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Apr 20, 2024

Assignment Task

Introduction

The growth in atypical working relationships in recent decades has meant that an increasing number of individuals fall into employment status ‘grey areas’ (Taylor & Emir, 2006). Whether or not an employment relationship is characterized by a contract of employment, rather than a contract for service, or indeed some other type of contract is a question that has always been answered inconsistently (Clarke, 2000). Legal rights and responsibilities are frequently at the mercy of discrete verbal distinctions (Selwyn, 2011) and as such it falls upon the good judgement of the tribunal as to whether the full range of protection offered by employment is relevant (Taylor & Emir, 2006). For this purpose, an employee means, as defined by the Employment Rights Act (ERA) 1996, s.230 (1):

(i) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(ii) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing

The overarching theme surrounding Claudia and Simon is whether their circumstances meet the definition of employee in the aforementioned act and as a result have protection from unlawful discrimination (Equality Act, 2010) and unfair dismissal (Part X of ERA) respectively. As Benny et al. (2012) argues; the definition of “employee” in the ERA is of little help when it comes to analysing specific cases in isolation and what was once a simple distinction to make has become infinitely more complex. The nineteenth-century concept of ‘master and servant’, whilst simple to understand, does not reflect the nature of the modern working relationship (Selwyn, 2011).

Case Study

Tribunals are attempting to distinguish genuine volunteers, largely unprotected by law provisions and not expressly mentioned in the Equality Act, from those whose real employment status is disguised and whose relationship with their employers will, in fact, be eligible for employment protection (Morris and O’Donnell, 1999). As alluded to in the introduction, it’s falls upon the tribunal to consider not only the label of Claudia – that she is a ‘volunteer’ but, where appropriate, the conduct of the parties within the relationship (Selwyn, 2011). Since the substantiate meaning of the contract of employment is not made clear by statute, the courts apply common law tests, with the most widely used test being the multiple, or multifactorial approach (Sargeant & Lewis, 2008). First developed and used by MacKenna in the case Ready Mix Concrete (South East) Ltd. V Minister of Pensions and National Insurance, the test lays out a number of conditions that must be fulfilled in order for the relationship to be concurrent with a contract of service. According to MacKenna a contract of service exists if

(i) 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 employer.

(ii) The agrees, expressly or impliedly, that in the performance of that service, he will be subject to the others’ control in a sufficient degree to make that other master

(iii) the other provisions of the contract are consistent with it being a contract of service

This demonstrates that the notion of integration is of very little weight when analysing agency cases at tribunal. Although in reality Alstom did exercise a significant degree of control over the claimant, just because Alstom looked and acted like an employee does not make it necessary to imply a contract of service (Higgins et al., 2007). It seems that in Simon’s case, the degree of control exercised by the council would not take on too much significance at tribunal. Similarly, in the case Craigie v London Borough of Harringe y, the EAT passed comment that the law surrounding long term agency staff is far from satisfactory and expressed the view that legislation will be needed to intervene. This is further evidence that the courts are moving away from implying a contract of service, a far cry from case law pre-Dacas.

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