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Several tests have been developed to identify and categorise different types of workers.

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Introduction

Several tests have been developed to identify and categorise different types of workers. The basic division for our purposes is between those who are employed persons and those who are self employed, and the distinction between these categories is that the employed person works under a contract of service, while the self-employed person works under a contract for services1. An important criterion for determining whether the relationship between employer and employee exists is the extent to which a person is under the direction and control of the other party with regard to the manner in which the work is done.2 It would be improper to use this test, where professional are involved, as it is likely that the employee will be qualified in a particular field, thus making direct control of the employee difficult. For example does a football manager have the right to control how his players play on the pitch, as questioned in Walker v Crystal Palace Football Club (1909). Despite this difficulty, a refinement to this test, where the "right to control" has been used a determinant factor.3 It is clear from these cases the higher the degree of control exercisable by the employer, the more likely that ...read more.

Middle

This obligation was a determining factor. Therefore the EAT refused to alter the tribunals decision. This case may be contrasted with Carmichael v National Power plc, where there was no mutuality of obligations. A more problematic area of law for the courts to decide upon has been in the form of atypical workers, such as casual workers, agency workers and home workers. The groups often find it difficult to establish a contract of service and the rights, which accrue under this label. Some workers are employed under a casual basis, or on short-term periodic contracts.. As previously discussed, implied into the contract of employment is mutuality of obligations, therefore an obligation to provide and accept work, without which a contract of employment cannot exist. There have been attempts to pay national insurance and tax as an employee would for the actual periods worked so that they may be classed as employees, but to no avail.10 In particular, where the terms which casual work is offered/accepted expressly negate mutuality of obligations, there can be no implied obligation or overarching contract. An attempt to treat such workers under a 'global contract' has been put forward but with limited success. ...read more.

Conclusion

This lack of mutual obligation goes against Lisa. As described in O'Kelly v Trust House Forte plc, the lack of mutual obligation, and more importantly no promise to provide work by the employer. Karim or Jordan controls Lisa, and she is integral to the business. She cannot profit other than by wages. There mutuality of obligations is vital. One avenue could be that Lisa could try, is course of dealings. As stated, although the work was casual, she did indeed accept the work as it was offered. Therefore a mutual obligation could be implied, and therefore provide Lisa with a remedy.16 1 Stevenson, Jordan & Harrison [1952] 2 Yewens v Noakes 3 Gibb v United Steel Companies Ltd 4 Whittaker v MPNI 5 Beloff v Pressdram 6 MacFarlane v Glasgow City Council 7 Market Investigations Ltd v Minister of Social Security 8 Lane v Shire Roofing Co (Oxford) 9 Tyne and Clyde Warehouses Ltd v Hamerton 10 Stevedoring & Haulage Services Ltd v Fuller 11 Clark v Oxfordshire Health Authority 12 Hellyer Bros Ltd v McLeod 13 Motorola Ltd v Davidson 14 Hewlett Packard v O'Murphy 15 Glasgow v Independent Printing Co 16 Nethermere (St. Neot) Ltd v Taverna and Gardiner ...read more.

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