The Employment Rights Act 1996, s.230 (1) (2) states that in order to be classed as an employee, there must be a contract of employment. As in Hewlett Packard Ltd v. O’Murphy [2001] EAT there must be contractual nexus between employee and employer. As the contract had implied and express terms, Mr Scott does satisfy to have a contract of employment.
The modern approach in establishing whether there is a contract of service is set out by MacKenna J in Ready Mixed Concrete (South East) Ltd. v Minister of Pensions and National Insurance [1968] 2 Q.B. 497. All of the tests in that case are satisfied here; in particular:
There is an obligation to provide his own skill and personal service. As in Yewens v Noakes (1881) 6 QBD 530, If the employer can tell the worker what to do and how to do it, he is likely to be an employee. The Claimant in this case does not have a substation clause in his contract so cannot substitute himself for another with the same skill. As in Macfarlane and another v Glasgow City Council [2001] IRLR 7 EAT and the Weight Watchers (UK) Ltd v Revenue and Customs Commissioners (2010) UKFTT 54 (TC), the right to delegate your work, is still controlled by the Respondent. The contract is one of service. The Claimant in this case cannot substitute someone to do his work for him. Thus, making him an employee.
The Respondent had sufficient control over the Claimant in order to class the Claimant as an ‘employee’. Motorola Ltd v (1) Davidson and (2) Melville Craig Group Ltd [2001] IRLR 4 indicated factors to consider in determining control. The case concluded that sufficient control does not necessarily matter that the control does not take the form of a direct legal or contractual right that the alleged employer has against the worker. It can suffice that as a matter of practicality the alleged employer exercises the relevant level of control. Mr Scott had been informed how to preform his work and when to have it completed by. This shows he is an employee.
The other provisions of the contract are consistent with it being a contract of service.
Lord Denning in Stevenson, Jordan & Harrison v MacDonald & Evans [1952] 1 TLR 101 stated that in order for there to be a contract of service, the work undertaken must have been integral to the business and not accessory to it. This position was affirmed in the Whittaker v Minister of Pensions and National Insurance [1967] 1 Q.B. 156. The Claimant is more than simply an accessory to the company as he has access to all of the company’s financial and business records so it is clear that he is employed as part of the business. Those with an employment status rarely provide their own tools or equipment thus, concluding he is an employee and his work is an integral part of the business. This post is sponsored by:
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