Car Valeters contracts misdescribed their Duties
The claimants worked cleaning cars for the appellants. They said that as workers they were entitled to holiday pay. The appellant said they were self-employed.
Held: The contract purported to give rights which were not genuine, and the employment judge was entitled to reach that conclusion. The contractors were expected to carry out the work personally, and therefore they were ‘workers’: ‘the task of the EJ when deciding whether an individual is a self-employed contractor, a limb (b) worker or an employee is to apply the following tests.
The starting point must be the statutory provision at section 230(3) and the first question is whether, under the contractual arrangements, the individual has ‘undertaken to perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any professional or business undertaking carried on by the individual’. Two separate issues arise. Is the individual contractually obliged to carry out the work or perform the services himself or does the contract permit him to provide someone else to perform them? If the individual is free to choose whether he will do the work himself or send someone else to do it, he is not under an obligation to do the work personally and will not be a limb (b) worker. (Nor will he be an employee or limb (a) worker because an obligation to perform work personally is also an essential requirement of a contract of employment.) But in addition to there being an obligation to perform the work personally, the work must not be done for the other party in the capacity of client or customer. ‘
Sedley, Smith, Aikens LJJ
[2009] EWCA Civ 1046, Times 16-Oct-2009, [2010] IRLR 70
Bailii
Employment Rights Act 1996 230(3)
England and Wales
Citing:
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – Protectacoat Firthglow Ltd v Szilagyi CA 20-Feb-2009
The court considered an employment contract said to be a sham.
Held: While a document which could be shown to be a sham designed to deceive others would be wholly disregarded in deciding what was the true relationship between the parties, it . .
Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
Cited – Lee Ting Sang v Chung Chi-Keung PC 8-Mar-1990
Deciding Whether person was an employee
(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal . .
Cited – Snook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
Cited – Consistent Group Ltd v Kalwak and others CA 29-Apr-2008
The court was asked whether the claimants were either employees or workers of the company. They had been engaged to wash cars under nil-hours contracts. . .
Cited – L’Estrange v F Graucob Limited CA 1934
The company’s order form contained a clause providing them with complete exemption from liability: ‘Any express or implied, condition, statement of warranty, statutory or otherwise is expressly excluded’.
Held: If a party signs a written . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Express and Echo Publications Ltd v Tanton EAT 30-Jan-1998
When considering whether an unfair dismissal claimant was an employee, the tribunal should first establish as a fact the terms of the agreement and then consider whether any of the terms were inherently inconsistent with the existence of a contract . .
Cited – Nethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
Leave – Autoclenz v Belcher and others CA 29-Sep-2008
Leave granted to appeal. . .
At EAT – Autoclenz Ltd v Belcher and others EAT 4-Jun-2008
EAT JURISDICTIONAL POINTS: Worker, employee or neither
Whether Claimants were (a) employees or (b) limb (b) workers. Answer no and yes. Appeal allowed in part. . .
Cited by:
Cited – Launahurst Ltd v Larner CA 30-Mar-2010
The company appealed against a finding that the respondent was its employee and not an independent contractor, and that its contract with him was a sham.
Held: The employer’s appeal succeeded. The EAT had erred: ‘there was plainly a procedural . .
Appeal from – Autoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.
Employment, Contract
Updated: 02 November 2021; Ref: scu.376003