Employment Relationship+Non-standard Work

Question 1

mutuality of obligations test - to be an employee there needs to be an obligation on the employer to provide work and the employee has to perform the work for some remuneration.

Answer 1

Carmichael v National Power plc [2000]

Question 2

more flexible ‘control’ test for definition of an employee under s.230(1) ERA

Answer 2

White v Troutbeck [2013] per Richardson J - “the question is not by whom day-to-day control was exercised but with whom and to what extent the ultimate right of control resided”

Question 3

UK statutory protection provided for agency workers which includes limited rights of equal treatment and prevention of abuse of agency workers

Answer 3

The Agency Workers Regulations 2010

Question 4

Leading case on agency workers - they cannot be “employees in disguise”.
Can only imply a contract between the agency worker and the end user where the ‘business necessity’ test is satisfied.

Answer 4

James v LB Greenwich [2008]

Question 5

Qualifying period for unfair dismissal

Answer 5

s.108(1) ERA - 2 years

Question 6

Contemporary theme which is increasingly transferring the risk from the employer to the employee - blurring the lines between employment and self-employment

Answer 6

Demutualisation

Question 7

Contemporary theme which describes the shift from collective representation e.g. TUs

Answer 7

Individualism

Question 8

Case which caused the removal of ET fees

Answer 8

UNISON (brought judicial review) [2017] per Lord Reed and Lady Hale

Question 9

5 examples of deregulatory/weakening of employment protection

Answer 9

1. extending the qualifying period for UD from 1 to 2 yrs.
2. introduction of “employee shareholders” from 2013
3. limited TU rights as a result of Trade Union Act 2016
4. Restricting vicarious liability claims in equality cases (only have to take reasonable steps e.g. have a policy)
5. capping compensation awards by ETs

Question 10

examples of extensions to employment protection

Answer 10

1. more flexible parental leave and pay
2. increasing the minimum wage in 2016 - now the national living wage for over 25s
3. banning of exclusivity clauses in zero hour contracts

Question 11

Statutory definition of employee and worker

Answer 11

s.230(1) ERA and s.230(3) ERA respectively

Question 12

employment status in Equality Law

Answer 12

s.83(2)(a) EA - have to be under a contract personally to do work
NB - this definition is similar to worker in s.230(3)(b) ERA - so isn’t just employees

Question 13

Rights only available to employees

Answer 13

1. Unfair Dismissal (after 2yrs)
2. Redundancy Pay
3. Maternity/Paternity Pay

Question 14

Protection offered to both employees and workers

Answer 14

1. Equality Law

2. National Minimum Wage

Question 15

Three common law tests to determine whether someone has employee status

Answer 15

1. control test
2. risk test
3. mutuality of obligations

Question 16

common law ‘control’ test to define employee status

Answer 16

Yewens v Noakes [1880] confirmed in Ready Mixed Concrete [1968] - idea of an element of subordination

Question 17

Integration test - If the ‘control’ test for the common law definition of employee isn’t passed it is sufficient to show a certain level of integration

Answer 17

Stevenson, Jordan and Harrison [1952] - question of whether they’re an ‘integral part of the business’, but remember this test isn’t useful for clarifying the status of non-standard workers

Question 18

Most recent case of the application of the ‘risk’ test to define employee status

Answer 18

Stringfellows v Quashie - was self-employed because she paid the club to be provided with the opportunity to earn money by dancing with clients

Question 19

Wrong label cases which developed the common law test of ‘mutuality of obligations’ to define employee status

Answer 19

Kalwak [2008] - strict
then Szilagyi [2009]
then Autoclenz [2011]

Question 20

Definition of ‘mutuality of obligations’

Answer 20

an ongoing contractual nexus or global contract with the employer - this distinguishes between employees and workers by looking at the ‘true’ relationship of the parties

Question 21

Case which held that having a ‘zero hour contract’ doesn’t mean you automatically fail the mutuality of obligations test if you still have a set working pattern you have to follow

Answer 21

Pulse Healthcare [2012] - zero hour workers were found on the facts to be ‘employees’ because even if people had specific shifts there were mutual obligations for the delivery of the whole care package on an ongoing basis inc. cover for holidays and sickness

Question 22

General definition for an employee

Answer 22

contract of employment based on mutual obligations

Question 23

General definition for worker

Answer 23

Quasi-dependent. A contract to perform work or services personally for another based on dependency, can’t be a client or customer

Question 24

General definition of self-employed

Answer 24

contract for services based on independence

Question 25

Wrong label case which applied the strict test for 'mutuality of obligations'

Answer 25

Kalwak [2008] - per Elias J dissenting - "both parties [must have intended the term] to misrepresent their true actual relationship".

Question 26

Wrong label case which applied a less strict test for mutuality of obligations

Answer 26

Szilagyi [2009] - per Smith LJ - "the court must look a the substance not the label" i.e. they must decide if the written document reflects the true ongoing employment relationship, no requirement of intent. This is the contractual approach

Question 27

Wrong label case which applied the least strict test for mutuality of obligations which is followed today - distinguishing between employees and workers

Answer 27

Autoclenz v Belcher [2011] - per Lord Clarke - "[T]he relative bargaining power of the parties must be taken into account in deciding...what was agreed and the true agreement" i.e. written agreement is only part of it

Question 28

Applied the 'true agreement' approach from Autoclenz [2011] in the context of 'worker' status

Answer 28

Pimlico Plumbers [2018]

Question 29

Case which developed the factor, developed from Autoclenz, that the 'worker' concept can't include someone with status of a client or customer

Answer 29

Hospital Medical Group v Westwood [2012] - doctor who provided an exclusive hair restoration clinic on the side who was found to be a worker

Question 30

3 indicators of a 'worker' from Autoclenz v Belcher [2011]

Answer 30

1. individual who has entered into or worked under a contract with another party for work or services 2. performs the work personally 3. doesn't have the status of a client or customer of the individual

Question 31

Held there is no requirement of subordination to have 'worker' status

Answer 31

Bates van Winkelhof [2014] - partner in law firm was found to be a worker and Pimlico Plumbers [2018]

Question 32

Each individual assignment is part of an umbrella contract between the individual and the company

Answer 32

Uber [2018]

Question 33

Example of case where individuals weren't found to be workers

Answer 33

Mingley v Pennock [2004] - taxi drivers that take their own fares

Question 34

s.211(1) ERA - calculating continuity of employment case

Answer 34

Cornwall CC v Prater [2006]

Question 35

s.211(1)(a) ERA - Transferring to another branch of a shop is deemed to be a contract with the same employer just at a different store and so counts as continuous employment for the purposes of qualifying periods

Answer 35

Madhouse [2013] - weeks from working in both locations could count towards the qualifying period for his unfair dismissal claim

Question 36

statutory exceptions for weeks of absence from employment i.e. they don’t break continuity of employment and do count towards QPs

Answer 36

s.212(3)(a-c) ERA

Question 37

Any agreement that prevents or limits a person from bringing any proceedings before an ET is void

Answer 37

s.203 ERA

Question 38

case which shows strict intepretation of s.212(3)(c) ERA for breaks counting a continuous employment because of an arrangement or custom

Answer 38

Ker v M&S - career break scheme so she could leave and raise her child, no agreement as there was no meeting of the minds and no mutual expectation of continuity

Question 39

statutory authority for the fact that employment is presumed continuous unless contrary is shown i.e. burden of proof is on the employer

Answer 39

s.210(5) ERA

Question 40

definition of employee shareholder - category of employees in which employees can voluntarily trade off some of their rights in return for shares

Answer 40

s.205A ERA

Question 41

protection from suffering detriment because of not accepting an offer to be an employee shareholder

Answer 41

s.47G ERA and s.104G ERA

Question 42

doesn’t matter if the individual was originally hired through an agency if they’re being treated as if they were directly hired by the employer then they should have the benefits

Answer 42

Motorola - Motorola had indirect control of the worker (so they were the employer) so was able to bring a UD claim

Question 43

Distinguished Muscat on its facts. Mere passage of time doesn’t alone lead to an implied contract of employment for agency workers, need mutuality of obligations and control

Answer 43

James v LB Greenwich (more restrictive approach) --> the courts were reluctant to make changes to social policy

Question 44

Distinguished Muscat [2006] on its facts. Mere passage of time doesn’t alone lead to an implied contract of employment for agency workers, need mutuality of obligations and control

Answer 44

James v LB Greenwich (more restrictive approach)

Question 45

A week in which there is no contract of employment in force can still count towards continuity of employment if there is an absence caused by a temporary cessation of work (s.212 ERA)

Answer 45

Ford v Warwickshire CC [1983] -Where a teacher who had a summer break still had employment continuity

Question 46

Emphasised the need for proper enforcement of employee rights, given the inherent imbalance of power.

Answer 46

UNISON per Judge Eady

Question 47

Emphasised the need for proper enforcement of employee rights, given the inherent imbalance of power. Inequality in the wage/work bargain

Answer 47

UNISON v Lord Chancellor [2017] per Lord Reed

Question 48

Two late 20thC judgments which show how the mutuality of obligations test has been expanded to cases of 'casual workers' - strict approach

Answer 48

1. O'Kelly | 2. Carmichael

Question 49

Example of workers being able to turn down work, but under a preferential list system from which they could be removed

Answer 49

O'Kelly - waiters were merely independent contractors

Question 50

Who holds the right to request flexible working hours?

Answer 50

only employees

Question 51

More generous approach to mutuality of obligations test - it is enough to constitute a contract of employment if when the employer offers work, it must be accepted

Answer 51

Wilson v Circular Distributors [2006]

Question 52

E McGaughey's opinion on zero hour contracts

Answer 52

His 2014 article - "Are Zero Hours Contracts Lawful? relying on the 'true agreement' test from Autoclenz, he suggests that express contract terms referring to 'zero hours' are one-sided and may 'lie in the shadowy recess of borderline legality'"

Question 53

Example of 'zero hours' clause being a sham

Answer 53

Pulse Healthcare

Question 54

Statutory definition of a zero hour contract

Answer 54

s.27A(1) ERA 1996 - broad enough to include workers and employees NB - there is a worry that including the definition of an exclusivity clause in this section will cause more 'rogue employers' to find a way to evade the exclusivity ban

Question 55

Four proposals for reform of zero hour contracts in J Kenner's article

Answer 55

1. obligation on employers to issue a written statement of contract particulars at commencement of employment (like s.1 ERA) inc. when the worker will be notified about available work 2. compensate workers if they arrive to work to find there is none available (Scottish proposal) 3. employer requirement to give a minimum notice periods of work 4. New Zealand model - guaranteed hours where worker has to be available, worker can refuse extra hours, prohibits ZHCs without a guarantee of work

Question 56

Three suggestions for reform of zero hour contracts in Pickavance Report (labour opposition government)

Answer 56

1. employers only being able to require availability in direct proportion to the amount of work they offer (Pickavance Report) 2. worker's right to request a change of contract after 6 months of working 'regular hours' - but employer can justify refusing 3. after 12 months continuous employment on regular hours automatically have a right to a contract with minimum hours

Question 57

Judy Fudge's opinion on modern labour law

Answer 57

The most important shift in the discipline of labour law has been towards individualisation

Question 58

inequality of the employment relationship at the point when the contract is agreed

Answer 58

wage/work bargain

Question 59

Case which shows the limitations of judicial interpretations of terms

Answer 59

Stringfellows v Quashie - court found that a 'precarious' worker (sex industry) with absence of a direct wage/work bargain between the parties meant the term 'self-employed' represented the true agreement despite strong evidence of control and subordination

Question 60

Case which shows a wide reading of s.211(1)(a) ERA for continuous employment

Answer 60

Madhouse - was terminated when store shut down but accepted an offer to work at their other store in sheffield a week later. was dismissed from the sheffield store and was held could claim UD as there was continuity between the two employments

Question 61

Main case of continuity of employment under s.210-212 ERA

Answer 61

Prater - teacher who had a gap between the teaching of kids with special needs was held to just be temporary cessations of work rather than a break in employment

Question 62

Statutory provision which prevents an agreement between the parties to restrict a worker's rights under the ERA

Answer 62

s.203 ERA - agreement will be held void e.g. you can agree to break continuity