To escape the current frenzy and excitement over the soon to be introduced age discrimination laws, here is a little bit of light relief: a look at what the employment courts have recently been up to in two significant cases.
Employment status - a loophole closed?
Ever since employees have been protected and subjected to strict tax rules, some employers and members of staff have tried to avoid employment status - employers in order to avoid potentially costly claims, and employees in order to foil the tax man!
Over the years, as these attempts came before the courts, a number of tests were developed to assess if a person was genuinely self-employed.
One factor that the courts have decided must be present for there to be an employment relationship is technically known as mutual obligations. This means that for their entire relationship, an employer and an employee must be under legal obligations to one another.
This being so, it became common to write into certain contracts (often for casual staff) that the "employer" did not have to offer work, and that the "employee" did not have to accept the work offered. Hence there were no mutual obligations, and no employer/employee relationship with all it entails.
A recent case concerned a television reporter.
His contract with the news network required the network to offer him at least 100 days' work every year, but the reporter did not have to accept the work. No doubt a clever lawyer trying to avoid an employment relationship between the network and the reporter drew this up.
When the reporter fell out with the network, and wanted to show that he was actually an employee, he initially failed. He was not required to accept any work offered to him by the network and so there were no mutual obligations, and as a consequence no employment relationship.
The reporter appealed. The appeal tribunal, obviously feeling that the reporter deserved to be protected on the particular facts, found in his favour with some clever reasoning. It decided that although there was no written or express agreement on the point, it could imply that the reporter had to act in good faith whenever he decided to accept or reject work offered to him by the network. There were therefore the mutual obligations necessary for an employment relationship to exist.
This goes to show that in the right circumstances a court can find an employment relationship exists, even where, on the face of it, one may not exist. So now is a good time to check any self-employed agreements (whether written or verbal), just in case a nasty surprise is around the corner.
When sleeping counts as work!
This case concerned a guest care manager employed by a hotel. He was regularly required to sleep over at the hotel, primarily to deal with emergencies like fires or flooding. The hotel needed to have at least two employees on site overnight to satisfy health and safety and fire regulations.
The guest care manager was disciplined when he left the hotel for half an hour during a sleepover period. The Employment Tribunal was asked to decide whether the guest care manager was working, even though he was asleep.
The matter eventually came before the appeal tribunal, which decided in favour of the guest care manager.
It said that previous cases had decided that an employee could be regarded as working even if asleep. They would be regarded as working if the place where the employee was sleeping was his employer's premises, and the reason the employee was sleeping there was that the employer required the employee to be on the premises for the employer's purposes.
This was quite clearly the case here. This case should be borne in mind when assessing an employee's working time.