Summary employment-law-i-revision-notes

Employment Law Notes Employment Status - In employment law a person’s employment status helps determine a variety of things:  Their rights  Their employer’s responsibilities  Tax  National Insurance  Health & Safety  Vicarious Liability Identifying an 'employee' s230 Employment Rights Act 1996 - ‘an individual who works or worked under a contract of service or apprenticeship’ The common law has developed a number of tests for distinguishing those who have a contract of employment and those who are self employed. 1. The Control Test: [Walker v Crystal Palace] - A professional footballer was held to have a contract of service to the club. He was paid £3 per week for a year contract, in which he was expected to provide his playing services exclusively to the club. The club argued that he did not have a contract of service because it asserted, it was essential that in such a relationship the master should have the power to direct how work should be done. In [Yewens v Noakes] - 'A person subject to the command of his master as to the manner in which he shall do his work' This test evolved since this particular case and it was argued that this definition could not be applied to professional footballers who were required to display their skills. The control of the club is limited to deciding whether the player is picked for the team or not. Therefore Walker was classed as an 'employee' [White & Todd v Troutbeck SA] - Mr White and Ms Todd worked as caretakers/managers of a house and small farm estate part-owned, but rarely visited, by Troutbeck. Their contract had no fixed hours, 1 Types of Part Time Home Workers Apprenticeship Zero Hour Agency Self Employed Downloaded by Raquel Balmogan () lOMoARcPSD| Downloaded by: NurseKims | Distribution of this document is illegal S - The Marketplace for Revision Notes & Study Guides although it contained several references to ‘employment’. When the company terminated the arrangement, Mr White and Ms Todd claimed unfair dismissal, relying on an employment contract. The question was: were they employees (and so entitled to claim) or workers? The company argued that it did not have day-to-day control over Mr White and Ms Todd and so that went against there being an employer-employee relationship. The original tribunal agreed, finding in Troutbeck’s favour. But that decision was overturned on appeal. The Employment Appeal Tribunal decided that a lack of day-to-day control is not conclusive. The test of whether or not someone is an employee is about the entire relationship, starting with the written agreement. The key question is whether the ‘employer’ had a contractual right of control? It is not simply about who is in charge of the daily work. 2. The Organisation/Integration Test: Lord Denning in [Stevenson, Jordan & Harrison v McDonald and Evans 1952]: “One feature that seems to run through the instances is that, 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: whereas under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.” 3. The Economic Reality or Multiple Test: For vicarious liability to arise there must be a relationship of employer and employee for the employer to be liable for the tortfeasors act. [Market Investigations Ltd v Minister of Social Security] - Mrs Anne Irving from time to time did market questionnaires. There was a dispute between the business for whom she did the surveys, Market Investigations, and the Minister for Social Security over whether National Insurance contributions should have been made on her behalf. This depended on whether she was an employee. Much of the facts pointed to the part time interviewers being independent contractors: they are not obligated to accept work give, they are free to work for others, no sick pay or holiday and mutual recognition of contract of services. This test was considered in [Market Investigations Ltd v Minister of Social Security] where the court considered not only the amount of control exercised over a part time workers but also the question whether she was in business on her own account. The test was first considered in [Ready Mixed Concrete Ltd v Minister of Pensions 1968] in which MacKenna J stated that a contract of service existed if three conditions were fulfilled:  the servant agreed they would provide their own work and skill in return for remuneration.  the individual agreed, expressly or impliedly, to be subject to control  the other provisions of the contract were consistent with a contract of service The courts have found it necessary to take into account numerous factors when considering whether the tortfeasor is an employee, such factors are not conclusive in themselves but help in the process:  does he provide his own equipment?  does he hire his own helpers?  what degree of financial risk does he take?