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Employment L2 - Coggle Diagram

- - - - Ready Mixed Concrete McKenna J set out 3 conditions for a contract
        
        The servant agrees that, in consideration of wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.
        
        Mutuality of obligations and personal service
        
        Express & Echo Publications Ltd v Tanton [1999] ICR 693
        
        ... a person who works for another is not required to perform his services personally, then as a matter of law the relationship between the worker and the person for whom he works is not that of employee and employer. Gibson LJ
        
        Irreducible minimum of a contract of employment.
        
        substitution clause’ - can nomiinate a substitute to perform work
        
        Distinction between unwilling and unable; Express (p. 88) & Echo Publications v Tanton
        
        Degree of influence over substitution. Pimlico Plumbers
        
        He 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
        
        Yewen v Noakes (1880) 6 QBD 530
        
        [A] servant is a person who is subject to the command of his master as to the manner in which he shall do his work.
        
        Control’ relates to who has authority over the content and manner of work done; . See Ready Mixed Concrete (South East) Ltd v. Minister of Pensions [1968] 2 QB 497
        
        Irreducible minimum for the existence of a contract of employment’— some sort of control or supervision by the employer is a necessary element of finding a person is an employee; in Ready Mixed Concrete
        
        Required a fairly low level of control White v Troutbeck SA [2013] IRLR 949, CA (Mummery LJ) para38)
        
        The other provisions of the contract are consistent with its being a contract of service.
        
        Encompasses vaguely any contractual provisions consistent with being an employment contract
    - - Integration
        
        Integral part of the business
        
        Stevenson Jordan & Harrison Ltd v McDonald and Evans [1952] 1 TLR 101 CA
        
        Autoclenz v Belcher
        
        Ready Mixed Concrete
        
        Extent to which the worker is integrated into the hirer’s firm or organisation (Rules and procedures)
      - Economic reality
        
        Take into account whether a worker is economically dependent on the hirer, and which party bears the risk of financial loss or gain.
        
        Criticised legitimately
        
        Casual workers
        
        self-employed and employee
        Deakin and Morris- Distinction between:
        
        personal subordination’ (e.g. control by the hirer); and
        
        ‘economic subordination’ (financial dependency on the hirer)
      - THE LABEL
        Unable or Unwilling
        
        Express (p. 88) & Echo Publications v Tanton
        
        to take a class, she would be required to arrange for a replacement from a register of coaches maintained by the employer
        
        effectively had a power of veto over any substitute worked... where she was unable to work, she was held to be an employee.
        
        The ‘label’ the parties attach to a relationship.parties’ view of their own relationship or the statements they have made about the nature of their contract
        
        Historically: Objective approach Ferguson v. John Dawson [1976] 3 All ER 817 CA.
        
        More tolerant of the parties’ designation of the relationship Massey v Crown Life Insurance Co [1978] ICR 590, 595
        
        instances where entered into an informal manner- label is influential Carmichael v National Power plc [2000] IRLR 43, 47 (Lord Hoffman), Young & Woods Ltd v West [1980
        
        Tie breaker
        
        Stringfellow Restaurants Ltd v Quashie, [2013] IRLR 99
      - Mutuality of Obligation
        
        this factor is still in some flux
        
        Requires an exchange of duties on behalf of the two parties:
        
        Wage/ work bargain exhange
        
        2) Mutuality of future commitments where you have two promises exchanged
        
        Mandatory for finding employment status
        
        Carmichael v National (Power Plc [1999] ICR 1226;
        
        O'Kelly v Trusthouse Forte Ltd [1983]
        
        Appears to exclude casual workers
      - Potenetial Other Factors
        
        Deduction of PAYE and NI contributions:
        
        Airfix Footwear Ltd v Cope [1978] ICR 1210;
        
        Davis v New England College of Arundel [1977] ICR 6)
        
        Provisions of tools and materials:
        
        Hall v Lorimer
      - SHAM contracts
        
        Autoclenz v Belcher
        
        Offers a novel approach for the courts determining whether the terms of an agreement reflect the reality
        
        involves consideration of whether and in what circumstances the Employment Tribunal may disregard terms which were included in a written agreement between the partie
        
        instead base its decision on a finding that the documents did not reflect what was actually agreed between the parties or the true intentions or expectations of the parties.
        
        Purposive approach Autoclenz, per Lord Clarke, paras 17, 35
        
        The relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreemen
        
        the written agreement is only a part.
        
        circumstances, workers may wish to argue that the formal terms of their contract are a ‘sham’. Definition of a sham contracts are in Snook v London and West Riding Investments Ltd [1967] 2 QB 786
- - - - a. Makes it a market transaction- work for exchange of wages
        b. Freedom of contract legitimizes a diverse variety and range of contractual arrangements that employers can create
        c. Affords hirer of labor then to demutualize the risk and costs associated with a working relationship
      - Fulfill 2 main rules:
        
        Defining the scope
        
        Distributing rights and obligations
      - Common Law distinction
        
        Employees- 'Contract of Service'
        
        Independent Contractors- 'Contract for services'
      - STATUTES
        
        Contract of Employment Act 1963
        
        Employment Rights Act 1996
        
        In this Act ‘contract of employment’ means a contract of service….whether express or implied….whether oral or in writing.
        
        Other rights require 'worker' status
        
        o Minimum Wage
        
        o Maximum working hours, rest breaks, and paid holiday
        
        o Anti-discrimination protections
        
        TULRCA 1992 s 295