Mind the gap!
by Philip
Just as, so the old joke goes, there is a gap in the performance of the England Football team- Excellent on paper, rubbish on grass, there can sometimes be a gap between what a written contract says and how it is performed, or perceived to be performed.
Differences between written contract terms and actual performance of the contract lies at the heart of the self-employed/ employee debate raging in some quarters of employment law.
If your contract for services (self employed contract) says one party is not obliged to offer the other party work and that party is not obliged to accept any work offered then the absence of mutuality of obligation means no employment status. However if in practice work is given regularly and accepted regularly does this mutate the contract into one of employee/employer?
The Court of Appeal has grappled with the issue and comes down mostly in favour of the written terms rather than the perceived performance. Read it here. What’s in the written contract is therefore vitally important.
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