Employment Law

Eighth edition

by Deborah Lockton

Update for Chapter 2

The Nature of the Relationship

This update was last revised in October 2012
2.2.3 Multiple Test
Please note that the Court of Appeal decision in Autoclenz v Belcher has been confirmed by the Supreme Court ([2011] UKSC 41)

After the discussion of Carmichael and Leese v National Power plc please insert:

Furthermore in Knight v Fairway and Kenwood Car Service [2012] UKEAT 0075-12-1007 the EAT held that a minicab driver was not an employee. His written terms provided that he could work as and when he wished, paid his own tax, national insurance and VAT and the tribunal held that there was no mutuality of obligation between the parties, despite the fact that the driver worked seven days a week. Note however the case of Haggarty v St Ives Plymouth Ltd [2008] All ER (D) 317 (May) where the Employment Appeal Tribunal held that an employment tribunal had not erred in deciding that a casual worker, who had been working for a company for ten years and who was employed for her skill, was an employee. The tribunal held that the practical commercial consequences of not providing work or not performing the work offered, could over a period of time, crystallise into mutuality of obligations. As such an employment contract had come into existence which covered the periods of time when she did not work, thus giving her continuity for an unfair dismissal claim. Likewise in Drake v Ipsos Mori UK Ltd [2012] UKEAT 0604-11-2507 the claimant worked on an assignment by assignment basis from February 2005 until September 2010. He argued that each contract was a contract of employment and thus he had continuity to claim unfair dismissal. The respondent claimed that he was a worker but not an employee. The EAT held that there was a contract and sufficient mutuality while the claimant was undertaking assignments to render them contracts of employment. The EAT was influenced by the fact that the respondent's handbook referred to them as contracts. Recent cases have also decided that a lap dancer is an employee (Quashie v Stringfellows Restaurants Ltd[2012] IRLR 536) and Methodist ministers  (President of the Methodist Conference v Preston [2011] EWCA Civ 1581

After the discussion of Community Dental Centres Ltd v Sultan-Darmon   please insert:

However that same definition has led to a decision that a GP who provided hair restoration services for a private clinic was a worker (The Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005), although  the Court of Appeal has held that an LLP member is not a worker, overturning the EAT. (Clyde & Co LLP v Van Winkelhoff [2012] EWCA Civ 1207