Defining What is an Employee
Definition of an Employee
- (for the purpose of Tribunal proceedings):
Under the Employment Law Act 1996, section 230, the term employee is defined as someone who has entered into or works under a contract of employment. It states further that a contract of employment can mean a 'contract of services or apprenticeship'. Such a contract can be either expressed or implied and if is expressed, it can be oral or in writing.
Unfortunately though the above definition is too vague in reality and does not really provide clarity. This is one reason why there is a voluminous amount of case law addressing the employment status of workers. Partially due to the large amount of case law and partially due to the ever-changing nature of work, there is no single test.
The starting point is the tripartite test which was established in the case of Ready Mixed Concrete (South East) v Minister of Pension and National Insurance [1968] 2 BQ 497:
1. The first criterion is that in consideration of a wage or other type of remuneration, the worker agrees to provide his skill in performing a service for his 'master'.
2. The second criterion which needs to be met is that the worker agrees to be under a certain degree of control which is consistent with an employer-employee relationship.
3. The third criterion is that the other provisions in the contract are consistent with it being an employment contract.
The Multiple Test –
The tribunal and courts usually apply the multiple test, which examines all aspects of the relationship between the parties in dispute and this was the approach taken in the Strinfellows
case (see Stringfellow Restaurants Ltd v Quashie).
In applying the test there are a number of factors which judges take into consideration in order to decide whether or not a contract of employment exists.
First of all, judges will consider if there were mutual obligations, in that the employer is obliged to provide work to the employee and the employee is likewise obliged to carry out the work they have been instructed to perform. The first factor is the most important factor to be considered and where no mutual obligations can be established, it is unlikely that a contract of employment exists.
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