Employment Status of Julia under the Employment Rights Act

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In the present case to identify the employment status of Julia, the case is to be decided in
the light of the Employment Rights Act (ERA) 19961. Employment is that of law that is
concerned with the relationship between an employer and his employee. The basis of such
relation is ordinary simple relation of contract where one party makes an offer and another party
accepts it. The two parties of any contractual relation are the employer and his employee.
Employer is the person who employs by giving an offer to the employee who accepts such offer
and is employed under the former. However lies difficulty to determine whether any person is an
employee or not. The person who is not an employee is called the independent contractor. The
laws in relation to the employment law are not applied to the independent contractor. If that
person is an employee, he is subjected to the provisions of the said Employment Rights Act. It is
a very significant and important legislation that is concerned with the unfair and illegal
dismissal, rights of notice, redundancy, and protection to wages. In this regard, some other acts
like the Trade Union and Labour Relations Act 19922, the Employment Relations act 19993 and
20044 deals with the law that controls the trade union, its relation with its own members and
employers, industrial acts and others.
According to the section 230 (1) of the ERA 5, an employee can be defined as an
individual person who has entered into the employment contract or works under the said contract
of employment. The contract of employment refers to the legal relation under contract of
apprenticeship or service , implied or express, and when express, in written document or in oral
1 The Employment Rights Act (ERA) 1996.
2 The Trade Union and Labour Relations Act 1992.
3 The Employment Relations act 1999.
4 The Employment Relations act 2004.
5 The Employment Rights Act, s.230(1).

terms. However there is no particular definition of the independent contractor under the ERA. An
employee is a person who is engaged in a contract of service. However, in this case, the terms of
her contract included a provision according to which she can send someone skilled and efficient
like her to work in place of her as a substitute. But for this prior approval is needed from the
hotel manager. At one such incident, Julia asked her friend Fred to work for her as she wants to
watch the premier of a film. But Deepak did not allow her stating that she is not allowed to do so.
This provision in the contract though indicates that Julia can be regarded as a contractor but it
had been implied as the manager himself denied this condition.
Moreover, it is very important to know whether a person is an employee or not such that
he can enjoy the rights, benefits and protection under the ERA 1996. An employee is usually
selected by the employer and he works full time for his employer under supervision of the
employer or against the salary or a wage. The employer has a right to deduct a tax from the
salary of the employee as per section 8 of the said act6. The employer is under a duty to provide
social security contribution in the form of wages to the employee and also to provide him a
pension scheme. In case of Julia, it can be said that she is an employee.
An employer under the act must give, within two months of the start of his employment,
the detailed information and particulars of the major terms of the contract. It is laid down in
section 1(2) of ERA 19967. It is also needed to distinguish between the employee and an
independent contractor as it will attract the effect of Inland Revenue principle, vicarious liability,
purpose of employment protection and the standard of duty of care. The most important reason
of determining whether a worker is an employee or not is that accordingly such worker can enjoy
6 The Employment Rights Act, s.8.
7 The Employment Rights Act, s.1(2).

the rights and remedies given under ERA 1996 an employee and such benefits are unavailable to
the independent contractor.
Apart from the contract of agreement of the service, there are various tests that have been
employed by the courts in order to determine whether an individual worker is an employee or an
individual contractor. The tests are the control test, integration test, multi factor test and the
mutuality obligation test.
The control test denotes the level of control of the employer on his employees. This type
of control arises from the separation and enforcing the jobs, time and work time. The test is
named so as it has been defined by Lordship Bramwell B in Yewens v Noake 8 in the following
words that an employee is put through his employee’s orders in regard to how a work is to be
performed by him. Moreover, he added that the control of the employer over his employee is not
only limited to the work which is to be executed but also includes the manner in which the work
is to be done. In the leading case of Walker vs. Crystal Palace Football Club 9, the question in
dispute was whether a footballer of a club was engaged under a contract of service. In this case,
it was viewed that the footballer as a skilled and experienced person was granted more freedom
to perform his work, that is, to play but yet he was deemed to be under the control and authority
of his coach.
In the given case, Julia has a uniform to wear. She worked from the hotel premises and
she asked under the observation of the hotel manager, Deepak. This attracts the provisions of the
control test as she works under the control of her manager and has no sole control of her work.
8 Yewens v Noake [1880] 6 QBD 530.
9Walker vs. Crystal Palace Football Club [1910] 1 KB 87.