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Definition s 230(1) ERA

1996

Tests for
employees
(pgs 6 11 tb)

Employee status
'an individual who has entered or works under (or where the
employment has ceased, worked under) a contract of
employment"
Contract of employment - s 230(2) ERA 1996 - 'a contract of
service or apprenticeship, whether express or implied, and (if it
is express) whether oral or in writing"
Control Test - Yewens v Noakes
Integration test - Stevenson Jordan & Harrson Ltd v McDonald
and Evans
Economic reality test - Market Investigations Ltd v Minister of
Social Security
Multiple factor test - advocated by McKenna J in Ready Mixed
Concrete
A contract of service existed if 3 conditions are fulfilled:
1. The servant agrees that, in consideration of a wage or
other remuneration, he will provide his own work and skill
in the performance of some service for his master
(mutuality of obligation)
Stephenson v Delphi Diesel Systems Elias J stated that
mutuality determines whether there is a contract in existence
at all.
Must show that the contract continues to exist in gasps
between the periods of employment as mutuality poses no
difficulties during the period when the individual is working
St Ives Plymouth Ltd v Haggerty a casual worker was an
employee as there was a sufficient mutuality of obligation in the
gaps when no work was performed no obligation on the
worker to accept work and no guaranteed min amount of work
claimant had expectation that she would be offered a
reasonable amount of work
Cornwall County Council v Prater sufficient mutuality of
obligations during each assignment carried out by a teacher
while to contract was in force. Gaps between assignments =
temporary cessations of work s 212 ERA 1996
Little v BMI Chiltern Hospital NOT empee because Eer
could and did send porters home during a shift, without pay for
the rest of the shift, when their services were not needed = no
mutuality of obligation but only a contract for freelance

services. but see Drake v Ipsos Mori Little should not be


treated as authority that a right to terminate work at will is
inconsistent with a contract of employment.
Knight v BCCP NOT employee no contractual
documentation, eee to receive mileage rates for work that he
did, eee had to provide car and pay all outgoings in relation to
the car, he would send invoice to eer and then get paid, no set
hrs, eee paid Nino contributions and tax eer dictated dress to
be worn, how car presented, how to open doors etc no eee as
no obligation to accept work and the co was under no obligation
to offer work to him.

Personal service (entitled to appoint substitute)


Express and Echo Publications v Tanton CA stated that to
be a contract of service, a contract had to contain an obligation
on the part of the eee to provide his services personally
McFarlane v Glasgow City Council - lack of personal service
is not necessarily conclusive Eee as the eee could not
unilaterally refuse to work, it was only in circumstances where
he was unable to attend that a substitute could be provided and
any substitute had to be approved by the employer
Real Time Engineering Ltd v Callaghan no eee as the
agreement contained a term allowing for substitute to be sent
without restriction.
Autoclenz v Belcher - bargaining positions of the parties
relevant, need to look at all circumstances of the case.
2. The servant agrees, expressly or impliedly, that in the
performance of that service he will be subject to the
other's control in a sufficient degree to make that other
master (control)
Control= the power of deciding the thing to be done, the way,
the means, the time and the place McKenna J in Ready Mixed
Concrete
Montgomery v Johnson Underwood Ltd - for a contract of
service to exist there has to be control.
Control requires a general ultimate direct authority over an
employee in the performance of his work however it is not
conclusive in itself.

White and Another v Troutbeck SA the issue of control


concerns whether there is a contractual right of control over the
worker, and not whether in practice the worker has day to day
control of his own work.
3. The other provisions of the contract are consistent
with its being a contract of service.
Freedom to do a job by one's hands or by another's is
inconsistent with a contract of service, though a limited or
occasional power of delegation may not be ( Autoclenz Ltd v
Belcher - case where employees)
- CA said that tribunals should focus on the actual legal
obligations of the parties rather than merely relying on the
written terms of an agreement
- it is not necessary to find any deliberate intention to deceive
- Supreme Court held that the real situation trumped what was
written in the contract
- Essential Q What was the true nature of the agreement
between the parties? That might be what is written down, but
was not necessarily so.
Employment tribunals must consider the overall picture pg 9
for relevant matters
Enfield Technical Services Ltd v Payne individuals who
characterise themselves as self employed but who are in fact
employees can still bring UD claims, unless they have
misrepresented the nature of the working relationship.
Stringfellows Restaurants Ltd v Quashie no Eee as the
employer was under no obligation to pay the dancer and she
took the economic risk.
Workers