Vital

Question 1

Bob Watt

Answer 1

Believed the “but why” test that Lord Browne Wilkinson spoke of in Zafar (HL) should be used. Shamoon also spoke of the but why test.

Question 2

Taylor Review

Answer 2

The HMRC should enforce holiday and sick pay. At the moment, they only enforce NMW.

Higher minimum wage for ZHCs to discourage employers from putting employee’s on ZHC

Question 3

Deakin and Morris

Answer 3

The statutory shcmeme offers little substantive protection in regards to deductions, for example no requirement that the employer gives work a hearing before making deductions.

Possible the implied term of mutual trust and confidence will help but no case of this and it will be hard to rely on, in the face of clear and express rights.

Question 4

Mead

Answer 4

Criticises analysis in Wiluszynski

Question 5

Burrow

Answer 5

Employee’s could bring a claim in unjust enrichment. Hard to argue

Question 6

Opt Outs

Answer 6

Survey in 2011 found that 1/3 of workers signed opt outs. European Commission openly disapproves of the UK’S abuse of the opt out.

The governments proposals:
Opt out renewered annually
prohibitation on opt out at the time of signing the contract
cap of 65 hours per week on opted out workly weeks.

Question 7

Barnard

Answer 7

The Burrell test effectively ignores the “work of a particular kind” element

Question 8

Collins

Answer 8

Disagrees with redundancy payments. Redundancy payments can cause problems for employers.

It fails to achieve any intelligent policy

Income support should be undertaken by the State

Question 9

Bogg

Answer 9

Following Autoclenz, the signature rule no longer applies in employment context. Due to difference of ordinary contracts and employment contracts.

The parol evidence rule is playing a greater role in employment law

Question 10

Taylor Review

status

Answer 10

Define worker using primary legislation.

Status should be renamed “dependant contractor”. The status is most likely to apply to the gig economy (deliveroo/uber).

Question 11

Ewan McGaughey 

Answer 11

First, we should relabel the intermediate ‘workers’ category as ‘dependent contractors’, and make ‘greater use of secondary legislation’ to clarify what the categories mean. 11 Second, it says that tax levels for employed and self-employed ‘should be moved closer to parity’. 12 It applauds the ‘Estonian Tax and Custom Board’ who ‘have been working with Uber’ on a ‘project which simplifies taxation for Sharing Economy Workers’.13 Third, it says that ‘rolled-up holiday pay’ should be re-introduced. Instead of getting holidays, people get an entry of ‘12.07 per cent’ in their pay slips. First, relabelling ‘worker’ status (like rebranding the ‘minimum’ as a ‘living wage’17) does not change the law. Third, reintroducing ‘rolled-up holiday pay’ would, as the litigation to ban that practice showed in 2006,23 be the same as abolishing paid holidays. For anyone earning more than the minimum wage, employers will probably reduce wages by the rolled up holiday pay rate. This eliminates the right, and deprives the law of its social objective: that people actually take holidays.
Mutuality of obligations:
in O’Kelly v Trusthouse Forte plc, a new Court of Appeal led by Sir John Donaldson MR held that for casual waiters (seeking to unionise) to be ‘employees’, their employer had to have accepted an ongoing duty to offer work and the staff an ongoing duty to accept it.

in Autoclenz Ltd v Belcher, the UK Supreme Court ended the debate. It set out an exhaustive multi-factor test for who is an employee. At no stage did the Supreme Court accept, or even indirectly refer to the O’Kellyconcept of mutuality, or any cases that endorse it.52 It did the opposite. The Supreme Court in Autoclenz specifically endorsed the ‘consideration’ view of mutuality. mutual obligations as consideration,54 not an ongoing duty to offer and accept work.

HMRC says:
• All contracts have mutuality as otherwise no contract would exist; without an obligation for the parties to do something the arrangement is not a contract and may be an unaccepted offer or heads of terms which will become a contract when accepted or by conduct such as starting work.
• Where work is provided and remuneration is paid HMRC will assume that there is mutuality of obligation and that a contract exists.
On the HMRC website, it says:
The basic requirements as to the mutual obligations necessary to determine whether there is a contract in existence at all are:
• that the engager must be obliged to pay a wage or other remuneration, and
• that the worker must be obliged to provide his or her own work or skill.