Forms of working relationships

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Hawley v Luminar Leisure Ltd states that:
One can have two different working status for the same role
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What is the definition of 'employee'?
an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment” (ERA 1996 s230)
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What is a fundamental aspect of an employment relationship?
Control over the employee by the employer
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What is the key case for the test of control?
Ready Mixer Concrete Ltd v Minister of Pensions and National Insurance
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Does the control over an employee have to be enforced everyday?
No, it is more of a contractual right to control the employee
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What case is authority for the integration test for employment status?
Stevenson and Others v MacDonald and Evans
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What case gives authority for the entrepreneurial test for employment status?
Airfix Footwear Ltd v Cope
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What case has an actor who teaches part time and was not considered an employee as he is selling a skill of acting to the students, meaning he was self-employed?
Argent v Minister of Social Security
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What is the current test/approach used to decide if one is an employee?
Multifactoral test approach
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What is the irreducible minimum?
The minimum factors required to establish an employment relationship: mutuality of obligations, personal service and control
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What case established the irreducible minimum?
RMC v Minister of Pensions and National Insurance
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What can employers place into a contract to avoid establishing the personal requirement to work of an employee?
Substitution clauses
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What case gives authority for substitution clauses prohibiting the creation of an employment relationship.
Echo and Express Publications v Tanton
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What case provides authority for a qualified substitution clause that would still give rise to an employment relationship?
Staffordshire Sentinel v Potter
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What is mutuality of obligation?
Obligation for the employer to provide work and the employee to accept it.
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Is mutuality of obligation a fundamental requirement to establish an employment relationship?
Yes
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What was the outcome in Carmichael v National Power
Mrs C was not held to be an employee as there was no mutuality of obligation - the employer did not have to provide her with work and she did not have to accept it.
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What was the outcome of Nethermere (St Neots) Ltd v Gardiner?
Mrs G was held to be an employee as the practice of accepting work and it being provided has developed over the years and crystallised into mutuality of obligation.
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Does it matter what the parties have labeled the working relationship?
It is not decisive but not disregarded altogether. Where the situation is marginal the description could tip the balance and may be included.
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What is a sham contract?
A sham contract is where an individual is given a contract that will not actually give them employment status and does not reflect the reality of the situation.
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What is the leading case for sham contracts?
Autoclenz v Belcher
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What was the outcome in Quashie v Stringfellows Restaurants?
C was held not to be an employee by the CA as she did not meet the final ground of the irreducible minimum. C was bearing the entire financial risk. it was a commercial contract allowing C the opportunity to dance and earn money.
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Pulse Heathcare v Carewatch Care Ltd had what outcome?
Court applied the principles of Autoclenz, the reality of the situation was not reflected in their zero hours contracts, they had to be employees if not the employer could not rely on an ad-hoc arrangement to provide a high level of expertise.
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What was the outcome of Conroy v Scottish FA?
Court held C was a worker not an employee as there was no mutuality of obligation but there was still a level of control from the employer
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What is the definition of 'worker'?
S230(3) of ERA 1996 as ‘an individual who has entered into or works under (or, where the employment has ceased,) worked under a contract of employment or any other contract where the work is performed personally any work or services for another party
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What authority does Bryne Brothers Ltd v Baird provide?
Sets out a three staged test for deciding if one is a worker: perform work personally, status of employer under the contract that of a customer of a business undertaking carried on by an individual and if there is mutuality of obligation
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What is the 'Gig Economy'?
labour market characterized by the prevalence of short-term contracts or freelance work as opposed to permanent jobs.
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What is the key case for 'gig workers'?
Plimlico Plumbers v Smith
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What is a casual worker?
A worker is an employee during a period in which they are working and in periods of non-work they are not an employee
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What is the problem with casual workers?
Issue is whether there is any mutuality of obligation in gaps between employment as well as when the employee is working.
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What is the statutory response to casual workers who have gaps in their employment?
S212(1) ERA - any week during the whole or part of which any employee's relations with the employer are governed by a contract of employment will count towards continuous employment
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What is the common law response to casual workers who have gaps in their employment?
Umbrella or Global contracts
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What does s212(3)(b) ERA provide?
It is the period where the employee is not at work, there is no contract and they have been dismissed. This gap will be classed as a temporary cessation of work allowing it to contribute to continuous employment period
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What was the outcome of Ford v Warwickshire County Council?
A teacher who did not work for 6 weeks in the summer due to the holidays under which she was not governed by an employment contract was considered as a temporary cessation of work and contributed towards her continuous employment period.
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What was the outcome of Flack v Kodak?
Court held that the gaps in employment were not to be included as a temporary cessation of work as there was no pattern to the period of work and the gaps were too long in between
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What is the main issue with agency workers?
There is no contractual arrangement with the end client, only one with the agency but this means there will never be an employment relationship
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WHat was the outcome in Brook St Bureau v Dacas?
The court held that Dacas was not an employee because she did not officially have an employer. The Council had a contract with the agency, not Dacas, and the agency simply paid Dacas but did not have any employment contract with them
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What was the outcome in James v Greenwich Borough Council?
It set out a fixed position for the courts in response to agency workers. It was held that C could not enforce employment contract or imply one without meeting the irreducible minimum. Need to look at all the surrounding factors of the situation.
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What act regulates Agency Workers?
Agency Worker Regulations 2010
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What does the Agency Worker Regulations set out?
Allows agency worker's some rights only if they are in the same position for 12 weeks or more.
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What does the part-time worker regulations provide?
Allows part time workers to challenge less favourable treatment which is on the grounds of their part time status if it cannot be objectively justified by the employer
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Is there a qualifying period for part time workers before they can claim for less favourable treatment?
No, they have 'day one' rights and can claim on their first day of work
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What is required to bring a successful claim as a part time worker for less favourable treatment?
A comparator to use and compare them to the part time work to show that it is less favourable
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does the comparator for part time workers need to be in the same office with the same job?
Yes, they also need to be under the same type of contract
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Matthews v Kent and Medaway Towns Fire Authority provides authority for what?
HL held that when looking at comparators you should look at the similarities of the primary purpose of the roles. You need to have a purposive approach, do not look at the differences
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What was the outcome of Sharma v Manchester?
Court held that the part time work in itself does not have to be the sole reason for the less favourable treatment
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What is meant by the employer justifying the unfavourable treatment?
The employer must prove that the less favourable treatment was a proportionate means of achieving a legitimate aim.
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Other cards in this set

Card 2

Front

What is the definition of 'employee'?

Back

an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment” (ERA 1996 s230)

Card 3

Front

What is a fundamental aspect of an employment relationship?

Back

Preview of the front of card 3

Card 4

Front

What is the key case for the test of control?

Back

Preview of the front of card 4

Card 5

Front

Does the control over an employee have to be enforced everyday?

Back

Preview of the front of card 5
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