Archive for the ‘Who is an Employee?’ Category
By Sarah - Tuesday, February 5th, 2008
The Court of Appeal has today handed down its decision in James v Greenwich Borough Council, which relates to agency workers and their status. The decision has been awaited for many whose employment claims were stayed pending the outcome of the appeal from the decision of Employment Appeal. Unfortunately the Court of Appeal has not really dealt with the conflicting case law but asserted that it believes all the authorities point the same way.
The background is that Mrs James brought a claim for Unfair Dismissal against the Council when she had a Temporary Workers Contract which said that there was no contract of employment. The Court ruled that the two contracts (agency and employment) are not mutually exclusive.
It is legally possible for a worker to have one kind of contract with an employment agency and another kind of contract with the end user to whom he renders services. This is an exercise in legal classification. The Court ruled that it requires the fact-finding tribunal to examine and assess carefully all the relevant evidence placed before it by the parties in the particular case for the purpose of determining whether the claimant fits the description of an “employee”.
It is only in the absence of an express contract of employment, which may be written or oral, that the ET is faced with the question whether it is necessary to imply a contract of employment between the claimant and the respondent. It is not always possible to predict with certainty how this question will be answered by the tribunal. It is therefore a question of fact and the Court should not interfere with the decision unless a clear error of law exists.
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By Liam - Monday, December 17th, 2007
In the appeal of North Wales Probation Area v Edwards, Mrs Edwards was offered work as a relief hostel worker after signing a document which was titled ’Relief Hostel Worker Contract’, to cover absences of the permanent staff. Sessional employment was what this appeal was concerned with, in which it was to be decided whether or not Mrs Edwards, a relief hostel worker, was an employee under a contract of employment.
It was held that there was a contract of employment when both a) Mrs Edwards arrived to work the sessions that had been offered to her and b) when she completed the hours that she was required to work. Mrs Edwards was held to be an employee under a contract of employment for each session she worked. It was therefore found that in light of these successive individual contracts Mrs Edwards worked under a contract of employment for the duration of each session (but not during the gaps).
The case did not deal with the issue of continuous employment for Unfair Dismissal purposes - the case was an appeal from a pre-hearing review that was limited to determining the issue of employment status. The decision is enough to give employees the right to make discrimination claims as no length of service is required, but could continuity clock up to reach the magic year?
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By Sarah - Wednesday, December 5th, 2007
The EU vote today on whether to give temporary workers the same rights in employment law as employees. This includes the right to claim Unfair Dismissal. We will update you on this subject as news comes through. The idea has however been met with a great deal of concern in the business community. The point of paying a premium for such staff is often because they are temporary and do not have the same employment rights as permanent staff in many areas.
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By Sarah - Wednesday, October 24th, 2007
The EAT has handed down a decision today, which confirms the law on agency workers/employees. The decision which can be found here in which the EAT upheld the Tribunal’s decision that the Claimant was an employee and had a claim for unfair dismissal. This is despite him having been put on the books as an agency worker and the fact he was paid by the agency after they took a 15% markup.
As always the case is fact sensitive but a useful reminder to agencies and employers out there about the level of control exercised by the end user over the “agency worker”.
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By Liam - Thursday, September 6th, 2007
A couple of weeks ago, this blog posted a reminder to owner/managers of companies to count themselves as employees for the purpose of counting the number of employees employed by the Company for the purposes of statutory rights contingent on a Company being of a certain size in terms of number of employees http://www.pjhlaw.co.uk/blog/do-you-company-shareholders-who-work-for-the-company-see-yourselves-as-employees-as-well/.
A few days after this blog post the EAT handed down its judgment in Nesbitt v Secretary of State for Trade and Industry. Do the judges at the EAT read this blog? Nesbitt, agreeing with our earlier post, confirmed that unless there is a sham, owner/managers can be employees if they work under a contract of service, although the EAT did cite various authorities in the form of decided cases rather than the view of this blog!
This decision has wide implications. For example, if directors are employees they can claim unfair dismissal if they are not dismissed for a fair reason and following a fair procedure. They can also claim statutory payments from the Redundancy Payments Office if their Company becomes insolvent.
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By Sarah - Thursday, July 5th, 2007
The Employment Appeal Tribunal revisited the issue of whether a casual worker could be an employee this week. The Claimant provided bar services at the KC Stadium in Hull through the Respondent Company. He was dismissed following an altercation with another employee without the statutory dismissal procedure being followed. The Claimant presented Claims for unfair dismissal amongst other things.
The Tribunal found that the Claimant did not have an umbrella contract giving him the status of employee when he was not working but that he was an employee during the periods he was actually engaged. The issue was therefore whether he had continuity of employment under s212 of the ERA 1996. The Tribunal said no but the EAT overturned this decision.
The EAT found that there was no global contract as there was no mutual obligations, which would keep the contract alive in between assignments. The EAT then looked at continuity under s212(1) and found that the effect was that if an employee works for whole or part of any week, then that entire week would count for the purposes of continuity of employment. This is irrespective of how many hours are worked. If the casual worker does not work at all in that week the other parts of the continuity provisions need to be considered.
This is not ground breaking law but a good reminder for those out there who hire casual workers, thinking that they are not entering into employment relationships with them. Sometimes there is a common misconception that casual workers who only work part-time cannot be employees. This is of course the wrong approach to take. You can read the Judgment here
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By Philip - Friday, February 23rd, 2007
Back to employment law today.
It’s those bare necessities, those simple bare necessities. Wise words from Walt Disney.The EAT have, refreshingly, gone back to basics with the whole issue of implied contract of employment and agency workers. In a nutshell terms will only be implied if it is necessary. In the case reported here the EAT have said it is not necessary to imply a contract of employment. Fact sensitive may be, but is the law reversing away from implying contracts of employment to agency workers? We’ll keep you posted.
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By Philip - Friday, February 2nd, 2007
The EAT has handed down yet another decision on the definition of employee. In summary the issue was whether a Tribunal is entitled to look outside the contractual documentation to establish the terms. In this case the Tribunal were looking at contractual documentation purporting to be a contract for services rather than of service (ie Employment). Because the contract did not say that the terms were the exclusive record of the terms of engagement, the Tribunal were entitled to look outside the written contract to establish what the terms were. In this case, despite the contractual documentation, the Tribunal found employment status. In order to minimise the risk of any contractor subsequently being found to be an employee you should ensure the contractual documentation states unequivocally that the contract is an exclusive record of the terms of engagement.
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By Philip - Wednesday, January 17th, 2007
Many employers use workers supplied by employment agencies. In a run of cases including Dacas and Franks the Court of Appeal has implied a contract of employment between the end user and the worker. In this case here the EAT said that there is no need to imply a contract of employment between end user and worker, where a contract of employment exists between worker and agency. Next time your agency is on the phone, it might be an idea to check to see if the agency employs any worker supplied to you.
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By Philip - Wednesday, January 3rd, 2007
In a series of cases in the Court of Appeal, the court has found an implied contract of employment between an agency worker and the end user, thereby raising the spectre that the agency worker you have engaged may in fact be your employee. In this decision by the EAT the EAT emphasised that there will be no contract of employment unless there exists a mutuality of obligation between the end user and the agency worker. Furthermore an implied contract of employment will only be implied where it is necessary to imply such a contract. The EAT found that the Tribunal were correct not to find an implied contract of employment, even though the agency worker had been with the end user for many years.
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