The Employment Relationship

Question 1

Why is a purely contractual approach to employment often seen as unsatisfactory according to critics like Otto Kahn-Freund?

Answer 1

It assumes equal bargaining power and can conceal “realities of subordination” behind a “conceptual screen of contracts concluded between equals.”

Question 2

What key principle was established in Nokes v Doncaster Amalgamated Collieries Ltd [1940] regarding an employee serving a new master?

Answer 2

A person cannot be compelled to serve a master against their will; transfer of employment requires employee knowledge and consent (at common law).

Question 3

What is a primary function of employers’ associations like the CBI in relation to government policy?

Answer 3

To act as “social partners,” being consulted by government on proposed policies or legislation, and potentially influencing EU decisions.

Question 4

Under which Act are employers’ associations primarily regulated?

Answer 4

Part II of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992).

Question 5

According to s.1(3)(a) ERA 1996, where would you typically find the identity of the employer?

Answer 5

In the contract of employment or the written statement of particulars of employment.

Question 6

Can a controlling shareholder also be an employee of their own company? Name a key case.

Answer 6

Yes. Lee v Lee’s Air Farming Ltd [1961].

Question 7

According to Clark v Clark Construction Ltd [2008], when might an employment contract between a controlling shareholder and their company NOT be upheld? (Name one reason)

Answer 7

If the company is a sham, OR if the contract was entered into for an ulterior purpose, OR if the parties do not conduct their relationship according to the contract.

Question 8

What defines “associated employers” under s.231 ERA 1996?

Answer 8

One company controls another (directly/indirectly), OR both companies are controlled by a third person.

Question 9

What is the purpose of s.48 National Minimum Wage Act 1998 concerning “superior employers”?

Answer 9

To deem a superior employer as a joint employer (with the immediate employer) to prevent avoidance of NMW through sub-contracting, especially where the worker works on the superior employer’s premises.

Question 10

What is the key difference between an “employee” (s.230(1) ERA 1996) and a “worker” (s.230(3) ERA 1996)?

Answer 10

“Worker” is broader. It includes employees AND individuals personally undertaking work for another party who isn’t their client/customer of a business they run.

Question 11

What “intermediate class” of individual did the EAT identify in Byrne Brothers (Formwork) Ltd v Baird [2002]?

Answer 11

An “intermediate class of protected worker” (e.g., labour-only sub-contractors in construction who are not employees but are not genuinely in business on their own account).

Question 12

List three main reasons why the distinction between “employed” and “self-employed” (or worker) status is legally important.

Answer 12

1. Access to different employment protection rights. 2. Method of taxation. 3. Employer’s vicarious liability. (Also, duty of care).

Question 13

What is the “close connection” test from Lister v Hesley Hall Ltd [2001] regarding vicarious liability for intentional wrongdoing?

Answer 13

To examine the relative closeness of the connection between the nature of the employment and the employee’s wrongdoing.

Question 14

What is the traditional “control test” for employment status, as exemplified by Walker v Crystal Palace Football Club Ltd [1910]?

Answer 14

It focuses on the employer’s right to control how the work is done.

Question 15

What is the core question asked by the “integration test” (or “organisation test”)?

Answer 15

Is the person’s work an integral part of the business, or merely accessory to it? (Stevenson, Jordan & Harrison v McDonald and Evans).

Question 16

What are the three conditions for a contract of service set out by MacKenna J in Ready Mixed Concrete?

Answer 16

1. Agreement to provide own work/skill for a wage. 2. Agreement to be subject to control. 3. Other provisions consistent with a service contract.

Question 17

What is meant by “mutuality of obligation” as a traditional irreducible minimum for an employment contract?

Answer 17

The employer is obliged to provide work, and the individual is obliged to personally perform that work for remuneration.

Question 18

What was the significance of “lack of mutuality” in O’Kelly v Trust House Forte plc and Carmichael v National Power plc?

Answer 18

The individuals were found not to be employees because there was no obligation to offer/accept work.

Question 19

What did Express and Echo Publications Ltd v Tanton [1999] decide about an unfettered right to send a substitute?

Answer 19

It is incompatible with the personal service obligation required for a contract of service.

Question 20

Generally, can an Employment Tribunal’s findings of primary fact be overturned on appeal?

Answer 20

No, appeals are usually on a point of law or perversity. Primary facts must stand unless no evidence supports them or inferences are insupportable.

Question 21

According to Massey v Crown Life Assurance [1978], when can the label parties put on their relationship be decisive?

Answer 21

If the true relationship is ambiguous and capable of being one or the other, then the agreed label can resolve that ambiguity.

Question 22

What principle regarding written terms versus the reality of the relationship was affirmed in Autoclenz Ltd v Belcher [2011] and later in Uber v Aslam?

Answer 22

Courts will look beyond contractual labels to the reality of the relationship, especially if written terms do not reflect the true agreement or are a “sham.”

Question 23

What is the primary purpose of a contract of apprenticeship according to Wiltshire Police Authority v Wynn?

Answer 23

To “qualify the apprentice for his particular trade or calling”; work execution is secondary.

Question 24

Is the “Employee Shareholder Status” (ESS) introduced by the Growth and Infrastructure Act 2013 still open for new arrangements?

Answer 24

No, it was closed to new arrangements from 1 December 2016.

Question 25

Why is "continuity of employment" important in UK employment law?

Answer 25

It is a qualifying period for many statutory rights (e.g., unfair dismissal).

Question 26

In R v SoS for Employment, ex p Seymour-Smith and Perez (No 2), was the 2-year unfair dismissal qualifying period found to be discriminatory, and if so, was it justifiable?

Answer 26

It had a disparate adverse effect on women but was held to be objectively justified by a legitimate social policy aim.

Question 27

According to General of the Salvation Army v Dewsbury, when does an employee's period of continuous employment begin?

Answer 27

On the day on which the employee starts work under the relevant contract of employment, which may differ from the actual date work commences.

Question 28

Name two types of absence from work under s.212(3) ERA 1996 that do not break statutory continuity.

Answer 28

1. Sickness or injury (max 26 weeks). 2. Temporary cessation of work. 3. Absence by custom or arrangement where regarded as continuing in employment.

Question 29

Does a week of strike action break continuity of employment under s.216 ERA 1996? Does it count towards the length of service?

Answer 29

It does NOT break continuity, but it does NOT count for computing the length of service.

Question 30

Name one situation under s.218 ERA 1996 where continuity is preserved despite a change of employer.

Answer 30

Transfer under TUPE 2006 OR transfer of a trade/business/undertaking OR transfer to an associated employer OR change in partners/PRs/trustees OR specific statutory situations.

Question 31

What was the landmark decision in Uber BV v Aslam [2021] UKSC 5 regarding the status of Uber drivers?

Answer 31

The Supreme Court held that Uber drivers were "workers" entitled to rights like NMW and paid leave.

Question 32

What approach did the Supreme Court in Uber v Aslam emphasize when determining worker status, particularly concerning contractual terms?

Answer 32

Tribunals should look beyond the terms of any written contract to the actual reality of the working relationship, focusing on subordination and dependency. Contractual terms inconsistent with this reality can be disregarded.

Question 33

How did the "Good Work Plan" change the right to a written statement of particulars (s.1 ERA 1996) from April 2020?

Answer 33

It became a day one right (previously within 2 months) and was extended to cover all workers (not just employees), with expanded information requirements.

Question 34

From April 2020, what change was made to the period required to break continuity of employment for certain purposes?

Answer 34

The period was increased from one week to four weeks.

Question 35

What is the current status of the "Employee Shareholder Status" (ESS)?

Answer 35

It was closed to new arrangements from 1 December 2016.

Question 36

How have changes to IR35 / Off-Payroll Working rules (extended to private sector April 2021) impacted the determination of employment status for tax purposes?

Answer 36

Responsibility for determining if IR35 applies (i.e., if the individual would be an employee if engaged directly) now largely rests with the medium/large-sized end-client, requiring them to apply employment status tests.

Question 37

What was Otto Kahn-Freund's view on the "conceptual screen" that employment contracts can create?

Answer 37

He believed employment contracts often conceal "realities of subordination" behind a "conceptual screen of contracts concluded between equals."

Question 38

Name one of the principal purposes of an employers' association, as defined in s.122(1) TULRCA 1992.

Answer 38

Regulating relations between employers and workers or trade unions. (Other principal purposes could involve representing employers in specific sectors or acting as social partners).

Question 39

In Secretary of State v Bottrill, what was considered crucial beyond just shareholding when determining if a managing director was an employee?

Answer 39

The genuineness of the written employment contract, the reasons for it, and the actual duties performed under it, alongside the level of control (e.g., by other directors).

Question 40

For "associated employers" (s.231 ERA 1996), what kind of "control" is typically looked for, and what did Payne v SoS for Employment suggest for exceptional continuity cases?

Answer 40

Typically, control through share ownership/voting rights (one company controlling another, or both controlled by a third person). Payne suggested de facto control might be relevant in exceptional circumstances for continuity.

Question 41

In Abbey Life Assurance Co Ltd v Tansell, what was the rationale for the ultimate hirer, not the agency, being the "principal" for discrimination law purposes?

Answer 41

Parliament likely intended the ultimate hirer, who actually makes the work available for an individual, to be the one responsible as the "principal."

Question 42

What factor distinguishes the "intermediate class of protected worker" (from Byrne Brothers) from genuine independent contractors in terms of their business operations?

Answer 42

They are not genuinely in business on their own account; they are often labour-only sub-contractors economically dependent on the engager.

Question 43

In Lister v Hesley Hall Ltd, what did the "close connection" test specifically link to establish vicarious liability for intentional wrongdoing?

Answer 43

It linked the nature of the employment (the inherent risks and duties) with the employee's specific wrongdoing.

Question 44

What was significant about the timing of the assault committed by the employee in Mohamud v Morrison Supermarkets in relation to his duties for vicarious liability?

Answer 44

The assault, though away from the kiosk, was deemed to be closely connected to his job of serving customers, as he followed the customer out still in his role.

Question 45

What limitation of the traditional "control test" became evident when considering employment status for highly skilled professionals?

Answer 45

Its suitability diminished as direct control over how highly skilled work is performed is often minimal or impractical.

Question 46

According to White v Troutbeck SA, which aspect of control is more critical: the practical day-to-day control exercised or the employer's contractual right to control?

Answer 46

The employer's contractual right to control is the key question.

Question 47

In the "economic reality" test (Market Investigations), what is a key indicator of self-employment related to financial risk and reward that is often absent for employees?

Answer 47

The individual takes financial risk and has the opportunity for profit dependent on their own management and investment (e.g., providing own equipment, bearing running costs).

Question 48

While "mutuality of obligation" is traditionally key, how did the Supreme Court in Uber v Aslam approach it when substantial control and dependency existed for "worker" status?

Answer 48

The Supreme Court placed less emphasis on a strict, ongoing mutuality requirement for "worker" status where individuals were integrated and subject to significant control and dependency when working.

Question 49

What is the key difference between an "unfettered" right to substitute (Express and Echo) and a "limited/conditional" right (Pimlico Plumbers) regarding personal service?

Answer 49

An "unfettered" right (delegate to anyone, at own expense) generally negates personal service. A "limited/conditional" right (e.g., substitute from approved list, employer pays) may not negate it.

Question 50

According to Autoclenz Ltd v Belcher, when assessing the "true agreement," is the court only concerned with the parties' intentions at the contract's inception?

Answer 50

No, courts must consider whether written terms represent true intentions/expectations not only at inception but, if appropriate, as time passes and the relationship evolves.

Question 51

In Edmunds v Lawson QC, what crucial element of reciprocal obligation, typical of an apprenticeship, was found to be missing in the pupillage?

Answer 51

The pupil had no obligation to serve/work for the master or carry out specific instructions, and correspondingly, the master had no defined obligation to provide specific work or structured training beyond general exposure.

Question 52

What presumption does s.210(5) ERA 1996 establish regarding an employee's period of employment?

Answer 52

It establishes a presumption that employment has been continuous.

Question 53

In Curr v Marks and Spencer plc, why did the 4-year child break scheme break continuity, despite being an "arrangement"?

Answer 53

Because the ex-employee was not regarded by both parties as continuing in the employment of the employer for any purpose during the break period.

Question 54

How does a transfer under TUPE 2006 impact an employee's awareness requirement compared to the common law position in Nokes v Doncaster?

Answer 54

Under TUPE, contracts can automatically transfer, preserving continuity, sometimes even without the employee's prior explicit knowledge or consent (though consultation obligations exist). Nokes required knowledge and consent at common law.

Question 55

Name one specific category of information that became a requirement for the written statement of particulars (for workers and employees) from 6 April 2020 under the Good Work Plan.

Answer 55

Details of any paid leave entitlements beyond statutory holiday (e.g., sick pay, family-related leave), OR terms related to hours/days of work and variability, OR details of any probationary period, OR training entitlements.

Question 56

What is the consequence if an employer (even if a controlling shareholder) and their company do not conduct their relationship according to the terms of an alleged employment contract, as per Clark v Clark Construction?

Answer 56

The alleged employment contract may not be given effect by the courts, particularly if it appears to be a sham or for an ulterior purpose.