Employment Status

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  • Created by: Edward
  • Created on: 14-03-17 22:57
ERA 1996, s 230(2)
‘contract of emp’t’ = a contract of service or apprenticeship, whether express or implied, and if express, whether oral or in writing
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ERA 1996, s 230
Employee = one who works under a contract of emp’t
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ERA 1996, s 230(1)
‘employee’ = an ind who has entered into or works under (or, where the emp’t has ceased, worked under) a contract of emp’t
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TULRCA 1996, s 296
A worker = one who works under a contract to provide work personally, other than a client
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ERA 1996, s 230(3)
A worker = an ind who has entered into or works under (a) a contract of emp’t, or (b) any other contract, whether express or implied and (if express) whether oral or in writing, whereby ind undertakes to do or perform any work personally and work or
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ERA 1996, ** 210 and 212
No of hours/ work does not determine status re part time workers
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Part-Time Workers (Prevention of Less Favourable Treatment) Regs 2000, s 5(1)
Parttime workers have right not to be treated less favourably by employer than comparable full-time worker
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Part-Time Workers (Prevention of Less Favourable Treatment) Regs 2000, s 6
Part-time workers have right to receive written statement of reasons for less fav treatment than comparable full-time worker
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Part-Time Workers (Prevention of Less Favourable Treatment) Regs 2000, s 5(2)(b)
Employer will need to obj’y justify reasons for differential treatment and show reason can meet genuine business need
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Dacas v Brook Street Bureau (2004)
CA: should not look at written conatrct only and should consider implied terms – there may be evidence of regular mutual contract of triangular arrangements creating exp contract for servies between D and agency, and exp contract between agency and C
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Bunce v Postworth (2005)
Keane LJ: look at power of control in reality, not solely terms of contract
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McMeehan v Sec of State for Emp’t (1997)
Temp worker in position much same as Bunce, employed by agency under services of short-term contracts-CA distinguished McMeehan as contract here referred to worker accepting instructions either from agency or client
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James v Greenwich LBC (2008)
Held: crcums did not exist which could justify the inference of an implied contract – there was no necessity to imply a contract – the mere passage of time of 12 months/1 year was not sufficient to require any such implication
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O’Kelly v Trusthouse Forte (1983)
Trubnal should consider all aspects of relationship, no single feature being itself decisive and each of which may vary in weight and direction, and having given such balance to factors as seen approp, to determine whether the person was carrying out
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Nethermere v Taverna and Gardiner (1984)
Fact that it was up to homeworkers to decide how much work they did subj to making it worthwhile for van drivers to call, could be read as importing oblig’n on outworkers to take reasonale amount of work once agreed to work as outworkers
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ERA 1996, s 27A(1)
Zero-hours contract= a contract of emp’t or worker’s contract under which the workers’ undertaking to perform such work is cond’l on employer making work available, but where there is no certainty that any work will be offered
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Fixed-Term Employees (Prevention of Less Fav Treatment) Regs 2002, reg 1(2)
Fixed-term contract = not only which terminates on expiry of a specific term, but also one which terminates on completion of specific task or on happening of specific event
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Fixed-Term Employees (Prevention of Less Fav Treatment) Regs 2002, Reg 8(2)(a)
Employees on fixed term contract for 4 years or more may automatically become permanent employee
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Fixed-Term Employees (Prevention of Less Fav Treatment) Regs 2002, reg 3
Fixed-term employees should get same opay and conditions as permanent staff and same or equivalent beneifts (Reg 3(3): unless diff’l treatment is obj’y justified with good business reason for doing so)
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ERA 1996, s 27A(3)
Any clause prohibiting worker from working for someone else, or requiring that she gets employer’s permission to do so in zero-hours contract will be unenforceable
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Uber (2015) and Pimlico Plumbers (2017)
Gig-economy appears to move in direction that zero-hours workers are workers and not ICs
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Smith v Pimlico Plumbers (2017)
Here, plumber seen as worker as he worked solely for Pimlico for 6 yrs, was unable to work for anyone else, and drove branded van, despite being VAT-reg’d, paid rates of an IC, and paid tax like a self-employed worker – meant entitled to basic worker
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Aslam v Uber (2015)
Drivers carrying on business for Uber and not in sole capacity – also, suff’t control re ‘choosing’ pick-ups as it affects their rating and future offers – meant entitled to holiday and sick pay
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Yewens v Noakes (1880)
Bramwell LJ: a servant is a personal subj to his master as to the manner in which he shall do his work (control test)
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Cassidy v MoH (1951)
Denning LJ: organisation/integration test asked whtehr worker’s work was an integral part of the business – if so, employee; if merely accessory, then IC
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Carmichael and Leese v National Power (1999)
Made clear that control and mutuality are essential features of a contract of emp’t- worked on ‘casual as req’d basis’ – received training, uniform, and when nec, compay vehicle – not employees – no oblign on employees to accept work offered – had re
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Express and Echo Public’ns v Tanton (1999)
Not employee – right to provide a substitute is inherently inconsistent with emp’t status
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Stevedoring and Haulage Services v Fuller (2001)
Appt’s= employees – not simply working under series of ind engagements but under ‘overarching’ contract of emp’t – although docs containing terms upon which casual wok was offered and accepted provided expressly neg mutuality of oblig’n
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Autoclenz v Belcher (2011)
ET: written contractual terms did not reflect true agreement between parties – in reality, the valeters could not send substitute and had to carry out work offered to them
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Ready Mixed Concrete (1986)
McKenna J: 1.Provide work; 2.agree subj control; 3. Other prov’ns consistent with it being a contract of service
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Market Investigations v Minister of Social Security (1969)
Cooke J: control; provides own equipment; hires heklpers; degree of financial risk; whether worker profits
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ERA 1996, s 212(1)
Any week during whole/part of which an employee’s relationship with his employer si governed by a contract of emp’t count in computing employee’s period of emp’t
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ERA 1996, s 212(3)(a)
Incapability of work due to sickness or injury does not break continuity
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ERA 1996, s 212(3)(b)
Absence from work on account of temporary cessation of work does not break continuity
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ERA 1996, s 212(3)(c)
Absence from work in circums such that, by arrangement or custom, he is regarded as continuing in emp’t of employer does not break continuity
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ERA 1996, s 212(3)(d)
Absence due to pregnancy or childbirth, counts in computing employee’s period of emp’t
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ERA 1996, s 216
A week does not count as breaking continuity if during the week, or any part thereof, the employee takes part in a strike
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Ford v Warwickshire CC (1983)
‘absent from work’ must mean not only that the employee is not doing any actual work his employer but that there is no contract of emp’t subsisting between him and employer that wuiold require him to do any work
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Flack v Kodak (1986)
Court must consider all relevant crcums, in particular, consider length of period for emp’t as whole – short time I one emp’t = not nec’y same for another – in deciding ‘short-term’ nec to onsider period with hindsight
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Lane v Shire Roofing (1995)
There are many factors to be considred in determining emp’t staus, and, with different prioirity being given to those factors in different cases, it all deends on facts of each case
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Massey v Crown Life Insurance (1978)
It true relationship=master and servant under contyract of services, parties cannot alter truth by putting diff label on it; illegal and unenforceable; however, if ambiguity in relationship and capable of being one or another, then labels can recover
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O’Kelly v Trusthouse Forte (1983)
Multiple factor test: indicating regular casuals working under contract emp’t (9); factors not inconsistent with contract of emp’t (3); inconsistent with contract of emp’t (5)
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Other cards in this set

Card 2

Front

Employee = one who works under a contract of emp’t

Back

ERA 1996, s 230

Card 3

Front

‘employee’ = an ind who has entered into or works under (or, where the emp’t has ceased, worked under) a contract of emp’t

Back

Preview of the back of card 3

Card 4

Front

A worker = one who works under a contract to provide work personally, other than a client

Back

Preview of the back of card 4

Card 5

Front

A worker = an ind who has entered into or works under (a) a contract of emp’t, or (b) any other contract, whether express or implied and (if express) whether oral or in writing, whereby ind undertakes to do or perform any work personally and work or

Back

Preview of the back of card 5
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