• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Employee Status - In order for Carl to be able to bring a claim of unfair dismissal against Baker-Rags Ltd he has to establish both that he is an employee of Baker-Rags and that he was unfairly dismissed.

Extracts from this document...


Employment Law Michaelmas Formative Essay In order for Carl to be able to bring a claim of unfair dismissal against Baker-Rags Ltd he has to establish both that he is an employee of Baker-Rags and that he was unfairly dismissed. Carl as an employee: The legal framework: There are only two pertinent pieces of legislation that attempts to define what an employee is, and they are inadequate at giving a clear definition - the Employment Rights Act 19961 and the Labour Relations (Consolidation) Act 19922 - both stating that an employee is "an individual who has entered into or works under...a contract of employment. Due to the ambiguity inherent in this statement it is prudent to look at the common law tests for an employee. Simon Deakin identifies four tests of varying importance used to ascertain whether someone is an employee: control, integration, economic reality and mutuality of obligations.3 * Control: if the employer can control what job the person is to do, and the manner in which he does it, then there is indication of an employment relationship.4 * Integration: if a person is included in a company's disciplinary/benefits system, then this is also indication that they may be an employee * Economic Reality: if an employee's taxes are taken care of by the employing company, or the person is involved in the PAYE scheme by virtue of working for the employing company then, again, this is indicative of employment. ...read more.


* Mutuality of Obligations: There is a prima facie issue with establishing mutuality of obligations because Carl's service contract only runs for certain times during the year, however, for the purpose of demonstrating Carl is an employee at the point his contract is terminated then all that needs to be shown is that there was mutuality of obligations when the contract was terminated - as a service contract was in place there was an obligation for Carl to perform the work outlined in the contract, and there was an obligation for Baker - Rags to ensure that work was there. Other tests of employment status: * Control: There is a clear level of control over Carl, as not only is he being told what time he has to work and what work to do, but he is being instructed in how to perform the work - being set time limits on when the work is to be completed for example. * Integration: the warnings and disciplining of Carl by Baker-Rags demonstrates that there is at least a certain level of integration due to his being subject to the disciplinary system. * Economic Reality: Although Carl is paid by Baker-Rags, they do not administer his tax and National Insurance contributions, which would suggest a non employee. His situation with regards to uniform and equipment would also suggest a non employee were it not for fact that they have started purchasing uniform for him. ...read more.


months at a time, so it would be argued by Baker-Rags that he does not qualify by virtue of s.108, however a continuity of employment may be found that demonstrates that Carl has been employed for three years, since he worked for Baker - Rags through Data Analysts Ltd. In Cornwall CC v Prater15 it was established that the use of s.212 of the ERA could be used to unify seemingly separate employment contracts into a single continuous employment as long as each individual service contract could be shown to be an employment contract. There is mutuality of obligations for each ten month service contract, so it is submitted that they are employment contracts, and the two month gaps are merely a temporary cessation of work,16 therefore Carl was indeed employed for over one year when his contract was terminated. The reason: Although it is for the employer to state what the reason was for the dismissal it is assumed that it was because of the economic downturn. Fair grounds: The fair grounds for dismissal are found under s.98 of the ERA 1996. An economic downturn is not one of the listed fair reasons for dismissal, however it may be argued by Baker - Rags that it was some other substantial reason,17 the economic downturn, however that doesn't justify the dismissal of Carl holding the position he held. It is therefore submitted that Carl has grounds for a claim of unfair dismissal. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Employment Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Employment Law essays

  1. Marked by a teacher

    Critically assess how effective employment law is as a means of altering social attitudes.

    4 star(s)

    in ensuring future equality between men and women".62 As discussed, affirmative action does have problems and acceptance of such a scheme will inevitably prove difficult, as any attempt to alter the status in society is met with hostility. Especially where it is the status quo who, are the ones likely to loose out from such a scheme.

  2. employment law

    And if she regains work, there will be no break in continuity of employment. If where Gillian's employer offers her a suitable alternative employment and if she refuses it, she will lose any rights to claim a redundancy payment arising out of the dismissal for redundancy.

  1. Jane encountered problems pertaining to contractual work relationship issues with Total Mechanic Management Services ...

    Zujis v Wirth Brothers Pty Ltd (1955) 93 CLR 539, states that the proprietor need not exercise the actual control of the employees, rather they have the right to exercise some form of control. TMMS did not directly control how Jane performs her mechanic work, but she was subjected to random checks by TMMS for quality control purposes, which establishes the right of control.

  2. Free essay

    Labour Law - Unfair dismissal

    This in turn depends on whether there is a normal retirement age in the contract of employment. If the employer retires the employee before the age of 65 it will be classed as unfair dismissal, unless the he can objectively justify his actions, or there is a normal retirement age.

  1. Tess' situation is one that will involve various aspects of employment law. The issues ...

    [therefore] the triangular nature of the arrangement may have the effect that the worker fails to qualify as having a contract of employment ... of any kind.'1 Tess' contract has a clause stating she is not an employee of either Dolby Hospital or the agency, however such labels tend to be ignored by the courts (Ferguson2)

  2. Agency Workers

    agency and the employer, it is a divided agreement between the two. This is covered under The Management of The Health & Safety at Work Regulations 1999. This regulation basically makes it more explicit regards what is expected of employers in terms of managing Health and Safety.

  1. Employmenyt law

    resulted in a number of barriers to employee protection and these problems manifested themselves most clearly in cases that involved contracting out. The received wisdom of the late 1970's and early 1980's was generally that a franchise, for example, was not an undertaking or a business for the purposes of

  2. The measure of success of any law of the termination of employment is the ...

    Although the tribunal's failure to ask the applicant whether he wishes to be reinstated or re-engaged does not render its decision on remedies a nullity, at least where the applicant was legally represented (Cowley v Manson Timber Ltd (1995)4), an appeal tribunal should be very ready to remit a case

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work