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<p>7 In relation to employment law:<br/>(a) Explain why it is important to distinguish between contracts of service and contracts for services.<br/>(4 marks)<br/>(b) State how the courts decide whether someone is an employee or is self-employed. (6 marks)<br/>(10 marks)</p><p>7 (a) Employees are people working under a contract of service. Those who work under a contract for services are independent<br/>contractors. They are not employees, but are self-employed. If you have a problem with your motor car you may take it to a<br/>large garage and have one of its mechanics look at the car. That mechanic would be an employee of the garage and would<br/>work under a contract of service with his employers. Your contract would not be with the mechanic but with his employer,<br/>the garage. Alternatively you might take the car to a one man garage and get that person to look at the car. In that situation<br/>the mechanic is self-employed and you and he are entering into a contract for services.<br/>It is essential to distinguish the two categories clearly, because important legal consequences follow from the placing of a<br/>person in one or other of the categories. For example, although employees are protected by various common law and statutory<br/>rights in relation to their employment, no such wide scale protection is offered to the self-employed. Also ultimate liability for<br/>breach of contract or liability in tort depends on the person’s status as an employee or self-employed. In the example above<br/>in the first instance the mechanic’s employers, the garage, are responsible for the consequence of his actions whilst acting in<br/>their employment; whereas in the second case, the mechanic alone is responsible for any liabilities that arise from his work.<br/>Given the importance of the distinction and the allocation of essential statutory rights that follow from it, it is perhaps<br/>somewhat surprising that no clear statutory definition of the distinction has been provided. Section 230 of the Employment<br/>Rights Act 1996, for example defines an employee as ‘an individual who has entered into or works under a contract of<br/>employment’ and states that a contract of employment ‘means a contract of service’.<br/>(b) Such circularity and lack of clarity means that it has been left to the courts to develop tests for distinguishing the employee<br/>from the self-employed.<br/>The first test to be applied by the courts was known as the control test. In using this test the key element is the degree of<br/>control exercised by one party over the other. The question to be determined is the degree to which the person who is using<br/>the other’s services actually controls, not only what they do, but how they do it. An example of the use of the test can be<br/>seen in Walker v Crystal Palace Football Club (1910) in which it was held that a professional football player was an employee<br/>of his club, on the ground that he was subject to control in relation to his training, discipline and method of payment. Thus<br/>to revert to the example given in part (a) the first mechanic, the employee, can be told what to do and how to do it, whereas<br/>the second, the self-employed mechanic, takes all such decisions as those in his own right.<br/>The control test looks back to and reflects previous master/servant relationships of employment, but its main shortcoming lay<br/>in its lack of any degree of subtlety. Highly skilled professionals, such as surgeons, by necessity have a high level of control<br/>over how they perform their day-to-day work, but the consequence of that, at least under the control test, was that they were<br/>deemed to be self-employed rather than employees, and patients who had suffered as a consequence of negligence would<br/>only be able to sue the doctor rather than the Health Authority which used their services. Such weakness in the control test<br/>led to the courts developing a more subtle test.<br/>The integration test shifted the emphasis from the degree of control exercised of an individual to the extent to which the<br/>individual was integrated into the business of their putative employer. An example of the application of the integration test<br/>may be seen in Whittaker v Minister of Pensions & National Insurance (1967) in which the court found that the degree to<br/>which a circus trapeze artist was required to do other general tasks in relation to the operation of the circus in which she<br/>appeared, indicated that she was an employee rather than self-employed. As a consequence she was entitled to claim<br/>compensation for injuries sustained in the course of her employment. However, even the integration test was not without<br/>problems, as some employers attempted to give the impression of using a self-employed workforce whilst effectively still<br/>controlling what that workforce did.<br/>The response on the parts of the courts was the development of the multiple, or economic reality, test. Rather than relying<br/>on one single factor, this test uses a more general assessment of the circumstances of any particular case in order to decide<br/>whether, or not, someone is an employee. In so deciding the courts will not be bound by how the parties themselves describe<br/>the relationship. Thus it is immaterial that the agreement between the parties states that someone is to be self-employed; if<br/>the indications are otherwise then the person will be recognised, and treated, as an employee (Market Investigations v<br/>Minister of Social Security (1969)).<br/>The economic reality test was first established in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National<br/>Insurance (1968) in which it was held that there were three conditions supporting the existence of a contract of employment:<br/>(i) the employee agrees to provide his own work and skill in return for a wage,<br/>(ii) the employee agrees, either expressly or impliedly, that he will be subject to a degree of control, exercisable by the<br/>employer,<br/>(iii) the other provisions of the contract are consistent with its being a contract of employment.<br/>In deciding whether or not there is a contract of employment the courts tend to focus on such issues as whether wages are<br/>paid regularly or by way of a single lump sum; whether the person receives holiday pay; and on who pays the due national<br/>insurance and income tax. However, there can be no definitive list of tests as the whole point of the multiple test is that it<br/>examines all aspects of the situation in order to reach a determination. For example in Nethermore (St Neots) v Gardiner &<br/>Taverna (1984), a group of home workers, i.e. people who carried out paid work in their own homes, were held to be<br/>employees on the grounds that they were subject to an irreducible minimum obligation to work for their employer.</p><p></p> tks :) LET ME SEE I don't know. ok ````````````````` KQNKQN 谢谢 see页:
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