Working Relationship Flashcards
s230 ERA 1996
Employee definition: ‘an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment’
s230(1) ERA 1996
Contract of employment definition: “a contract of service or apprenticeship, whether express or implied, and (if express) whether oral or in writing”
Hawley v Luminar Leisure Ltd and ors [2006]
Bouncer employed by service company who contracted him. Was required to submit to code of conduct. Employment contract still stands. Temporary employee of Luminar - employed for both but doesn’t remain fixed
Troutbeck SA v White and ors [2013]
Bought a small farm as an investment. Sought to engage help, who were allowed to live rent-free and given an allowance. Both had other jobs. Representative told them to leave without process being abided by. Had to prove they were employees - CA = don’t need day-to-day control and they were employed.
Airfix Footwear Ltd v Cope [1978]
Home delivery of shoe parts - argument that she wasn’t an employee based on lack of skill or integral part of the company
Argent v Minister of Social Security [1968]
Actor for a school, and RSC. Given no syllabus and no admin responsibilities. Decided he wasn’t an employee. However, because he was skilled, he could be an employee on his own account.
Ready-Mixed Concrete (South-East) Ltd v Minister of Pensions and NI [1968]
RMC decided they would manufacture and delivery concrete. Decided that if drivers were self-employed, they would work better, look after vehicles and make RMC more profitable. The drivers employed a relief driver. When too much work, RMC temporary employed workers. Argument over control. RMC succeeded as drivers were self-employed.
Express and Echo Publications Ltd v Tanton [1999]
Contract where if he was unable or UNWILLING to do his work, he could send a substitute (unqualified rights of substitution). No personal service and therefore inconsistent with contract of employment and the irreducible minimum.
Staffordshire Sentinel Newspapers Ltd v Potter [2004]
Gym instructions: substitution from a list only if unable. This is not fatal to employment relationship.
Carmichael v National Power [2000]
Leading SC case for mutuality of obligation. Power station guides.
Nethermere (St Neats) Ltd v Gardiner [1984]
Sewing pockets on to trousers from home - got deliveries of the materials needed.
Snook v London and West Riding Investments Ltd [1967]
For a contract to be a shame, both parties must be complicit in deceit (doesn’t happen in employment) = gross injustice!
Autoclenz Ltd v Belcher [2011]
Car valeters employed on an agreement that they were independent contractors. HR came and inspected to make sure they were self-employed (content that they were). For added security, A came back with revised contract. Not obliged to do anything personally, individual contractor and new substitution clause. Nobody knew about or could use this clause! Here, documentation didn’t reflect reality as they had to do the work. Inequality of bargaining power and unrealistic.
Quashie v Stringfellows Restaurants Ltd [2012]
Good example of ‘irreducible minimum’ in practice. A lap dancer was told she couldn’t work due to drugs. Claimed unfair dismissal. She was subject to set-hours and had to attend based on an advanced rota. Subject to discipline and had to book holidays in advance, also required to look elegant. Had to buy from recommended suppliers, had to pay for DJ and ‘house mother’. She was bearing the full financial risk and therefore was not an employee - paying for the opportunity to dance.
Pulse Healthcare v Carewatch Care
Pragmatic approach following Autoclenz principles. Patients needed round the clock care - no independent living. No obligation of mutuality - health-care company must provide the care.
Conroy v Scottish FA Ltd
C employed as doctor by the NHS, but was a ref in his own time. Did 1 game a week and made £218,000 a season. Could say he wasn’t available, yet once accepted, pretty much bound. No control when refereeing. Only independent judicial committee for discipline. Had to supply all equipment such as whistle and cards. Not an employee.
s230(3) ERA 1996
‘an individual who has entered into or works under:…(a) contract of employment, any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or reform personally any work or services for another party’
s212(1) ERA 1996
‘any week during the whole or part of which an employee’s relations with the employer are governed by a contract of employment will count in computing the employee’s period of continuous employment’
‘For a casual employee to establish continuity they must therefore demonstrate that they have either a ‘global’ or ‘umbrella’ contract which covers both periods at work and the absences or they must come within the temporary cessation of work exception in s212(3)(b)’
Clark v Oxfordshire Health Authority [1998]
Strict view - has to be formal retainer agreement. Unsuccessful (global/umbrella contracts)
Hellyer Bros Ltd v McLeod [1987]
Fisherman case; also unsuccessful (global/umbrella contracts)
Ford v Warwickshire County Council [1983]
F was a teacher employed between Sept-July each year for 8 years. HL said she had a claim due to temporary cessation of work
Cornwall CC v Prater [2006]
Teacher used by CC for 10 years to teach difficult children. No obligation to take a child, yet she had never refused one. Had to see each child through once accepted. Taught one child for 5 years. Could claim temporary cessation of work.
McMeechan v SoS for Employment [1997]
Placed to carry out category out catering services; general and specific contract. Decided no mutuality of obligation. However, was accepted to an employee which was extremely unusual
Montgomery v Johnson Underwood [2001]
Case went the opposite way to McMeechan. 2y as a secretary as an agency worker. Not an employee - shows flexible nature of the relationship.
Franks v Reuters Ltd [2003]
Asked to look at implying contract of employment. Hours set and told what to do by Reuters; but paid by agency. Employee for 5y so could imply a contract of employment.
Brook St Bureau v Dacas [2004]
Agency worker who signed an agreement that she wasn’t an employee. Employed as a cleaner and they provided uniform; they had control. Apparently was rude and argumentative and B pulled her out after 4 days with no opportunity for defence and no rights. Held: no contract of employment
Cable and Wireless plc v Muscat [2006]
Complicated pay arrangement. M employed by Internet company. They asked a number of employees to finish as employees, and then they would be re-employed as self-employed contract labourers. Increased salary and would be paying own tax/NI. After a takeover, asked M to go through certain agency. Unfair dismissal claim: was directly/implied employment contract. Was doing the same work.
James v Greenwich Borough Council [2008]
J originally directly employed by Council. She chose to leave to an agency, then did exactly the same job but got more money. After 2 months sick leave, she went back to the council who told her she wasn’t needed. Held: cannot imply a contract in these facts. UD was denied.
Tilson v Alstom Transport [2010]
T was to do with a railway technician. Agency worker who could hire/fire permanent staff, authorise holidays etc. Had been offered employment contract, yet turned it down due to pay. Implied in very rare circumstances.
