Status of employment Flashcards
Introduction
s.230 + 230 (3) Employment Rights Act 1996 Health and Safety at Work 1974 Working Time Regulations 1998 Income Tax Act 2003 Lister v Hedley Hall 2001
s 230 of Employment Rights Act 1996
‘An employee is a person who has entered into or works under a contract of employment’
s 230(3) of Employment Rights Act 1996
‘A person who has entered into a contract of employment or any other contract providing a service or any work for another part whose status is not by virtue of the contract that of a client or a customer.’
Same protection to employees and independent contractors
Work and Safety at Work 1974
Working Time Regulations 1998
Different protection
Income Tax Act 2003
Lister v Hedley Hall 2001
Control test
Narich Pty Ltd v Pay-Roll Tax Yewes v Noaks Walker v Crystal Palace FC White v Troutbeck Hitchcock v Post Office Ready Mixed Concrete v Minister of Pensions
The more control an employer exercises upon an individual, the more likely it is that person is an employee
Narich Pty Ltd v Pay-roll tax
An individual is considered to be an employee under the Control test where the employer tells him what to do and how to do it
Yewens v Noaks + Walker v Crystal Palace FC
Integration Test
Lord Denning in Stevenson, Henderson v Macdonald
Whittaker v Minister of Pensions and National Insurance
‘under a contract of service, a man is employment as part of the business and his work is done as an integral part of the business.’
Lord Denning in Stevenson, Jordan, Harrison v Macdonald & Evans
The employee has to perform certain duties - common sense test, but vague
Whittaker v Minister of Pensions and National Insurance
Lord Denning in Stevenson, Jordan Harrison V Macdonald&Evans
‘under a contract of service, a man is employment as part of the business and his work is done as an integral part of the business.’
Economic Reality Test
Cooke J in Market Investigations v Minister for Social Security
Lee v Chung
Lane v Shire Roofing
Cooke J in Market Investigations v Minister for Social Security (1969)
‘the fundamental test to be applied is this: Is the person who engaged himself to perform these services performing them as a person in business on his own?’
Economic reality test - to be considered
-Financial Risk
-Own Money
-Own Tools
-Capacity to hire/fire people
Cooke J ‘No exhaustive list can be complied of the considerations which are relevant to the question.’
Lane v Shire Roofing
Policy grounds while deciding upon the Economic Reality Test
Multiple Test
McKenna J in Ready Mixed Concrete v Minister of Pensions and National Insurance (1968)
Carmichael v National Power
McKenna J in Ready Mixed Concrete v Minister of Pensions and National Insurance (1968)
The courts need to look at the following:
- whether the individual performs work for remuneration
- whether the individual is under a sufficient control by the employer
- whether any other factors of the contract of employment are present
Carmichael v National Power plc
Relevant for Multiple test - approved by HoL
Consideration - work for remuneration
Casual workers - Lord Irvine
Personal Service
Express&Echo v Tanton
MacFarlane v Glasgow City Council
Express & Co v Tanton
The person cannot send a substitute
MacFarlane v Glasgow City Council
The individual was able to send a substitute (gymnastic instructor from a public register)
Mutuality of obligation
Carmichael v National Power plc
Cornwall v Prater 2006
Cornwall v Prater 2006
The Supreme Court decided that the employer does not have to provide the individual with continuing work in order to consider him an employee.
