VL: EMPLOYMENT RELATIONSHIP? (Remuneration)

Question 1

General overview

Ready Mix Concrete v Minister of Pensions

Answer 1

• Two considerations:
o Is the tortfeasor an employee?
o Is the defendant the tortfeasor’s employer?

• Note: employer/employee relationship is one where there is contract of service rather than contract for services (employer/independent contractor).

Principle?
Established three part test – states you must look to overall nature of the relationship between individual and employer.

Question 2

Remuneration: Personal Service

Express Echo Publications v Tanton

AutoClenz Ltd v Belcher

McFarlane v Glasgow

Answer 2

1. Express Echo
   o Personal service – If worker entitled to send substitute, not employment relationship.
2. AutoClenz
   o UNLESS → worker’s written contract includes substitution clause but does not reflect reality of the arrangement between the parties.
3. McFarlane
   - Or right to send substitute is fettered so employer controls who substitute is.

Question 3

Mutuality of obligations

Kelly v Trusthouse Forte

Answer 3

Facts?
Casual waiter found not to be employee – no mutuality of obligations – no obligation to work, employers no obligation to provide work.

Principle?
Zero hours contract – no mutuality obligations means unlikely to be deemed employee.