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CONTRACT OF EMPLOYMENT
What Is It?
 The importance of the employment contract
 The distinction b/n an employee and an
independent contractor;
 Tests used by the courts/tribunals to interpreter
this distinction;
 The status of special categories of worker
 Contents of the employment contract – express
and implied terms, terms implied by statute;
 The right to a written statement –
 Restraint of trade clauses;
 Qualifying for employment rights – continuity;
 Changing terms of employment
 Flexible working arrangements;
Contract of Employment



Contract of employment and contract of selfemployment – fundamental importance
Only employees qualify for employment rights
– unfair dismissal, redundancy payments,
minimum notice on termination etc
...

Types of Contract





Full - time contract
Part-time contract
Fixed-term contracts
Regulations (Prevention of Less Favourable
Treatment) 2000 and 2002 under the ERA
2002 to prevent employees

Distinction b/n an Employee & an Independent
Contractor



Courts and tribunals may have to decide;
Tests applied;
‒ control test
‒ integration/organization test
‒ multiple test

Tests Developed Through Case Law for
Determining Employee’s Status
 Control test – does the person who is to be
regarded as the employer control the
employee or servant?
 Control extends to not just what the employee
does, but how it is done
 If the answer is in the affirmative – there is
employer/employee relationship
 Independent contractor – might be told what to
do, but not how to do the work
 One problem – interpreted strictly it results in
skilled and professional people
Walker v
...
The court held that he was
employed under contract of employment because
the club has a control in form of training,
discipline and methods of play
...
Owing to the driver’s
negligence a checker was injured
...

 If control test is interpreted in modern working
practices, it is insufficient due to the existence
of highly skilled by the professional workers
and makes detailed control impossible
...


Integration Test – Counters The Deficiencies of
The Control Test
Q to be asked is - how far is the servant/employee
integrated into the employer’s business
...

Employer could avoid tax and national insurance
provisions, liability for accidents
...

Multiple Test – Much Wider
 The servant agrees that, in consideration of a
wage or other remuneration, he or she will
provide his or her own work and skill in the
performance of services;
 He or she agrees expressly or impliedly, that in
the performance of that services, he or she will
be subject to the other’s control in a sufficient
degree by the employer;
 The other provisions of the contract are
consistent with its being a contract of service;
Ready Mixed Concrete v Ministry of Pensions Facts: driver of a special vehicle worked for one
company in delivery of liquid concrete to building
sites
...
Held; whether the
worker is working on his own account
...

Atypical Workers – Application of the
Multiple Test




Work from home- home workers;
Casual basis work – casual workers;
Agency workers;

Mutually Obligation Test
Indicates the status of casual or part-time
workers by looking into the result of the
existence of a contract of employment,
In where both employer & employee must
have obligations in respect of one another
...

O'Kelly v Trusthouse Forte Plc 1983 -Facts:
The employee was a 'regular casual' working
when required as a waiter
...

The employment tribunal held that there was
no contract of employment because the
employer had no obligation to provide work &
the employee had no obligation to accept work
when offered
...
Whether there’s a contract of
employment is a question of law but it
depends entirely on facts of each case; here
there was no 'mutuality of obligations' and
hence no contract
...
She was paid on a piece
work basis without deduction of income tax or
NIC
...

Why Does it Matter?



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