Employment Law
Table of Contents
Topic 1 (lectures 2-3): The Employment Relationship..........................................................1
Topic 2: The terms of the employment contract................................................................21
Topic 3: Work life balance................................................................................................39
Topic 4: Employment discrimination.................................................................................60
Lecture 10:.......................................................................................................................68
Lecture 11: Grounds of Discrimination..............................................................................72
Lecture 12: Deep Dive on the Protected Characteristics of Race and Religion or Belief......75
Topic 5: Termination of Employment................................................................................86
Topic 1 (lectures 2-3): The Employment Relationship
who counts as an ‘employee’ and why it is important in the UK.
READING
Essential Reading
Ian Smith & Aaron Baker Employment Law 15th edn (Oxford University Press 2021), Chapter 2, pp 40-
53, 55-71, 85-86
Bob Hepple ‘Restructuring Employment Rights’ (1986) 15 Industrial Law Journal 69-75 and Alan Bogg
‘For Whom the Bell Tolls: “Contract” in the Gig Economy’ Oxford Human Rights Hub (7 March 2021,
https://ohrh.law.ox.ac.uk/for-whom-the-bell-tolls-contract-in-the-gig-economy/)
Edward Brown ‘Protecting Agency Workers: Implied Contract or Legislation?’ (2008) 37 Industrial
Law Journal 178
See also (*) reading throughout this handout.
Further reading
Simon Deakin & Gillian Morris Labour Law 7th edn (Hart 2021), Chapter 2, pp 95-98, 106-119, 124-
149, 152-159, 162-163, 11-174, 191-196, 230-233
Resolution Foundation Atypical Approaches: Options to Support Workers with Insecure Incomes
(2019), available at https://www.resolutionfoundation.org/publications/atypical-approaches-
options-to-support-workers-with-insecure-incomes/; TUC Commission on Vulnerable Employment
Hard Work, Hidden Lives. The Full Report of the Commission on Vulnerable Employment (TUC 2008),
Chapters 1 & 6. Available at
http://www.vulnerableworkers.org.uk/cove-report/short-report/index.htm.
See also reading below.
,LECTURE OUTLINE
1. The contract of employment
2. Who is an employee?
3. Problems of classification
4. Closing the gaps: extending the scope of employment law
1. THE CONTRACT OF EMPLOYMENT: THE GATEWAY TO EMPLOYMENT RIGHTS
Coverage of the substantive law of employment must always start with an analysis
of the most fundamental jurisdictional point of all – who is an ‘employee’? Smith and Baker, p 40
The contract of employment has been described as the ‘cornerstone’ of modern
labour law.
Kahn-Freund ‘Legal Framework’ 1954, Flanders & Clegg (eds) The System of Industrial Relations in
Britain
1.1 The common law: contract of service/contract for services
At the heart of employment law is the distinction between dependent and independent labour:
• The ‘contract of service’ or contract of employment. The worker is an employee.
• The ‘contract for services.’ The worker is an independent contractor.
Smith & Baker, pp 41-43
1.2 Legislation: the ‘gateway’ to statutory rights
Since the Contracts of Employment Act 1963, important statutory rights have been available only to
‘employees.’
*The definition of ‘employment’ is found in various legislation including 230(1) of the Employment
Rights Act 1996:
(1) In this Act ‘employee’ means an individual who has entered into or works under …. a
contract of employment.
(2) In this Act ‘contract of employment’ means a contract of service….whether express
or implied….whether oral or in writing.
See also e.g. Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), s 295.
Protections that extend only to employees include:
Protection from unfair dismissal
Redundancy rights
2
, Maternity leave (all Employment Rights Act 1996)
Certain rights related to trade union membership (TULR bCA)
2. WHO IS AN EMPLOYEE?
One of the oddities of English labour law is that the concept of "employee", around
which so many of the legal rules are focused, lacks any certainty in its definition.
Paul O'Higgins ‘When is an Employee Not an Employee. Inducing Breach of Contract’ (1967) 25(1)
Cambridge Law Journal 27-30, p 2
[See also Guy Davidov ‘Who is a worker?’ (2005) 34 ILJ 57]
2.1 Dependent and independent labour
How do we draw the distinction between contracts of services/contracts for services
(employees/independent contractors)?
In order to delimit the scope of…regulatory norms the law has developed criteria by which the
subject matter of labour law … dependent labour … may be identified.
Deakin and Morris Labour Law 7th edn 2021,p. 96
The task of determining who is an employees emerged and remained in the judicial sphere, with
courts and subsequently tribunals.
The courts have developed a number of ‘tests’ for employment status, which have varied over time.
Smith and Baker, pp 43-49
2.2 The historical tests
2.2.1 The control test
[A] servant is a person who is subject to the command of his master as to the manner in which he
shall do his work.
Yewen v Noakes, per Bramwell LJ
Yewen v Noakes (1880) 6 QBD 530
See also Ready Mixed Concrete (South East) Ltd v. Minister of Pensions [1968] 2 QB 497 (per
MacKenna J)
3
, 2.2.2 The integration test
The focus of the integration test is on the extent to which the worker is integrated into the hirer’s
firm or organisation e.g.is s/he subject to the rules or procedures of the firm?
See Stevenson Jordan & Harrison Ltd v McDonald and Evans [1952] 1 TLR 101 CA:
[U]nder a contract of service, a man is employed as part of the business and his work is
done as an integral part of the business; whereas, under a contract for services, his work,
although done for the business, is not integrated into it but is only accessory to it.
See also Ready Mixed Concrete (above).
2.3 The contemporary test: the ‘multiple’ test
In more recent decades, the courts have adopted a ‘multiple’ test of employment status.
*Ready Mixed Concrete (South East) Ltd v. Minister of Pensions [1968] 2 QB 497 (MacKenna J)
In Ready Mixed Concrete, Mackenna J set out three conditions for a contract of
employment:
(i) The servant agrees that, in consideration of wage or other remuneration, he will
provide his own work and skill in the performance of some service for his master.
(ii) He agrees, expressly or impliedly, that in the performance of that service he will be
subject to the other’s control in a sufficient degree to make that other master.
***(iii)The other provisions of the contract are consistent with its being a contract of
service.
[See also e.g. Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173; Hall
(Inspector of Taxes) v Lorimer [1994] ICR 218, [1994] IRLR 171, CA]
2.3.1 Factors taken into account
See e.g. *O’Kelly v Trusthouse Forte Plc [1983] ICR 728; *Autoclenz Ltd v Belcher [2011] IRLR 820.
The courts take into account a range of factors in determining whether an employment relationships
exists, three considered essential (‘irreducible minima’) and others that are classified as pointing
towards either employment or a contract for services. These factors include:
(i) Control
See above.
In Montgomery v Johnson Underwood Ltd [2001] IRLR 269, CA, the Court of Appeal viewed control
by the employer as an irreducible minimum of the contract of employment.
A recent application of the control test by the Court of Appeal required a fairly low level of control:
4
Table of Contents
Topic 1 (lectures 2-3): The Employment Relationship..........................................................1
Topic 2: The terms of the employment contract................................................................21
Topic 3: Work life balance................................................................................................39
Topic 4: Employment discrimination.................................................................................60
Lecture 10:.......................................................................................................................68
Lecture 11: Grounds of Discrimination..............................................................................72
Lecture 12: Deep Dive on the Protected Characteristics of Race and Religion or Belief......75
Topic 5: Termination of Employment................................................................................86
Topic 1 (lectures 2-3): The Employment Relationship
who counts as an ‘employee’ and why it is important in the UK.
READING
Essential Reading
Ian Smith & Aaron Baker Employment Law 15th edn (Oxford University Press 2021), Chapter 2, pp 40-
53, 55-71, 85-86
Bob Hepple ‘Restructuring Employment Rights’ (1986) 15 Industrial Law Journal 69-75 and Alan Bogg
‘For Whom the Bell Tolls: “Contract” in the Gig Economy’ Oxford Human Rights Hub (7 March 2021,
https://ohrh.law.ox.ac.uk/for-whom-the-bell-tolls-contract-in-the-gig-economy/)
Edward Brown ‘Protecting Agency Workers: Implied Contract or Legislation?’ (2008) 37 Industrial
Law Journal 178
See also (*) reading throughout this handout.
Further reading
Simon Deakin & Gillian Morris Labour Law 7th edn (Hart 2021), Chapter 2, pp 95-98, 106-119, 124-
149, 152-159, 162-163, 11-174, 191-196, 230-233
Resolution Foundation Atypical Approaches: Options to Support Workers with Insecure Incomes
(2019), available at https://www.resolutionfoundation.org/publications/atypical-approaches-
options-to-support-workers-with-insecure-incomes/; TUC Commission on Vulnerable Employment
Hard Work, Hidden Lives. The Full Report of the Commission on Vulnerable Employment (TUC 2008),
Chapters 1 & 6. Available at
http://www.vulnerableworkers.org.uk/cove-report/short-report/index.htm.
See also reading below.
,LECTURE OUTLINE
1. The contract of employment
2. Who is an employee?
3. Problems of classification
4. Closing the gaps: extending the scope of employment law
1. THE CONTRACT OF EMPLOYMENT: THE GATEWAY TO EMPLOYMENT RIGHTS
Coverage of the substantive law of employment must always start with an analysis
of the most fundamental jurisdictional point of all – who is an ‘employee’? Smith and Baker, p 40
The contract of employment has been described as the ‘cornerstone’ of modern
labour law.
Kahn-Freund ‘Legal Framework’ 1954, Flanders & Clegg (eds) The System of Industrial Relations in
Britain
1.1 The common law: contract of service/contract for services
At the heart of employment law is the distinction between dependent and independent labour:
• The ‘contract of service’ or contract of employment. The worker is an employee.
• The ‘contract for services.’ The worker is an independent contractor.
Smith & Baker, pp 41-43
1.2 Legislation: the ‘gateway’ to statutory rights
Since the Contracts of Employment Act 1963, important statutory rights have been available only to
‘employees.’
*The definition of ‘employment’ is found in various legislation including 230(1) of the Employment
Rights Act 1996:
(1) In this Act ‘employee’ means an individual who has entered into or works under …. a
contract of employment.
(2) In this Act ‘contract of employment’ means a contract of service….whether express
or implied….whether oral or in writing.
See also e.g. Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), s 295.
Protections that extend only to employees include:
Protection from unfair dismissal
Redundancy rights
2
, Maternity leave (all Employment Rights Act 1996)
Certain rights related to trade union membership (TULR bCA)
2. WHO IS AN EMPLOYEE?
One of the oddities of English labour law is that the concept of "employee", around
which so many of the legal rules are focused, lacks any certainty in its definition.
Paul O'Higgins ‘When is an Employee Not an Employee. Inducing Breach of Contract’ (1967) 25(1)
Cambridge Law Journal 27-30, p 2
[See also Guy Davidov ‘Who is a worker?’ (2005) 34 ILJ 57]
2.1 Dependent and independent labour
How do we draw the distinction between contracts of services/contracts for services
(employees/independent contractors)?
In order to delimit the scope of…regulatory norms the law has developed criteria by which the
subject matter of labour law … dependent labour … may be identified.
Deakin and Morris Labour Law 7th edn 2021,p. 96
The task of determining who is an employees emerged and remained in the judicial sphere, with
courts and subsequently tribunals.
The courts have developed a number of ‘tests’ for employment status, which have varied over time.
Smith and Baker, pp 43-49
2.2 The historical tests
2.2.1 The control test
[A] servant is a person who is subject to the command of his master as to the manner in which he
shall do his work.
Yewen v Noakes, per Bramwell LJ
Yewen v Noakes (1880) 6 QBD 530
See also Ready Mixed Concrete (South East) Ltd v. Minister of Pensions [1968] 2 QB 497 (per
MacKenna J)
3
, 2.2.2 The integration test
The focus of the integration test is on the extent to which the worker is integrated into the hirer’s
firm or organisation e.g.is s/he subject to the rules or procedures of the firm?
See Stevenson Jordan & Harrison Ltd v McDonald and Evans [1952] 1 TLR 101 CA:
[U]nder a contract of service, a man is employed as part of the business and his work is
done as an integral part of the business; whereas, under a contract for services, his work,
although done for the business, is not integrated into it but is only accessory to it.
See also Ready Mixed Concrete (above).
2.3 The contemporary test: the ‘multiple’ test
In more recent decades, the courts have adopted a ‘multiple’ test of employment status.
*Ready Mixed Concrete (South East) Ltd v. Minister of Pensions [1968] 2 QB 497 (MacKenna J)
In Ready Mixed Concrete, Mackenna J set out three conditions for a contract of
employment:
(i) The servant agrees that, in consideration of wage or other remuneration, he will
provide his own work and skill in the performance of some service for his master.
(ii) He agrees, expressly or impliedly, that in the performance of that service he will be
subject to the other’s control in a sufficient degree to make that other master.
***(iii)The other provisions of the contract are consistent with its being a contract of
service.
[See also e.g. Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173; Hall
(Inspector of Taxes) v Lorimer [1994] ICR 218, [1994] IRLR 171, CA]
2.3.1 Factors taken into account
See e.g. *O’Kelly v Trusthouse Forte Plc [1983] ICR 728; *Autoclenz Ltd v Belcher [2011] IRLR 820.
The courts take into account a range of factors in determining whether an employment relationships
exists, three considered essential (‘irreducible minima’) and others that are classified as pointing
towards either employment or a contract for services. These factors include:
(i) Control
See above.
In Montgomery v Johnson Underwood Ltd [2001] IRLR 269, CA, the Court of Appeal viewed control
by the employer as an irreducible minimum of the contract of employment.
A recent application of the control test by the Court of Appeal required a fairly low level of control:
4
