Employment LC 1: Seminar questions: 1. What are the key tests for (i) an 'employee' and a 'worker' under s.230 ERA and (ii) 'employment' under the EqA 2010? What are the similarities and differences between each test? Under s.230 ERA and 'employee' means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. A 'worker' means an individual who has entered into or works under a contract of employment, or any other contract, whether express of implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party .... Three elements: 1. Has to be binding contract; 2. Party has to be providing work to other party under contract; 3. Under contract, party has to undertake to do any of the work personally; 4. If they are doing the work other than a business, they are in limb b; If you are doing the work as a business undertaking, you are not under worker. Under the EqA 2010, 'employment' means employment under a contract of employment, a contract of apprenticeship or a contract personally to do work. Also crown employment, employment as a house of commons staff/house of lords. Employees - limb b workers - you can be self-employed and be within limb b worker definition. Equality act: Employment under a contract personally to do work. Looks wide compared to limb b. Another sub category- in collective rights statute TULRCA 1992. Show examiner that you understand the differences between the intermediate categories of worker (slightly different definitions in statutes but Van Winklehoff says treat them aligned. Royal category is employee since they get unfair dismissal protection. There is continuity threshold of 2 years continuous service. 2. What is meant by 'mutuality of obligation'? Should this be regarded as an indication of 'employee' status?
As Stephenson LJ put it in Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612, 623, "There must ... be an irreducible minimum of obligation on each side to create a contract of service". 38. Accordingly, I find that the claimants entered into contracts under which they provided personal service, where there were mutual obligations, namely the provision of work in return for money, that these obligations placed the contracts within the employment field and that the degree of control exercised by the respondent in the way that those contracts were performed placed them in the category of contracts of employment." Obligation on employer to continue providing work and obligation on employee to accept work when offered. Ongoing until contract terminated. Way of expressing the fact that this is an ongoing relationship where parties are committed to each other. No tough with zero-hour contracts. Now they may say with casual work arrangements, no mutuality of obligation. Rarely a problem nowadays as mutuality of obligation often for the hours stated. Remember analogy of bar work for 7 hours in seminar. Prater v