Before It Ends

CASE 3- MR JENKINS

EMPLOYMENT RELATIONSHIP

IN ORDER TO CLAIM NATIONAL MINIMUM WAGE

Facts:

• Use own van, although free company car wash
• Own insurance, ancillary expenses
• No uniform
• Limited discretion on working day
• Able to have substitute
• No minimum holiday but able to give 1 week notice
• Delivery to Jenkins house
• No control over parcel
• Supervision from Mr. Shipway + manual settings
• Own tax, insurance, revenue and custom
• Paid according to the number and distance of dispatch
• No guarantee on work, invoice
• self-employed

Advice:

In James v Redcats

They are sharing similar facts. Therefore, it is reasonable that the decision should reach to the same as well.

1. Status

Original tribunal was found that she was self-employed and not a worker. The court placed significance on the fact that there was no mutuality of obligation.

Yet EAT found in her favour and provided guidance:

• "dominant purpose' of the contractual relationship
• Absence of mutuality obligation when working is not being performed is little significance in determining the status of relationship when a person is actually at work. 

The second ET, tribunal ruled that: 

" to be regard as a worker and also as a home worker within the provision of NMW Act."

A personal service: she was held to be a worker within the definition when she was actually performing work for them. It did not matter that they may not have been contract with the company when she was not delivering parcel.

# If Mrs James could be regard as providing personal service to the company and therefore allowing her to have a status as a worker, assumably that Mr Jenkins ought to be able too.

2. In Autoclenz v Belcher,

Supreme Court held: the reality of situation trumped the written contract. Although there was a substitution clause, there were expected to do their work personally.

3. Contract of Employment

Under s.230(1) ERA 1996, employee means 'an individual who entered or works under a contract of employment, whether express or implied.

5. The Control Test

Performing Rights v Mitchell,

McCardie "The final test, of there is to be final test, and certainly the test to be generally applied, lies in the nature and degree of detailed control over the person alleged to be a servant."

# The question arise of the employer control not only when the job is done but how? Control does not need to be directly. 

6. Organisational & Integration Test

Stevenson, Jordan & Harrison v MacDonald

Denning LJ: "under a contract of service, a man is employed as part of the business and his work done as integral part of the business but under contract for employment, although done for the business, is not integrated into but only accessory to it."

7. Multiple Tests

This test depends on the job and the skill of employer and employee. 

I. Control: 

Ready Mixed Concrete v MPNI, McKenna J established three condition on relationship:

     a. employee agrees to provide skill in consideration of wage

     b. an element control by the employer 

     c. nothing in the contract was inconsistent with a employment contract.

The problem of delegation/substitution has been arised:

MacFarlane v Glasgow CC, claimant was still found to be an employer even though he can be substitude by other from the list approved by the CC

II. Economic Reality Test 

Ferguson v John Dawson,

It was held that the status was not conclusive. In reality he was an employee.

III. The unfettered right

Jorza v Premier Groundwork,

It was held in EAT: where a party has an unfettered right for any reason not to personally perform the contractual obligations under the contract but can delegate someone else, he cannot be a 'worker' even though he was personally performing the contractual obligations. The position will be different if the right not to perform the obligation depend on some other event such as 'unable' to perform. 

Yorkshire v Parker,

Held: "the right or obligation to employ a substitute will not necessary mean that there is no obligation unless the substitute right was unfettered.

IV. Mutuality Obligations

Airfix v Cope,

It held that home workers were employees because work was provided regularly although employee decided on the way the job done, the time and place of performance.

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Decision approved in Nathermere v Tarvena,

Although no obligation to provide work there were mutuality obligations in reality over a long period, which was the essence of employment relationship.

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Contrast:

O'Kelly v Trusthouse,

She was self-employed since there is no obligation to provide work and no obligation to perform service.

Parade Park Hotel v CHMRC

Found no mutuality of obligation, where he was self-employed

Quashie v Stringfellow

Claimant was held to be an employee since she provide the work personally under the management control and there was sufficient mutuality.

Charmicheal v National Power Plc,

No obligation to provide work and no obligation to provide service.

V. Continuity

Curr v M&S

Held: "Possibility to re-employment" breaks the continuity

The problem here is what is the situation when the worker has a break during which time the employer does not give such worker any work. Does it means that theres no mutuality of obligations?

The answer was NO

Bly v Cochrane

EAT concluded that contract did not confer upon him the status of worker even when the work was performed. No mutuality between them.

#This suggesting that those person who perform work from time to time without mutuality obligation in the breaks is not a worker as defined in the legislation even he is actually working.

In James v Greenwich (2007),

It has been held that there is a need merely to show "some" duty to offer work and "some duty" to do it. However, if there is no such duty of any kind then there is no contract of employment. 

Another fairly recent case, Community Dental Centres Ltd v Sultan Darmon

ET held that: he was not an employee under 230 ERA 1996 because:

• insufficient mutuality obligation
• insufficient control over the claimant
• inconsistent with an employee relationship e.g. self insured
• contract expressly excluded the idea of employment

Howeverm ET held that he was a worker under 230 ERA 1996:

• substitution provision were implemented occasionally
• obligation to provide service personally or to personally ensure dental work
• He was more likely than not being a worker.

EAT reversed the decision, finding that claimant was worker under the s230. The trail judges found that the mutuality was inconsistence. The unfettered right to appoint a substitute under any circumstances could not be a worker.

Weighing the decisions.