established it, but Ready Mixed Concrete confirmed it.

Answer 216

What is the control test?

Question 217

Donnelly v Kelvin International Services

Answer 217

Certain weeks in which there is no contract of employment do not break continuity and do count – s212(3). This rule applies where the employee is: 1. **incapable of work in consequence of sickness or injury** [for not more than twenty-six weeks – s212(4)] incapable of *that* work: absence must be by reason of sickness or injury:

Question 218

Autoclenz applied in the context of ‘worker’ status

Answer 218

Pimlico Plumbers v Smith

Question 219

Kocur v Royal Mail [2018]

Answer 219

Question before tribunal was “can an agency worker entitled after 12 weeks of placement as the same end users employees, be compensated for having unpaid breaks by being a higher hourly pay?” Individual got high hourly pay but less holiday (among one or two others). Tribunal found this higher pay offset the loss of holiday, so there is no breach of equal principle. On appeal found: an agency cannot offset a failure to convey a specific entitlement under the regulations, I.E there should be “the SAME” holiday. The entitlement is for the same terms and conditions between employees, NOT by comparing the overall package. There might besome flexibility to pay holiday pay as a lump sum, but this must be ttransparent and made clear to the worker.

Question 220

Prior to this case, the court followed the contractual approach, apart from denying employers the option for boundary manipulation. But Autoclenz SC laid down a different approach to written contracts in the employment sphere

Answer 220

What did the case of Autoclenz change?

Question 221

Daley v Allied Suppliers [1983]

Answer 221

Trainees are included as "employees" within ERA 1996 s230(1)

Question 222

under s230(1) ERA 1996

Answer 222

Section setting out who is an employee?

Question 223

Little v BMI Chiltern Hospital

Answer 223

Claimant was a hospital porter. If there was no work for him to do during his shift, he could be sent home and not paid for the remainder of the shift. The Employment Appeal Tribunal held: his engagements were not contracts of employment because there was no mutuality of obligation DURING the shift, in the sense of no obligation to provide work and pay throughout it. On this view, a wage-work bargain is only a miniature contract of employment where the employer is obliged to pay the individual for the whole of the agreed shift.

Question 224

the court must look at the substance not the label [and recognise that] in the field of work … the reality may be that that the … employer dictates what the written agreement will say and the … employee must take it or leave it’, per LJ Smith

Answer 224

Protectacoat Firthglow v Szilagyi [2009] CA

Question 225

Agency work is where the end user contracts with the agency for the supply of workers, and the agency provides suitable people who are "on its books" looking for work. Although the workers normally perform their tasks under the careful supervision by the end user, they are usually paid via the agency.

Answer 225

What is Agency work?

Question 226

There are three tests for detemining whether a person has a contract of employment and is therefore an employee, what are they

Answer 226

1) control 2) risk Third overarching test of : mutuality of obligation - this helps us distinguish between an employee and a worker

Question 227

In some situations, employers employ skilled workers and give them a high degree of discretion: for example a doctor treating patients.

Answer 227

Critisisms with the control test

Question 228

Court of Appeal in Halawi v WDFG UK Ltd (t/a World Duty Free) [2014] EWCA

Answer 228

Mrs Halawi had been working as a beauty consultant in a duty-free outlet at Heathrow airport, managed by World Duty Free.Mrs Halawi's role was to sell Shiseido's products there. Her contract , was with a management services company which sold her services on. **Held:** 1. No contract with the WDF of any sort. 2. necessary degree of subordination of Mrs Halawi to WDF was absent 3. power of substitution negated any obligation of personal performance.

Question 229

HMG engaged Westwood to provide advice and treatment at its clinic to patients suffering from hair loss. HMG was under no obligation to pay him unless patients wanted to use his service. Westwood's main job was as a GP, and he also worked for another clinic, but he undertook to provide hair loss treatment exclusively through HMG. CA upheld EAT's finding that he was a worker on the basis of the integration test drawn up from Cotswold Developments v Williams. Although Westwood was found to be running his own business, it was held that he was integrated into the clinic's work, in that he was presented by HMG to patients as "its" surgeon, and because it did not make sense to describe HMG as the customer of Westwood's business. This decision can be seen as broadening the worker test because it accepts that an individual can run a business and still be a worker, provided that the recipient of the business's service cannot be described as a customer.

Answer 229

Hospital Medical Group v Westwood

Question 230

**If no control, integration into the organisation is sufficient** ‘under a contract of employment, a man is employed as part of the business and his work is done as an integral part of the business; whereas under a contract for services his work, although done for the business, is not integrated into it but is only accessory to it’ per Denning LJ But work that is done FOR the business, is not integrated, only accessory. Therefore, integration tests are not good for non-standard forms of employment. Hospital workers were employees, they were integrated into the business. Doesn’t apply to agency worker that ends up with end user, cant use integration test.

Answer 230

Stevenson, Jordan & Harrison v MacDonald & Evans

Question 231

arbitrator found not to be subordinate – case may be confined to its facts. Equality Act s83(2) = those within this concept are ‘employees’ under that Act – deemed to be in employment – definition similar to s230(3)(b) ERA except that no reference to client or customer Subordination requirement? Compare Jivraj (SC) with Lady Hale in Bates van Winkelhof (SC) - latter suggests that the concept of employee is broadly the same as ‘worker’, endorsed in Pimlico Plumbers (obiter)

Answer 231

Jivraj v Hashwani [2011] UKSC

Question 232

Ordinary law of contract is not fussy about what the parties promised each other. There is no requirement that the pair of promises have any particular content. But in employment cases, the courts have insisted that the parties' promises have particular content: the employer must promise future work and the employee must promise to accept it. In O'Kelly - it coudl be argued that there were some promises in this case. The employer promised to keep the casual waiters on a list and give them priority when work arrived. These 'lesser' promises do not satisfy the courts that mutuality of obligation is fulfilled. Therefore, mutuality is more than just establishing the presence of a contract kind: it helps classify that the contract is one of employment.

Answer 232

Alternative view on mutuality of obligations

Question 233

Motorola v Davidson

Answer 233

Agency worker court applied the control test. Worker in question used tools in company, wore their uniform, booker holidays through line manager, raised grievance with end user. After period of time, terminated the relationship. Found that although initially hired by agency, he was treated as though he had been directly hired by them. Possible to bring unfair dismissal claim against them.

Question 234

Confirmed the control test in Yewen v Noakes. MacKenna defied control as: including "the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done" 1) deciding the thing to be done 2) the way in which it shall be done 3) the means to be employed in doing it 4) the time when 5) the place where it shall be done In modern literature the control test is sometimes express in terms of subordination,. T W M T P

Answer 234

Ready Mixed Concrete

Question 235

Why was the mutuality of obligations test evolved?

Answer 235

Evolved to distinguish between ‘employee’ (common law) and ‘worker’ (statute).

Question 236

In addition to the requirement of personal service - it is also necessary to show that there is a relationship of subordination before an individual falls within the Equality Act definition. Therefore, the Equality Act may now be narrower than the worker concept, because the requirement of subordination was rejected for the worker concept in Bates Van Winkelhof. On this view, the doctor in Westwood would be entitled to the NMW but not to the protection of equality law because he provided his work personally to the hospital but was not subordinated to it. Baroness Hale in Bates avoided this conclusion by treating the subordination requirement in Jivraj as having been "introduced in order to distinguish the immediate category [of workers] from people who were dealing with clients or customers on their own accounts". She believed that the worker definition and the Equality Act definition were broadly the same. The best solution would be to confine Jivraj on its unusual facts.

Answer 236

Impact of Jivraj v Hashwani

Question 237

Autoclenz v Belcher SC [2011]

Answer 237

1. Subsitution clause 2. Employer not oblidged to offer work 3. Said in contract they were self employed. Lord Clarke - relative bargaining powers of party must be taken into account when deciding whether the terms of any written agreement represents what was agreement. "The true agreement will often have to be gleaned from all the cirucmsrances of the case, of which the written agreement is only a part". SC laid down a different approach to written contracts in the employment sphere. Claimants were valeters. Various terms of the written contract they had signed suggested that they were self-employed: the employer was not obliged to offer them work, or accept work if offered, and they were entitled to send a substitute instead of doing the work themselves. SC Held: the Snook test was not the only situation in which the courts might be entitled to disregard a written agreement. There was a more general power to do so where contracts were concluded in situations of inequality of bargaining power. Lord Clarke - relative bargaining powers of party must be taken into account when deciding whether the terms of any written agreement represents what was agreement. **HELD**: valenters were employees because as they were obliged to turn up each day and complete their work themselves under the employer's detailed supervision. "The true agreement will often have to be gleaned from all the cirucmsrances of the case, of which the written agreement is only a part".

Question 238

Mutuality of obligations as showing there is a contract:

Answer 238

The contract school of thought is based on the doctrine of consideration in contract law: for consideration, there must be some kind of exchange between the parties. In many cases, the courts have held that without mutuality of obligation, there is no contract of employment because there is no contract at all.

Question 239

s23O(3) ERA 1996. Under s230(3)(b) to satisfy this definition, the individual must prove that he: 1) has a contract with alleged employer 2) to perform work personally 3) for someone who is not the customer of a business he or she is running.

Answer 239

Where is the worker concept defined?

Question 240

Protectacoat Firthglow v Szilagyi [2009] CA

Answer 240

the court must look at the substance not the label [and recognise that] in the field of work … the reality may be that that the … employer dictates what the written agreement will say and the … employee must take it or leave it’, per LJ Smith

Question 241

Two main problems with Zero hours contract

Answer 241

1) they do not have any guaranteed level of income 2) their employment status is uncertain There is no mutuality of obligation so they will not be classified as an employee.

Question 242

1) Control 2) risk 3) overarching mutuallity of obligations test

Answer 242

What are the two tests to see whether B owes A the obligations of an employer?

Question 243

Suhail v Barking

Answer 243

GP was a client or customer of the hospital trust – *Westwood* distinguished This case could be distinguished from Westwood, the essential point in Westwood being that, although Dr Westwood had other "jobs", the key factual finding was that he had agreed to provide his services as a hair restoration surgeon exclusively to HMG, he did not offer that service to the world in general, and he was recruited by HMG to work as an integral part of its operations. That exclusivity was wholly missing on the facts of the present case. Not a worker

Question 244

Carmichael v National Power [2000] IRLR 43 (HL) SC

Answer 244

**Mutuality of obligations test** - zero hours contract, ‘casual as required’, no global or umbrella contract, no mutuality tour guides at power station, they could choose to refuse work, no mutuality of obligation). Problem: places mutuality of obligation above dependency and economic subordination.

Question 245

**An agency worker can be on a zero-hour contract and be temporary but still gain rights after 12 weeks service at an end user**. In this case the right was to the same terms and conditions as the security guard employed directly by the end user, Mitie. employee on zero hours contract if position was temporary rather than permanent. ET said yes. This man was mainly working for a particularclient and dismissed after 21 months. Claimant said sufficient to show agency worker and same conditions as the directly employed staff as the other. Due to control and direction that had been applied to the zero hours worker, they should be treated as having been supplied temporarily and Agency work regulations should apply.

Answer 245

Brooknight Guarding v Matei [2018]

Question 246

Claimant was a hospital porter. If there was no work for him to do during his shift, he could be sent home and not paid for the remainder of the shift. The Employment Appeal Tribunal held: his engagements were not contracts of employment because there was no mutuality of obligation DURING the shift, in the sense of no obligation to provide work and pay throughout it. On this view, a wage-work bargain is only a miniature contract of employment where the employer is obliged to pay the individual for the whole of the agreed shift.

Answer 246

Little v BMI Chiltern Hospital

Question 247

To establish employee status which tests will the individual need to comply with?

Answer 247

1) control and/or risk test, to establish that the relationship is one of employment 2) no terms inconsistent with employee status 3) mutuality of obligation giving rise to a global contract (unless the claim arises during a wage-work bargain which, itself, constitutes a contract of employment, or unless statutory continuity can be invoked.)

Question 248

suggests that it may be possible to imply a contract between the employer and the end user where there is evidence of mutuality of obligation; but distinguished in the **leading case** of: James v LB of Greenwich [2008] EWCA even though being paid by agency after being placed with company, because had reworked there for over 2 years, provided with equipment, given mobile phone bill, held sufficient mutuality of obligation -\> obligation to provide him with work in return for pay. An implied contract of employment in absence of express agreement, based on conduct of the parties. Two essential requirements were found – control and mutuality of obligations. Idea of economic reality.

Answer 248

Cable & Wireless v Muscat

Question 249

Can a contract of employment be oral?

Answer 249

it can be oral or in writing. Where it is oral, the court will figure out from the parties' claims and the surrounding circumstances exactly what they agreed. Where it is written, the court can interpret and classify the contract document, But labour lawyers generally argue that written contracts should be given less weight in the employment context than they are in the commercial context because of risk of "boundary manipulation": the use of the written contract b y the employer to make it look as if the individual is in a category with fewer employment rights.

Question 250

Stevenson, Jordan & Harrison v MacDonald & Evans

Answer 250

**If no control, integration into the organisation is sufficient** ‘under a contract of employment, a man is employed as part of the business and his work is done as an integral part of the business; whereas under a contract for services his work, although done for the business, is not integrated into it but is only accessory to it’ per Denning LJ But work that is done FOR the business, is not integrated, only accessory. Therefore, integration tests are not good for non-standard forms of employment. Hospital workers were employees, they were integrated into the business. Doesn’t apply to agency worker that ends up with end user, cant use integration test.