 |
Case
Law Article |
|
A
brief look at some of the important employment status cases. |
|
| Express
& Echo Publications v Tanton [1999]. Court of Appeal. |
Because
the driver in the case had the right of substitution and he invoked
this right he was found to be self-employed as such a right is not
consistent with a contract of service. Advisers should be aware that
this case is limited in its application to all situations.
|
|
| Carmichael
v National Power Plc [1999]. House of Lords |
Recent
finding that mutuality of obligation is vital within a contract of
employment. Guides who worked on a "casual as required" basis were
deemed to be self-employed. National Power was under no obligation
to offer them work and the guides were free to accept or decline any
work that was offered to them. |
|
| Smith
& Chanton Group v Costain Ltd [1999]. EAT |
The
Tribunal found that, because of (a) the method of payment, (b) previous
treatment as self-employed by the Inland Revenue, (c) the relationship
was not permanent, (d) the worker was not issued with a disciplinary
code, received no holiday pay, or pension and (e) there was no provision
for notice, that a worker- working through an agency was not an employee
of the client. |
|
| Chen
Yuen v Royal Hong Kong Golf Club [1998]. Privy Council |
A
golf caddie who was free to work as and when he pleased was found
to be self-employed because there was no mutuality of obligations.
|
|
| Bhadra
v Ellam [1998]. Court of First Instance. |
A
doctor with several locum jobs was held to be employed. The case considered
the element of control and its relationship with responsibility.
|
|
| McManus
v Griffiths [1997]. High Court |
The
Inland Revenue successfully argued that despite the fact that the
worker provided no equipment or premises to perform the work he was
nonetheless self-employed. |
|
| Hall
(Inspector of Taxes) v Lorimer [1994]. Court of Appeal |
A
vision mixer in the television industry was held to be self-employed
even though he used the clients equipment and carried out his work
from their premises. |
|
| McMenamin
v Diggles [1991] High Court |
| A
barrister's clerk who was contracted to provide full clerking services
to a set of chambers who had previously employed him was held to
be self-employed. Although he took up the position as Head Clerk
he had a genuine business and the right to provide a substitute
for this position. |
|
| O'Kelly
v Trusthouse Forte Plc. [1983] Court of Appeal |
| A
wine waiter who worked often but not regularly at functions as and
when they occurred was held to be self-employed. The prominent focus
to the case was the consideration that the arrangement was on a
casual basis with no mutuality of obligation arising between the
parties. Little regard was given to the fact that the work was carried
out on the client's premises using their equipment. |
|
| Swan
Hellenic Ltd v Secretary of State [1983] High Court |
| The
Court found that even if subject to a considerable degree of control
a person can nonetheless be an independent contractor. In addition
to limiting the importance of the control test this case highlighted
the importance of the intention of the parties. |
|
| Massey
v Crown Life Insurance Co. [1978] Court of Appeal |
| Indicates
that if an evaluation of the overall effect of the relationship
is evenly balanced then the original intention of the parties may
decide the issue. In this case the parties both agreed initially
that it was a contract for services and he was held to be self-employed. |
|
| Ready
Mixed Concrete Ltd v. Minister of Pensions & NI (1968) |
| A
lorry driver had to wear a uniform and was subject to a significant
level of control. However the van driver did provide a substitute.
The driver was held to be self-employed because of this and the
other factors inconsistent with a contract of service. |
|
| Market
Investigations Ltd v Minister of Social Security [1968] Court
of First Instance decision. |
| The
case proposes that the question to be addressed is "is the
person who has engaged himself to perform these services performing
them as a person in business on his own accounts?" A positive
answer to this question could infer the existence of a contract
for services. |
|
| What
the case law indicates is that it is impossible to apply one single
test. What is important is the picture painted by the overall results
of the many tests applied. We have been unable to locate any definitive
case law that indicates payment by the hour or a requirement to
keep records of time amounts to a contract of employment. |
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