Chapter 1 Outline answer to essay question

You should point out that the first issue to consider is whether George was an employee when he worked at the factory. All the circumstances need to be taken into account, including any documentation supplied to him. In terms of control, you should state that it would be relevant to know the following. Was he required to produce a minimum number of shoes? What degree of supervision was he subject to? Draw to the examiner’s attention that you do not know whether tax and National Insurance were deducted during this period.
You should make clear that people who work from home may well be employees.
In terms of the declared intention of the parties, you might infer that this was designed to alter his status rather than confirm it. In which case it will be of no value if the new relationship is a sham. You should refer to Autoclenz Ltd v Belcher [2011] (‘The intention of the parties’). However, if there is doubt the declaration can be used to resolve ambiguity. You should refer to Massey v Crown Life Assurance [1978] (‘The intention of the parties’).
You should suggest that it looks as though George was and is still an employee. There appears to be a continuing mutual obligation on the employer’s part to supply materials and on George’s part to produce shoes. You should refer to Carmichael v National Power plc [2000] (‘Mutuality of obligation’).
You should state that the failure to make deductions is not conclusive of his status, although his contract will be tainted with illegality if he participates in a deliberate fraud on HMRC. (On illegality, see chapter 2.)
For more examination material you should read Questions and Answers Employment Law 2014 and 2015 by Richard Benny, Michael Jefferson, and Malcolm Sargeant, published by Oxford University Press.