lecture 1 & 2 - employment law intro

Question 1

how does the common law define the contract of employment?

Answer 1

key tests:
* control (does the employer have control over what the employee does)
* integration/business reality (how integrigated are they in the business eg. are they wearing the comapnies colours? do they have their logo on their trucks?)
* mutuality obligation (O’Kelly case)

• multiple approach

Question 2

is the test applied a question of law or fact?

Answer 2

the test applied by the ET to disginguish contract of employment from contract fpr services is a question of law

Question 3

is the application of the test a question of law or fact?

Answer 3

the application of the test(s) in a particular case is a **question of fact **

NB: the employment tribunal, which is a fact binding tribunal, will make a decison based upon the facts that they find, but they have to apply the legal test.

so they apply the legal test to the fact that they are found. so in one sense, its a mix in terms of the application but of course the outcome depends upin the facts. so the test applied is a legal test, the outcome will depend on the facts.

the tribunal makes a decision and the employment appeal tribunal won’t intervene, they won’t reverse that decision unless there has been an error of law.
so you can only appeal to the employemnt tribunal, if on the basis that there has been an error of law