Employment Law

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Question 1 – Importance of the distinction between employer/self-employed contractor. Social Security benefits;
Health and Safety provisions;
Benefit of employer’s duty of care;
Certain statutory rights:
Notice periods – s.86 ERA 1996;
Sick pay/holiday pay;
Redundancy pay
Unfair dismissal
Employment contracts contain implied terms;
Tax and NI reasons;

Question 2 – Four Tests
Common Law tests: –
Control
Integration (Organisational)
Mutual Obligation
Multiple/Economic reality

Question 3 – Advice of the Court of Apeal in Hall v Lorimer No decisive factor for determining status;
Hall v Lorimer [1994] IRLR 171

Factors-
Control
Ownership of tools
Mutuality of obligation
Label
Tax & N.I.
Flexibility
Place of work

Q4. Explain the difficulties faced by agency workers
Usually not employee of an agency:

No mutual obligations to provide / accept work
Agency usually no control over actual work
Consistent Group Ltd v Kalwak [2008] EWCA Civ 430 (CA)

But may have implied contract with client
Dacas v Brook Street Bureau [2004] ICR 1437 (CA)
Franks v Reuters [2003] IRLR 423 (CA)
James v London Borough of Greenwich [2008] IRLR 302 (CA)

Question 4 – Exam question employee/self-employed
s.230(1) ERA 1996 defines ‘employee’ -
“an individual who has entered into or works under a contract of employment”

Hence;
- Employees = contract of employment (or contract of service) - Self-employed worker (or independent contractor) = contract for services

Short v Henderson 1946

Whittaker v Minister of Pensions & NI 1967 QBD

Zuijs v Wirth Bros Proprietary Ltd 1955

Yewens v Noakes [1880]
- Does the party control what individual does and the manner in which he does it?

Ready Mixed Concrete v Minister of Pensions [1968] 2 Q.B. 497

Autoclenz Ltd–v- Velcher and others [2011] UKSC 41, 27 July 2011

Control Test
Greater degree of control more likely contract of service and employee. Control factors:
WhatWhen
WhereHow...
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