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EMPLOYMENT LAW LUBS 3915 ASSESSED COURSEWORK ASSIGNMENT 1 : Gurdip According to the ERA s.230(1) an employee is an individual who enters into or works under an contract of employment. ERA s.230(2) states that the contract of employment means a contract of service...whether expressed or implied. It is this implied term that Gurdip (G) has grounds to appeal on. The main point here is whether or not G is an employee or self employed. The signing of the self-employment form does not necessarily mean G is selfemployed. It is the working arrangements rather than the form that is the critical factor (Tyne & Clyde Warehouse v Hamerton [1978]). Young & Woods v York [1980] also backs up the idea that the agreement can indeed be a written contract, rather than an oral one. This means that the signing of the form is irrelevant, as the self-employed label does not correctly represent the true legal relationship (from Massey v Crown life insurance [1978]). The fact that G paid his own National Insurance contribution and income tax is also irrelevant in terms of being self-employed (Ferguson v Dawson Partners [1976]). A decisive factor here is Castle Estate Agents Ltds (C) control, or the right to control G in respect of the work he was engaged to do (Gibb v United Steel Companies Ltd and Anor [1957]). In this case the right of control in this relationship lies with C, rather than G. C has control over Gs procedures, hours, pay, holidays and clients, a clear indication that G an employee, working for C. As a result, the entrepreneurial test suggests that G is not working for himself, but for C. This is support by the fact that G is unable to find substitutes for his position. Staffordshire Sentinel Newspapers Ltd v Potter [2004] stated this was a fundamental lack of control, thus here illustrating the control lies with the employer, C. G worked full-time in one of C offices, using Cs equipment. Being provided with the necessary facilities and
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working to the instructions given to him, is a significant factor in being classed an employee (Airfax Footwear Ltd v Cope [1978]). This whole case is very similar to that in Young & Woods v York [1980], in which the appeal was successful so there is no reason to believe any appeal here would be too. The fact that he is an employee has now been established G can qualify for paternity leave. An employee is entitled to paternity leave if they comply with the (PALR) Paternity and adoption Leave Regulations 2002 s.4 (1)(a) and (b). Presuming that G is the biological father, partner of the childs mother, G must have been continuously employed for a period of no less than 26 weeks ending with the week immediately preceding the 14th week before the expected week of the childs birth 40weeks in total - (PALR s.4(2)(a)). It is also necessary to provide this intention to leave to the employer PALR s.6(1). However, G has worked at C for 34 weeks so PALR s.4(2)(a) cannot be satisfied, unless the child is born prematurely (PALR s.4 (3)(a)). However if after the 8 months, G is simply notifying his employer of paternity leave for 14 weeks time, than he will indeed qualify for the paternity leave. Paternity leave can be granted but must be taken for either a week or 2 consecutive weeks PALR s.9(1). The leave must be taken within 56 days of the expected week of childbirth or the actual birth PALR s.25(2)(a) and G would be paid statutory paternity pay. William William(W) doesnt have strong grounds for an appeal on the change in his contractual terms, as he has agreed to them and is being paid in return for his services. However, the employer must supply a written statement of the changes in the contract. If not, this will result in an employment tribunal drawing adverse presumptions against them, should the contractual terms be disputed. Under ERA s. 4 (1), Therefore C must give W a written statement containing particulars of the change - the hours and pay. However the
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rolled up holiday pay is not permissible, as it is a breach of the Working Time Derivative (Robinson-Steele v PD Retail Services). As a result W is able to ask for a contract variation back to normal annual holiday pay and claim for any compensation if required. By accepting the terms of the contract, W cannot claim against exceeding the maximum of a 48 hour week (WTR s.4(1) if relevant. As W is aggrieved, he should inform C by ways of a grievance letter to C of his situation. C has a duty of care regarding their employees and so should help resolve any issues restricting W from working correctly. If W remains aggrieved with the employers handling of the situation, legal action can be taken. Emily Emily(E) cannot currently claim sex discrimination for the differences in pay between her and William. The hours that employee works is by itself not against the Equal Pay Act (Dugdale V Kraft Foods Ltd [1976]). The difference in pay is due to the hours worked, rather than the employees sex and so is a genuine material factor (Kerr v Lister & Co Ltd [1977]). She is however, under the Flexible Working Regulations Act 2002 (FWTR), entitled to make an application to her employer for her contract to be changed in order to care for her child. This is providing that she has worked continuously for a period of at least 26 weeks (FWTR S.3(1)(a)) and the child has not reached the prescribed age of 16 (FWTR s.3A). E must prove how she meets the conditions as to the relationship mentioned in ERA s.80F(1)(b). The employer shall deal with the application seriously and can only refuse the application on the grounds of ERA s.80G(1)(b). If C accepts the proposal then they will inform E with the change to her contract and when the changes will commence. If they do not accept, then the matter can be taken to an employment tribunal, as an offence of indirect sex

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discrimination.

Statutes The Paternity and Adoption Leave Regulations 2002 The Employment Rights Act 1996 The Working Time Regulations 1998 Flexible Working Regulations 2002 Primary Sources Tyne & Clyde Warehouse v Hamerton [1978] LCJL 661 Young & Woods v York [1980] IRLR 201 Airfax Footwear Ltd v Cope [1978] ICR 1210 Staffordshire Sentinel Newspapers Ltd v Potter [2004] IRLR 752 Ferguson v Dawson Partners [1976] 1 WLR 1220 Massey v Crown life insurance [1978] 1 WLR 676 Gibb v United Steel Companies Ltd and Anor [1957] 2 All ER 110 Kerr v Lister & Co Ltd [1977] IRLR 259 Robinson-Steele v PD Retail Services
Dugdale V Kraft Foods Ltd [1976] ICR 48 112

Secondary sources Selwyn N M Selwyn's Law of Employment 15/e Oxford University Press 2008 www.compactlaw.co.uk free_legal_information/employment_law/empf50.html http://www.esinet.norfolk.gov.uk/cadmin/misheet/display04.asp?id=1214