Employment status
Dinu Suntook, Cane Pickersgill and Poppy Fildes are all associates at Addleshaw Goddard. They round up the latest rulings.
The Supreme Court has affirmed that, where a party asserts that a written term does not reflect the reality of the agreement, tribunals and courts may look outside the terms to determine the true nature of the agreement.
In X v Mid Sussex Citizens’ Advice Bureau and others [2011] EWCA Civ 28 CA, the Court of Appeal held that a volunteer at a Citizens’ Advice Bureau was not an employee for the purposes of the Disability Discrimination Act 1995 and could not therefore claim disability discrimination when she was asked to stop her voluntary work.
In Tilson v Alstom Transport [2011] IRLR 169 CA, the Court of Appeal held that there was no basis for the employment tribunal to imply a contract of employment between an agency worker and the end user. The fact that the claimant had rejected offers of just such a permanent contract on more than one occasion was a powerful factor pointing away from an employment relationship.
The Employment Appeal Tribunal has confirmed that a paid volunteer is not an employee for the purposes of the Disability Discrimination Act 1995 where there is no mutuality of obligation between the parties.
Niki Walker, managing associate at Addleshaw Goddard, details the latest rulings.
In Muschett v HM Prison Service [2010] EWCA Civ 25 CA, the Court of Appeal held that an agency worker had neither a contract of employment nor a contract with the end user personally to carry out work. Accordingly, he could not bring complaints of unfair or wrongful dismissal, or of unlawful discrimination, against the end user.
In Autoclenz Ltd v Belcher and others [2010] IRLR 70 CA, the Court of Appeal held that a group of car valeters were employees, despite the fact that their written contracts with the valeting company stated that they were independent contractors, and contained clauses allowing "substitution of labour" and the "right to refuse work".
In Protectacoat Firthglow Ltd v Szilagyi [2009] IRLR 365 CA, the Court of Appeal held that a purported contract for services - entered into by the worker as a prerequisite for being given work - was a sham, because it did not represent the parties' true intentions and expectations. The individual was an employee, not an independent contractor.
The Court of Appeal had held that there is no reason in principle why a director and controlling shareholder cannot also be an employee.
Employment law cases: HR and legal information and guidance relating to employment status.