Essay question

‘The nature of the common law tests used to establish employment status has enabled employers effectively to prevent many workers from accessing protective employment rights. This is likely to be exacerbated in the current economic climate. As a consequence, it is necessary for parliamentary action to remedy this significant deficiency in industrial relations.’

Assess this statement and critically comment on the limitations of the common law tests.

Answer:

•   The Employment Rights Act 1996 s. 230(1) identifies an employee as ‘an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.’  This definition is deliberately broad and actually providing a statutory definition (being the highest form of law) may actually work against the protection of workers. As such, the common law provides assistance.

•   No one test is conclusive and the courts and tribunals make the decision of the employment status based on mixed law and fact – the employment laws established from statute and the courts (through precedent) and the individual facts of the case.

•   The tests include - control test; right to control; integration / organization test; the mixed test and whether the employee is in business on their own account.

•   Employment law can never be taken out of the social and economic context of the time. This has resulted in decisions being made that may have appeared unlikely (on analysis of the facts) or even unfair. Include examples such as Lane v The Shire Roofing Company, O'Kelly v Trusthouse Forte and Nethermere v Gardiner.

Employers have the ability to exploit the vulnerabilities of employment status, but the flexibility of the common law is of greater advantage than a strict statutory definition which employment lawyers would be able to circumvent.