Tags

, , , , , , , , ,

Now that got your attention!

Employment Law is very dry. It is based around legislation that is equally dry and can be very confusing. According to a recent Which? survey 99% of people are unaware of  their rights surrounding redundancy and pay cuts (1) and people are, in general, unaware of their rights from everything from statutory holiday allowance, changes to pay and their rights surrounding dismissal.

One particular point which is so important, and affects these rights, is whether you are an employee or an independent contractor.

On the face of it this appears obvious ~ but in a world where working practices are ever-changing and it is becoming increasingly common for companies to use temporary workers, and bring in extra staff when workloads increase, this distinction is becoming more important.

The key reason this is important is because rights are dependent on circumstances and many employment rights do not apply to independent contractors.

One of these key rights is the right to take an employer to an Industrial Tribunal if the employee feels they have been unfairly dismissed.

This was the case for former lap dancer Nadine Quashie, who worked at the famous club “Stringfellows”.

Stringfellows sought to suggest that Nadine was an independent contractor, and based their argument on the fact that dancers had to pay their own taxes and National Insurance contributions.

http://www.guardian.co.uk/lifeandstyle/2012/jun/18/lap-dancer-nadine-quashie-stringfellows

In this case it was found that Ms Quashie was an employee and is therefore entitled to take Stringfellows to Tribunal.

This is an important case as it further defines the definition of an “employee” alongside other leading cases in this area.

The standard test used was determined in Ready Mixed Concrete v Ministry of Pensions and National Insurance 1968. The following criteria was put forward:

1. Has the potential employee agreed that s/he will provide her/his skills to the employer in exchange for wages or other remuneration?

2.  Has the potential employee agreed, expressly or impliedly, to be subject to the employer’s control?

3. If there is a contract (NB that you do not have to sign a contract to be employed; simply acting in a way consistent with being employed can bind you) are the other terms of the contract consistent with it being an employment contract?

All of these points are weighed up by the Court, but the point which often turns cases is #2, which looks at how much control the would-be employer has over the potential employee. In Ms Quashie’s case there would appear to be almost complete control over her working hours, what she has to do (including dancing naked in front of customers and being unable to say no to doing so).

This point was examined in Lane v Shire Roofing Ltd 1995 where the key question asked by the Court of Appeal was simply “whose business was it?” (In this case it was found that a builder who had been a “one man band” for many years but, in this case, was an employee because his workload was decided by the roofing company)

Further, independent contractors are liable for their own negligent acts, whereas employees are covered by the employer. (So long as they are negligent whilst carrying out their job ~ not “on a frolic of their own”, one of my favourite legal terms!)

These cases and illustrations show how important it is to know whether you are an employee or an independent contractor. When considering a position always be certain which one it is as your rights depend can on it.

 1 – http://careers.guardian.co.uk/careers-blog/do-you-know-your-employment-rights-philip-landau

Advertisements