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Employment L3 'Workers and Atypical working relationships - Coggle…
Employment L3
'Workers and Atypical working relationships
The rise of atypical relationship
Economic Changes
Employer Desire for flexibility and Increased efficiency
Changes in regulatory framework
Societal Changes
The Worker Model
Byrne Brothers v Baird
purpose of is to extend protection to
workers who are, substantively and economically, in the same position.
Reason: in a subordinate and dependent position vis-á-vis their employers
Legislative Definition
Employment Rights Act, s 230(3)
A worker is an individual in:
a) a contract of employment;
b) ‘any other contract...whereby the individual undertakes to do or perform personally any work or service for another party…whose status is not….that of a client or customer of any profession or undertaking carried on by the individual.’
Rights afforded
‘limb b worker’
• National Minimum Wage Act 1998, s 1(2);
• Working Time Regulations 1998, reg 2;
• Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, reg 1(2)
• Right to a statement of employment particulars (s.1 ERA)
• Certain rights related to trade unions (*note that collective bargaining remains an important feature of employment law, but is not covered in this particular module)
Parameters of the 'worker' category
‘not a single key to unlock the words of the statute in every case’.
Clyde & Co, para. 39
REQUIREMENTS
Contractual relationship between the purported worker and the employer (exchange of services for remuneration).
Uber v Aslam, Halawi v WDFG UK Ltd
Personal service
Mirror Group Newspapers Ltd v Gunning [1986] ICR 145
CA Wright v Redrow Homes (Yorkshire) Ltd [2004] ICR 1126
The profession or business to client or customer exception.
Cotswold Developments Construction Ltd v Williams
Test for this requirement set out:
actively markets his/her services as an independent person to the world in general
is recruited by the other party to work for it as an integral part of its operations
In Hospital Medical Group Ltd v Westwood, [2012]
CONTRASTING
Lady Hale in
Bates van Winkelhof [2014] UKSC 32
definition of worker
Workers are ‘are self-employed people who provide their services as part of a profession or business undertaking carried on by some-one else.’
Lady Hale in Bates defines independent contractors
people who carry on a profession or a business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them.
Mutuality of Obligations
Debate on what role it plays in worker status
James v Redcats
the absence of mutual commitments has no bearing on his/her status whilst he/she is actually performing the work
Windle v. Secretatary of State [2016] ICR 721
is relevant to finding a relationship of subordination that makes the other party a client or customer.
How do you distinguish a 'worker' from an 'employee'
Question of degree
Byrne Brothers v Baird
...will involve all or most of the same considerations as arise in drawing the distinction between a contract of service and a contract for services
...The basic effect of limb (b) is, so to speak, to lower the pass-mark, so that cases which failed to reach the mark necessary to qualify for protection as employees might nevertheless do so as workers.’
Lady Hale
There can be no substitute for applying the words of the statute to the facts of the individual case.
The Contract Personally to do work
The Equality Act 2010
defines its scope of coverage as extending to any ‘employment under a contract of employment, a contract of apprenticeship or a contract personally to do work’. s.83(2)(a))
Hashwani v Jivraj [2011] UKSC 40
new requirement into the EA definition, that of ‘subordination’
Pimlico Plumbers
endorsed an equation of ‘worker’ status and the ‘contract personally to do work’ (see paras. 13-15)
casual working arrangements and legal interventions
The 'gig' or 'platform' economy
Uber v Aslam
Autoclenz
R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee [2018] EWHC 3342
Worker definition under s. 296 TULRCA 1992.
In this case the substitution clause and the lack of personal service was enough to defeat worker status
Continutiy
ERA Part X
employee must have been continuously employed for a period of not less than two years ending with the effective date of termination of the employment contract.
Two Methods:
Shown under the common law to be in a binding continuous arrangement with the employer called an ‘umbrella contract.
take advantage of section 212 of the ERA, which allows employees to link their separate individual contracts of employment together into a continuous period of employment via a statutory bridge.
Cornwall County Council v Prater
The Court of Appeal held that although there was no continuous umbrella contract, there was sufficient mutuality of obligation to treat each individual hiring as a contract of employment and s.212 could be used to link them together into a longstanding contract.