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    5 - An Introduction To Employment Law

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    matt
    This document provides an introduction to employment law, distinguishing between employees and workers. It outlines the tests used to determine whether a contract of employment exists, including control, organization of work, and multiple factors. Employees have a contract of employment and more legal protections, while workers have some basic protections but can be dismissed more easily. The distinction between employees and workers is important for determining issues like vicarious liability, statutory protections, and taxes.

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    5 - An Introduction To Employment Law

    Uploaded by

    matt
    38 views3 pages
    This document provides an introduction to employment law, distinguishing between employees and workers. It outlines the tests used to determine whether a contract of employment exists, including control, organization of work, and multiple factors. Employees have a contract of employment and more legal protections, while workers have some basic protections but can be dismissed more easily. The distinction between employees and workers is important for determining issues like vicarious liability, statutory protections, and taxes.

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    5 - An Introduction to employment law

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    This document provides an introduction to employment law, distinguishing between employees and workers. It outlines the tests used to determine whether a contract of employment exists, including control, organization of work, and multiple factors. Employees have a contract of employment and more legal protections, while workers have some basic protections but can be dismissed more easily. The distinction between employees and workers is important for determining issues like vicarious liability, statutory protections, and taxes.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    38 views3 pages

    5 - An Introduction To Employment Law

    Uploaded by

    matt
    This document provides an introduction to employment law, distinguishing between employees and workers. It outlines the tests used to determine whether a contract of employment exists, including control, organization of work, and multiple factors. Employees have a contract of employment and more legal protections, while workers have some basic protections but can be dismissed more easily. The distinction between employees and workers is important for determining issues like vicarious liability, statutory protections, and taxes.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 3
    At a glance
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    The key takeaways are the differences between employees, workers, and independent contractors and the tests used to determine the type of contract.

    The main tests to determine the type of contract are the control test, organisation test, multiple factor/economic reality test and mutuality test.

    Characteristics of a worker contract include mutuality of obligations and the individual providing personal services where the recipient is not a client of the individual.

    An Introduction to employment law

    The Legal Aspects of the Organisation of the Workforce (Employment Law)


     Employees versus workers
     When a Contract of Employment Exists (more recent developments in the test)
     Workers/Independent Contractors/other categories
     Casual Workers
     Agency Workers
     Vicarious Liability

    Employee
     “An individual who has entered into or works under (or, where the employment has ceased, worked
    under) a contract of employment” (Sect. 230(1) of the ERA)

    What is a contract of employment?


     “A contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or
    in writing” (sect. 230(2) of ERA 1996)

    Main typologies of Contracts


     Contract of service (between an employer and employee)

     Contract for services (between an employer and worker/an independent contractor)

    Why is the distinction important?


     Vicarious liability for an employee
     Implied terms in contract of employment
     Statutory protection (unfair dismissal)
     Tax-national insurance

    How to identify a contract of service


    Control Test:
     Employer directs ends and means
     Employer directs what work is done and how and where and when it is done

    Performing Rights Society v Mitchell and Booker [1924] 1 K.B. 762


    Whittaker v Minister of Pensions [1967] 1 Q.B. 156

    “Organisation” test/integration test (the Lord Denning Test)


     “Under a contract of service, a man is employed as part of the business and his work is done as an
    integral part of the business”.
     Therefore, the contract of service exists also if the control is missing

    Stevenson, Jordan & Harrison Limited v MacDonald & Evans Ltd. [1952] 1 T. L.R. 101

    Multiple factor test/economic reality test


     What is relevant is the substance of the relationship rather than the form
     Multiplicity of different factors and criteria according to the circumstances

    Contract of Service: Multiple test


     Market Investigations v Minister of Social Security [1968] 3 All ER 732
     Researchers were in charge of carrying out market research for MI
     A controversy arose between the company and the Minister as to the payment of social security
     It was held that a contract existed because
     The control
     Provision of tools & equipment
     Hiring of helpers
     The financial risk (on the company itself)
     Opportunity to profit from good work

    Contract of service: Multiple test (mutuality)


     Is the employer required to provide work when it is available and is the individual required to do it
    when it is provided?
     Important to resolve cases of regular casuals?
     O’Kelly v Trusthouse Forte plc [1983] I.C.R. 728
     Carmichael v National Power plc [2000] I.R.L.R. 43
     Montgomery v Johnson Underwood ltd [2001] IRLR 269
     Nethermere (St Neots (Ltd) v Taverna [1984] I.C.R. 612

    Multiple Test (contd)


     Other terms of the contract may be consistent with a contract of service; among others:
     provision of equipment
     hiring of helpers
     financial risk
     opportunity to profit
     label or name of contract
     income tax and national insurance

    Contract for Services: the Worker


    Who is a worker?
     “an individual who has entered into, or works under (or, where the employment has ceased, worked
    under) –

     a contract of employment;
     any other contract, whether express or implied and (if it express) whether oral or in writing, whereby
    the individual undertakes to do or perform personally any work or service for another party to the
    contract whose status is not by virtue of the contract that of a client or customer of any profession
    or business undertaking carried on by the individual.”

     Sect. 230(3) of ERA 1996

     Characteristics
     Mutuality of obligations
     Personal service on the side of the individual providing the services
     The recipient of the services must not be the client or customer of the individual providing the services

    Worker vs Employee
     Benefit for the businesses
     A worker more flexible
     Possibility to dismiss him at any time
     No application of the legislation in the matter of redundancy
     The worker nonetheless entitled to basic protection (discrimination; working time regulations)
     Worker more frustrated (no guarantee for his job; instability; personal life)
     See the example of zero-hour contracts

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