Employment law – Employees &
Contracts
Employees
Must be an employee to qualify for and benefit from specific rights and protections
Employee is someone who has or had a contract of service – s 230(1) and (2) and is not part of an excluded
class
Excluded classes:
Employees on particular types of fixed term contracts which are shorter than 2 years in length are not entitled
to redundancy payments on the expiry of the term without it being renewed if such employees have previously
agreed in writing to waive it – s 197(3)
Employees on short term contracts of less than 1 month – s 1 – 7 do not apply – s 198, meaning that short term
employees have no right to a statement of particulars
Mariners – although note that the extent to which the ERA does or does not apply to mariners depends on their
status e.g. crew, masters, merchant seamen – s 199(1) – (8)
Police – certain sections of the ERA do not apply to those employed in the police service or who have the
powers of constables – s 200(1) – (2)
Workers employed offshore – are not covered by ERA unless scope of the ERA is extended by an Order in
Council – s 201(2)
Tests to determine whether a contract of service exists
1) The Control Test
To what degree can the employer control what the individual does and how they do it e.g. number of hours worked,
which days they work, place of work?
Higher level of control = more likely they are an employee – Yewens v Noake
System requiring employee to clock in suggests control by the employer over when work is done
Reporting to same place of work would show control over where work is done
Factors to consider – Warner Holidays v Secretary of State for Social Services
Provision of tools and equipment – does employer provide them? – Ready Mixed Concrete
Tax – does the employer pay the person’s tax through PAYE? – Airfix Footwear v Cope
Hours of work – regular employment hours?
Exclusivity – can the employer prevent the person from taking other jobs? – Argent v Minister of Social Security
Labelling – is the person called an employee? Though this is not conclusive – Massey v Crown Life Insurance
2) The Integration Test
Will be an employee if they are an integral part of the company – is the individual ‘part and parcel’ of the employer’s
business? E.g. are they required for a quorate board vote? If so, they will be an employee. Factors to consider:
Is individual subject to the company’s disciplinary or grievance procedure?
Is the individual paid holiday or sick pay?
Does the individual wear the uniform?
Contracts
Employees
Must be an employee to qualify for and benefit from specific rights and protections
Employee is someone who has or had a contract of service – s 230(1) and (2) and is not part of an excluded
class
Excluded classes:
Employees on particular types of fixed term contracts which are shorter than 2 years in length are not entitled
to redundancy payments on the expiry of the term without it being renewed if such employees have previously
agreed in writing to waive it – s 197(3)
Employees on short term contracts of less than 1 month – s 1 – 7 do not apply – s 198, meaning that short term
employees have no right to a statement of particulars
Mariners – although note that the extent to which the ERA does or does not apply to mariners depends on their
status e.g. crew, masters, merchant seamen – s 199(1) – (8)
Police – certain sections of the ERA do not apply to those employed in the police service or who have the
powers of constables – s 200(1) – (2)
Workers employed offshore – are not covered by ERA unless scope of the ERA is extended by an Order in
Council – s 201(2)
Tests to determine whether a contract of service exists
1) The Control Test
To what degree can the employer control what the individual does and how they do it e.g. number of hours worked,
which days they work, place of work?
Higher level of control = more likely they are an employee – Yewens v Noake
System requiring employee to clock in suggests control by the employer over when work is done
Reporting to same place of work would show control over where work is done
Factors to consider – Warner Holidays v Secretary of State for Social Services
Provision of tools and equipment – does employer provide them? – Ready Mixed Concrete
Tax – does the employer pay the person’s tax through PAYE? – Airfix Footwear v Cope
Hours of work – regular employment hours?
Exclusivity – can the employer prevent the person from taking other jobs? – Argent v Minister of Social Security
Labelling – is the person called an employee? Though this is not conclusive – Massey v Crown Life Insurance
2) The Integration Test
Will be an employee if they are an integral part of the company – is the individual ‘part and parcel’ of the employer’s
business? E.g. are they required for a quorate board vote? If so, they will be an employee. Factors to consider:
Is individual subject to the company’s disciplinary or grievance procedure?
Is the individual paid holiday or sick pay?
Does the individual wear the uniform?
