Employment Law: Discrimination
Part A
Question:
“English courts consider substance and not form when determining employment status.”
Critically discuss this statement in the context of Employment Law, with particular (but not exclusive) reference to “sham” contracts.
Today, many would agree with this statement as an employment status has become a question of fact rather than a question of law. However, it was clear that the preferred view taken by the courts after Lord Griffiths’ famous comments in Lee Ting Sang v Chung Chi-Keung (1990) where he said, ‘Whether or not a person is employed under a contract of service is often said in the authorities to be a mixed question of fact and law. .‘
Even though everyone in the business world is familiar with contracts of employment, these contracts are not so straightforward, especially to rookies, as they may involve variations or may state misleading statuses making it ‘difficult to say wherein the differences lie’ for the courts to determine the status of a person in times of dispute. Furthermore, businesses are very aware of their responsibilities as employers and would much rather employ ‘workers’ than get into binding contracts of employment that increases their burdens.
In determining employment status, the courts have finally succeeded in forming the ‘multiple’ test that is basically a combination of tests the courts examined in previous cases. These include the ‘control’ test, the ‘integration’ test, and the ‘economic reality’ test. Each of these tests failed on its own to satisfy the wide range of cases the courts had to face, as there are so many different categories and types of workers and being an ‘employee’ is just one type.
A contract of employment has its benefits to the individual involved under it if he has the status of an employee. These benefits include statutory protection rights like National Insurance and tax contributions. Employers under a contract of employment may also have a greater duty towards employees
Question:
“English courts consider substance and not form when determining employment status.”
Critically discuss this statement in the context of Employment Law, with particular (but not exclusive) reference to “sham” contracts.
Today, many would agree with this statement as an employment status has become a question of fact rather than a question of law. However, it was clear that the preferred view taken by the courts after Lord Griffiths’ famous comments in Lee Ting Sang v Chung Chi-Keung (1990) where he said, ‘Whether or not a person is employed under a contract of service is often said in the authorities to be a mixed question of fact and law. .‘
Even though everyone in the business world is familiar with contracts of employment, these contracts are not so straightforward, especially to rookies, as they may involve variations or may state misleading statuses making it ‘difficult to say wherein the differences lie’ for the courts to determine the status of a person in times of dispute. Furthermore, businesses are very aware of their responsibilities as employers and would much rather employ ‘workers’ than get into binding contracts of employment that increases their burdens.
In determining employment status, the courts have finally succeeded in forming the ‘multiple’ test that is basically a combination of tests the courts examined in previous cases. These include the ‘control’ test, the ‘integration’ test, and the ‘economic reality’ test. Each of these tests failed on its own to satisfy the wide range of cases the courts had to face, as there are so many different categories and types of workers and being an ‘employee’ is just one type.
A contract of employment has its benefits to the individual involved under it if he has the status of an employee. These benefits include statutory protection rights like National Insurance and tax contributions. Employers under a contract of employment may also have a greater duty towards employees
References: Deakin and Morris (2010) ‘Labour Law’, Hart, Oxford: 5th edition Pitt (2011) ‘Employment Law’, Sweet and Maxwell, London: 8th edition Journals: Collins (2000) ‘Finding the right direction for the industrial jury’, 29 ILJ 288 Elias (1981) ‘Fairness in unfair dismissal: trends and tensions’, 10 ILJ 201 Reynolds and Palmer (2005) ‘Proving constructive dismissal: should one be concerned with what was in the employer’s mind?’, 34 ILJ 96 Stern, C. (2012) ‘Who’s Who?’, 162 NLJ 7527 -------------------------------------------- [ 3 ]. Stern (2012) [ 4 ]