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 was not only in such a case that its contents ceased to be definitive. If the evidence established that the true relationship had been, and had been intended to be, different from what was described in the document, it was that relationship and not the document or the document alone which defined the contract. In a case involving a written contract, the tribunal would ordinarily regard the documents as the starting point and ask itself what legal rights and obligations the written agreement created. But it might then have to ask whether the parties had ever realistically intended or envisaged that its terms, particularly the essential terms (ie those central to the nature of the relationship, viz mutuality of obligation, and the obligation of personal performance of the work), would be carried out as written.
‘In a case involving a written contract, the tribunal will ordinarily regard the documents as the starting point and will ask itself what legal rights and obligations the written agreement creates. But it may then have to ask whether the parties ever realistically intended or envisaged that its terms, particularly the essential terms, would be carried out as written. By the essential terms, I mean those terms which are central to the nature of the relationship, namely mutuality of obligation: Carmichael v National Power [2000] IRLR 43 and the obligation of personal performance of the work.’
Smith LJ
[2009] EWCA Civ 98, [2009] IRLR 365, [2009] ICR 835
Bailii
England and Wales
Citing:
Appeal from – Protectacoat Firthglow Ltd v Szilagyi EAT 28-Apr-2008
EAT Jurisdictional Points:
Worker, employee or neither
Extension of time: reasonably practicable
The Employment Tribunal held a pre-hearing review in which it found that the claimant for unfair . .
Cited by:
Cited – Launahurst Ltd v Larner EAT 18-Aug-2009
EAT JURISDICTIONAL POINTS: Worker, employee or neither
For 13 years the Claimant worked installing double glazing for the Respondent. In 2004 he signed a ‘contract supply agreement’ though matters continued . .
Cited – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Employment, Contract
Updated: 20 December 2021; Ref: scu.301655