Contract of Employment
LG102 Principles of Commercial Law in Ireland 2007-2008
Dr Olivia Smith
Employment Law: Identifying the Contract of Employment
Reading: M. Forde, Employment Law 2nd ed. (Dublin: Roundhall Sweet and Maxwell, 2001) Chapter 2.
History ▪ the move from status to contract. Query whether a move back to status?
The protection afforded to individual employees under Irish employment law depends on a legal paradigm whereby the rights provided for are implied into the terms of the contract between the employer and the employee. Thus the starting point before any examination of these protections must be a consideration of the employment contract itself. While there is invariably an exchange of labour for capital in the arrangements made by the parties, we must identify the distinction between a contract of services and a contract for services in order to ascertain whether the relationship between the alleged employee and employer is in fact a contract of service and thus within the protection of the legislation.
The statutory definition of employee is based on the common law contract of service. An employee will be defined in such terms under the general run of employment legislation.
The criteria for distinguishing between a contract of service and a contract for services have been developed by the courts. Whilst the early tests propounded were based on the command and subordination element of the employment relationship, it soon was realised that the “control test” was an outmoded manner of determining the legal status of persons who work for others. A more flexible, mixed test has been preferred by the courts of late, of which control will only be one element. Thus, the approach today is hybrid in nature where a number of general principles (considered below) will be applied to the cases on an individual basis.
Importance of Contract of Service
1. Statutory protection. Statutory rights are generally given only to employees. For example,
Dr Olivia Smith
Employment Law: Identifying the Contract of Employment
Reading: M. Forde, Employment Law 2nd ed. (Dublin: Roundhall Sweet and Maxwell, 2001) Chapter 2.
History ▪ the move from status to contract. Query whether a move back to status?
The protection afforded to individual employees under Irish employment law depends on a legal paradigm whereby the rights provided for are implied into the terms of the contract between the employer and the employee. Thus the starting point before any examination of these protections must be a consideration of the employment contract itself. While there is invariably an exchange of labour for capital in the arrangements made by the parties, we must identify the distinction between a contract of services and a contract for services in order to ascertain whether the relationship between the alleged employee and employer is in fact a contract of service and thus within the protection of the legislation.
The statutory definition of employee is based on the common law contract of service. An employee will be defined in such terms under the general run of employment legislation.
The criteria for distinguishing between a contract of service and a contract for services have been developed by the courts. Whilst the early tests propounded were based on the command and subordination element of the employment relationship, it soon was realised that the “control test” was an outmoded manner of determining the legal status of persons who work for others. A more flexible, mixed test has been preferred by the courts of late, of which control will only be one element. Thus, the approach today is hybrid in nature where a number of general principles (considered below) will be applied to the cases on an individual basis.
Importance of Contract of Service
1. Statutory protection. Statutory rights are generally given only to employees. For example,