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 benefits. The contracts were ‘nil hours’ contracts neither requiring nor entitling the worker to any particular hours of work.
Held: The appeal failed. The ET had been entitled to hold that the claimants were workers because they were working under contracts of employment within the meaning of regulation 2(1) of each of the NWMR and the WTR. Lord Clarke said: ‘the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part.’
Lord Clarke drew a distinction between certain principles ‘which apply to ordinary contracts and, in particular, to commercial contracts’, and ‘a body of case law in the context of employment contracts in which a different approach has been taken’
Lord Hope, Deputy President, Lord Walker, Lord Collins, Lord Clarke, Lord Wilson
[2011] UKSC 41, UKSC 2009/0198, [2011] 4 All ER 745, [2011] IRLR 820, [2011] ICR 1157, [2011] WLR(D) 255
Bailii, Bailii Summary, SC Summary, SC, WLRD, WLRD
National Minimum Wage Regulations 1999 (SI 1999/584), Working Time Regulations 1998 (SI 1998/1833), National Minimum Wage Act 1998 54(3)
England and Wales
Citing:
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. . .
Leave for CA – Autoclenz v Belcher and others CA 29-Sep-2008
Leave granted to appeal. . .
Appeal from – Autoclenz Ltd v Belcher and Others CA 13-Oct-2009
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 . .
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 – 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 – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
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 – 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 – 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 . .
Not preferred – Consistent Group Ltd v Kalwak and Another CA 18-Sep-2007
Renewed application for permission to appeal. . .
Cited – Consistent Group Ltd v Kalwak and others EAT 18-May-2007
EAT CONTRACT OF EMPLOYMENT – Definition of employee
Employment tribunal concluded in the particular circumstances of the case that an agency supplying workers to a third party had entered into contracts of . .
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 . .
Cited – Bankway Properties Ltd v Penfold-Dunsford and Another CA 24-Apr-2001
A grant of an assured tenancy included a clause under which the rent would be increased from pounds 4,680, to pounds 25,000 per year. It was expected that the tenant would be reliant upon Housing Benefit to pay the rent, and that Housing Benefit . .
Cited – Express and Echo Publications Limited v Tanton CA 11-Mar-1999
A contract for services, which required the contractor to provide an alternate worker in case of sickness, could not be a contract of employment. Such a clause could not be said to require the services to be provided personally.
Mr Tanton . .
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 by:
Cited – Tavistock and Summerhill School and Another v Richards and Others EAT 4-Dec-2013
EAT Redundancy : Definition – CONTRACT OF EMPLOYMENT – PRACTICE AND PROCEDURE – Perversity – Definition of redundancy; reason for dismissal at EDT. Determining the terms of a contract of employment. See Autoclenz . .
Cited – Uber Bv v Aslam and Others (Jurisdictional Points – Worker, Employee or Neither : Working Time Regulations) EAT 10-Nov-2017
Uber drivers are workers
JURISDICTIONAL POINTS – Worker, employee or neither
WORKING TIME REGULATIONS – Worker
‘Worker status’ – section 230(3)(b) Employment Rights Act 1996 (‘ERA’), regulation 36(1) Working Time Regulations 1998 (‘WTR’) and section 54(3) . .
Cited – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
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: 09 November 2021; Ref: scu.442222
