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In writing this paper I shall be critically analysing the numerous tests that have been established by the courts throughout the years in determining whether an employee is working under a contract of employment, as stated in the Employment Rights Act 1996 s230 it states that an employee is \u201c\u2026an individual who has entered into or works under\u2026a contract of employment”. It is not difficult to prove workers that work under a contract of employment and these can be written into a contract, however, this is not always the case and, on occasions the contract can be a verbal agreement, and so the courts have had to set up various tests in order to ascertain whether someone is working under a contract. There have been common law tests in place from as early as 1880 which have obviously been developed to some extent to take on board varying degrees of changes in employment over the last century, I shall be discussing all the tests applicable and discussing the various cases associated with each and draw a conclusion detailing how effective each test may be.<\/p>\n
The definition contained in the Employment Rights Act 1996 refers to those who work under contracts of employment, which are in turn defined as being contracts of service or apprenticeships. This is not helpful in identifying whether a contract of employment actually exists, so the common law must be considered\u00a0[1<\/a>]<\/span>\u00a0this has been used done using various tests as briefly discussed above, it is important to define if a worker is working under a contract of service or a contract for services as those working under a contract of service are entitled to varying statutory rights from their employer this could be in forms of the National Minimum Wage, working time and equal pay and many other statutory provisions, and as this as a contract is not always in writing it is left for the courts to decide the outcome, the tests will now be discussed that are frequently used by the courts to decide if someone is working under a contract of service.<\/p>\n \u201cIn the nineteenth century the relationship was viewed as existing between the \u2018master (the provider of payment) and the \u2018servant\u2019 (the provider of labour). Much of the work provided was unskilled and the relevant test related to degrees of control exerted over the servant in the fulfilment of his duties by the master. The greater the degree of control, the more likely that the relationship was one of employment. The control test was expounded by Bramwell, L.J, in Yewens v Noakes 1880 6 QBD 530 this case involved a worker and his employment status for the purposes of the Workmen\u2019s Compensation Act it was stated by the judge thus, a \u2018servant is a person subject to the command of his master as to the manner in which he shall do his work”\u00a0[2<\/a>]<\/span>\u00a0. It is said that the greater degree of control exercised by the employer this will represent a contract of service<\/p>\n The control test is very much outdated with certain statements that could not guarantee a contract exists, there are numerous examples taken when an employee is more qualified than that of his employers, for example a lawyer in the legal department of an office, the managing director may not know anything about the law so he could not be told what to do and how to do it, or maybe a more complex matter such as a brain surgeon in a hospital he may be the only person in the hospital that knows how to carry out the required element but he may still have a contract of service but under the control test if it was still in use today these workers would not and instead have a contract for services. Another problem that could arise with the control test is if a worker was sent to another location to work with a different employer and his employer has no direct control, the question arises who would be responsible for the employee?, it would seem that the employer would still be responsible but this is in contradictory terms to the control test a good example can be seen in Whittaker v Minister of Pensions and National Insurance 1966 3 All ER 531 where a trapeze artist fell and broke her wrist when carrying out her act, it was held that the trapeze artist was an integral part of the business and was entitled to claim injuries benefit. The judge stated in his judgement:<\/p>\n \u201c\u2026persons possessed of a high degree of professional skill and expertise\u2026may nevertheless by employed\u2026under contracts of service, notwithstanding that their employers can\u2026exercise extremely little, if any, control, over the way in which the skill is used”<\/p>\n This test was established as an alternative to the control test. In Stevenson, Jordan and Harrison Ltd v MacDonald and Evans 1952 1 TLR 101, Denning L.J suggested a more up to date test. \u2018Under a contract of service he said \u2018a man is employed as part of the business and his work is done as an integral part of the businesses. This \u2018organisational test\u2019 has certain advantages, particularly in relation to employees who are \u2018integrated\u2019 into an enterprise , e.g. doctors, nurses etc, in respect of whom the control test is inappropriate.\u00a0[3<\/a>]<\/span>\u00a0This can be seen again in the case of Whittaker v Minister of Pensions and National Insurance 1966 3 All ER 531 This test is not without its problems also for example take a doctor that works in various hospitals they may be an integral part of the business but only working as a contractor so this test would also be inappropriate for those type of workers.<\/p>\n \u201cThe move towards new forms of work such as tele-working and homeworking in some employment sectors, which may be difficult to categorise in terms of the worker\u2019s degree of \u2018integration\u2019, also illustrates the shortcomings in the application of the integration test.”\u00a0[4<\/a>]<\/span><\/p>\n The problems arising from the application of a single factor in determining employment status are illustrated by the tests outlined above, which relied on the elements of control and integration respectively. However, although such factors are not particularly useful if applied in isolation, when combined with other factors they become good indicators of the real nature of the relationship under scrutiny. This multi-factor approach has become known as the \u2018multiple test\u2019 and it has been used by<\/p>\nThe Control Test<\/h2>\n
The Organisational or Integration Test<\/h2>\n
The Multi-factored Test<\/h2>\n