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60 Cards in this Set
- Front
- Back
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Employment Status |
- Context - Freedland - Employee or worker? |
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Context |
There has been a shift in the employment structure from rigid to atypical contracts. There terminology of the core and periphery are applied to indicate who has and who has not got rights. Generally government policy favours job flexibility over job security. |
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Freedland |
This therefore creates the problem of boundary manipulation where business risks are diverted away from the employer and onto the employeee |
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Employee or Worker? |
The difference is important to establish as some rights will apply to both and some rights only apply to employees. also important to consider the classic vs. the atypical employment structure regarding rights. |
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Legislative Responses |
- ERA Employee Rights - ERA Worker Rights |
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ERA Employee Rights |
Will have for example UDrights = S94 If 2YCE = S108 |
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ERA Worker Rights |
Definition= S230 Will have NMW rights = S54 Deduction from wages rights |
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The Employee |
- Contract - Ready Mix Concrete - Stevenson v MacDonald - Market Investigations - Carmichael |
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Contract |
No contract will indicate that there are no employment relations. To be an employee there must be a contract OF service present (S230) |
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Ready Mix Concrete (MacKenna) |
The case established what a contract of service was and therefore defined the employee. 1) Consideration of wage he provides own work for master (MOO) 2) Agrees he will be subject to other's control making them a master 3) Other provisions are consistent with it being a contract of service |
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Stevenson v MacDonald (Integration test) |
Courts may also apply other common law tests to identify an employee. For example, is the individual integral to the business? |
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Market investigations (Economic Reality) |
Is the individual working on their own account |
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Carmichael (MOO) |
Is the individual providing their own work which they must complete? |
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Factors: |
1) Undertaking work personally for remuneration 2) MOO 3) Control |
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Undertaking Work Personally |
- Byrne v Baird - Tanton - Macfarlane |
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Byrne v Baird |
Carpentersdescribed as self-employer sub-contractors. Given no sick pay or holiday payand could substitute work with consent. Claimed they were workers to benefitfrom the WTR. Held that the realistic perception of the relationship held thatthey did work personally and were integral business undertakings. The fact thatthey worked personally was not fatal of their being a substitution clause. |
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Tanton |
Where a driver was unable to work or unwilling to work personally, he was able to substitute his work to others. This held that he was not an employee. |
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Macfarlane |
The right to substitute when ill is not inconsistent with being an employee. |
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Mutuality of Obligation |
- Freedland - O'Kelly v Trusthouse - Nethermere - Carmichael |
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Freedland |
There will be deemed a contract of employment where mutuality of obligation exists |
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O'Kelly v Trusthouse |
Waiters worked hourly rates for a hotel. In reality they rarely took time off and appeared to work full time despite being part time. They claimed they had a MOO and were therefore employees. It was held this did not establish a MOO as they were merely bound by economic forces, there was nothing obliging them to work |
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Nethermere |
MOO is the obligation to provide work and for the employee to complete that work. Therefore being an employee is not fatal where pregnant factory workers completed their obligatory work from home. |
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Carmichael |
Part time tour guides worked on the basis of an appointment letter, mainly oral deal, casual work as required with no set hours or pay. Conduct also indicated no MOO as did not come to work on some days. Considered this was too flexible to be considered an employment contract so there was no MOO. Defines‘atypical worker’ as casualworkers on zero-hour contracts. Typicalworker = Permanentcontract, singleemployer, onemployer’s premises · Otherfactors to consider: Economicrisk, salary, providing ownequipment, tax paid, label usedby parties. |
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Control |
- Ready Mix - Autoclenz - Nethermere - White v Troutbeck |
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Ready Mix |
Control will be existent where the service contract is subject to the employer being a 'master' |
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Autoclenz |
The employee must submit to control |
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White v Troutbeck |
Everyday control is not conclusive of being an employee. Not simply about who is in charge of the employee, but who is contractually in control. Therefore where an employer is absent, this still means there is control. Key question is whether the employer had 'contractual' control. |
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Other tests... |
- Issues - Wedderburn - Hall v Lorimer |
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Issues |
The lack of statutory definitions means judges may have to adopt the 'multiple' or 'elephant' test. |
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Wedderburn |
Stated that the employee is a concept very hard to define but one that is easily recognisable when you see it |
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Hall v Lorimer |
To carefully identify the employee, the courts must 'stand back' and look at the whole picture to imply an employment relation. This links well with the 'sham' agreements in Autoclenz. Held that: "The extent to which the individual is dependant or independent of a particular paymaster for the financial exploitation of his talents." |
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Determining the relationships: Shams |
- Problems - Carmichael - Autoclenz - Clarke - Bogg |
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Problems |
The employer may wish to argue the employee is in fact self-employed by removing terms in the contract to make it appear so. |
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Carmichael |
To get around misuse, the courts will look at what the parties actually 'did and said' to infer the true employment nature as opposed to what was expressly stated in the contract |
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Autoclenz |
The courts may override a sham agreement. Wherethe contract refers to no MOO but on the facts of the case there was in actualMOO being undertaken, the contract is a sham. Contracts stated they wereself-employed, had no MOO and no right to receive work. However in reality thevalets were engaged under contracts of employment not affected by the clausesstating they were self-employed. |
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Clarke |
Given the inequality of bargaining power, the clauses in thecontract were not representative of what was agreed. Employment contracts areunlike commercial ones given the inequality. Must consider the relative powerof the parties taking a purposive approach. |
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Bogg |
Clarke's decision shows welcomed vigilance in showing how a decision was reached with contractual doctrines. Employment contracts are special species which loosen contract rules such as the signature rule (L'estrange) and liberalises extrinsic evidence being given. |
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The Worker |
- Definition - Byrne v Baird (MOO) - HMG v Westwood (Integration) - Winkelhoff v Clyde (Control) - Hale |
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Definiton |
S230(3) ERA 1996: Worker is an individual who works under a contract of employment or another contract: Performing work personally. |
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Byrne v Baird |
MOO Required. Limited power in the contracts to appoint substitutes was not fatal of being workers. The claimants on the facts had worked under the close direction of Byrne paid on a time basis not with reference to work done so were not business undertakings. The claimants worked continuously for Byrne over the period so were deemed workers. So if individual is self-employed but factors point towards employment, possible to qualify as worker. |
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HMG v Westwood |
Doctor who provided service for clinic as a self-employed contractor was a worker. Claimed unlawful deductions of wages. He was held to be a worker as he had a contract to perform work personally for HMG who were not his clients. Court must recognise difference between individual offering services to world at large or someone integrated as part of business. He was integral to the business "one of our surgeons". |
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Winkelhoff v Clyde |
Law firm partner claimed was a worker to benefit under the protection owed to whistleblowers. Firm argued she was not as the firm was her client and that she was not subject to their control. Individualcan still be a worker without being subordinate. She fell within express wordsof S230(3)(b). She was not free to market services to anyone other than C sowas not a client. |
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Hale |
Subordinationis not a freestanding characteristic by which a worker must be. Focus is on thestatutory definition and it must not be approached with pre-conceived notionsof what a worker actually is. |
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Agency Workers |
- Define - McMeecham - Waite - Montgomery - James v Greenwich - Smith v Carillion - Moran v Idel |
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Define |
Triangular type relationship. Individual will have an employment contract with the agency but will be under the control of the hirer. |
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McMeecham |
Agencyworker under self-employed terms. Agency goes insolvent and C attempts to claimfor unpaid wages. Specific engagement of work indicated he was an employee oncertain assignments so was entitled to pay. Terms denying MOO were irrelevant. Every time the individual accepts a specific assignment with single end-user he will be agency's employee for that assignment. |
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Waite |
General engagement = sporadic and random tasks with no end-user. Specific engagement = begins and ends with the performance of a particular task |
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Montgomery v JU |
M contract with agency. Placed with local company and worked for two years. Agency terminated her agreement. Not employed by agency. There was a lack of control and mutuality of obligation by the agency to warrant employment relation. MOO and control are irreducible minimums to establish employment. |
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James v Greenwich |
J worked for council through an agency. Claimed unfair dismissal. Mummery: There was neither an express or implied contract with the council. Only express contract was with the agency. To imply a contract it must be necessary to do so. The council providing work and payments to the agency were all explained by the contract with the agent |
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Smith v Carillion |
C blacklisted after working for hirer for 6 years and claimed victimisation and employment rights due to lengthy service. Still only an agent as no express contract with the hirer, only with agency. It is very normal for agents to be integrated into the business for that long as this ensured he gave a good service. Also, no evidence that the agency worker had contracted to stay for the whole project. |
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Moran v Ideal |
Defined the difference between a temporary and permanent working relationship. Permanent was construed as being indefinite in nature, so here the work done was permanent. |
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Agency Regulations |
- AWR 2010 - Equality - Pay - Working Time - Qualifying Period - Swedish Derogation |
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AWR 2010 |
Defines the agency worker as one supplied by temporaryagency for and under supervision of hirer. Aim to combat discrimination of agency workers stating they should be no less favourably treated in pay and working time than full time counterparts. |
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Equality |
There is no general right to equality with employee rights |
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Pay |
Equal pay to employees |
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Working Time |
Equal working time to employees |
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Qualifying period |
12 weeks to qualify for these rights (Despite calls for a year by city employers) |
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Swedish Derogation |
May elect for this where the employer will pay the agency worker in between assignments as long as they waive their rights to equal pay |
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Commentary |
- Hepple - Freedland |
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Hepple |
Favours restructuring the current employment relations changing the current contract model to a new codified structure. Any attempt to rationalise legislation coverage or simplify the law to be understood by employees are bound to collpase if they are built on the common law. Developments in European employment law has been based on realisation that employment relation must be free from contracts and property. English law sought to mitigate deficiencies by enacting individual legal rights, but has only entangled employers. Future reforms must be enacted in a framework protecting collective bargaining and freed from contract of service. |
