Chapter Updates

Chapter 14

Part-Time Workers

The House of Lords has held that in determining whether full-time and part-time workers are employed on ‘broadly similar work’, comparisons should be made of the types of employment relationship rather than the terms and conditions of employment. As a result if full-time and part-time staff are employed on the same contracts, even though terms and conditions may be variable, they could still be employed on broadly similar work, even thought the full-time staff have additional duties. See Matthews & Others v Kent & Medway Towns Fire Authority & Others [2006] UKHL 8.

Minimum Wage

Following the sixth report by the Low Paid Commission (www.lowpay.gov.uk) new minimum wage rates took effect from October 2006. The adult rate is £5.35, the development rate for 18-21 year olds is £4.45 and the rate for 16-17 year olds is £3.30.

Contract of Employment

The employment status of agency workers was considered by the Court of Appeal in Cable & Wireless PLC v Muscat [2006] EWCA Civ 220. As a result even though there may be an express agreement between the agency and the worker, this did not preclude the existence of an implied contract of employment between the worker and the person contracting him. Whether such an implied contract exists will depend on the facts of the particular case. A key factor in determining whether there is such an implied contract is where mutuality of obligation and control lies in order to give business reality to the arrangement. The fact that the terms of the agreement between the agency and the worker and the worker and the contractor may be inconsistent, also did not preclude the existence of such an implied contract. The Courts should examine the contract between the worker and agency to see whether it excludes the possibility of such an implied contract existing.

In Flett v Matheson [2006] IRLR 277, the Court of Appeal held that a modern apprenticeship agreement between an employer, an employee and training provider was capable of being construed as a contract of apprenticeship, even though some of the training was provided by a party other than the employer. As long as the agreement has the essentials of a traditional contract of apprenticeship as laid down in Dunk v George Waller & Sons Limited [1972] ALL ER 630, which are as follows:-

Payment of wages during the period of the apprenticeship

Instruction and training to enable the apprentice to acquire valuable skills

Status on completion of the apprenticeship that gives the individual a good start in the labour market.

If this criteria is fulfilled and the modern apprenticeship agreement is deemed to be a contract of apprenticeship, the employee will be given employment rights which will enable him/her to claim for unfair dismissal, redundancy, dismissal without notice, etc.

Where a worker undertakes a succession of short term assignments over a lengthy period, they may be deemed to be an employee, as each separate assignment may constitute an individual contract of employment. In this particular case a teacher worked as a home tutor for Cornwall County Council and over a ten year period undertook a succession of individual contracts in respect of particular pupils. The contracts varied in terms of both weekly commitments and overall duration as they depended on the pupils needs. The teacher, Mrs Prater, was under no obligation to except pupils nor were the Council under a particular contractual obligation to offer pupils to Mrs Prater. The issue in this case as whether Mrs Prater had been continuously employed by the Council since the commencement of her work as a home tutor to the point where she commenced employment as a part-time tutor. The Council argued that during the gaps in her contractual obligations that there was not mutuality of obligation and therefore no contract of service. However the Court of Appeal held that there was sufficient mutuality within each single engagement to create an individual employment contract which was sufficient to support a contract of service and therefore a period of continuous employment from the commencement of the home tutor contracts- see Cornwall County Council v Prater [2006] EWCA Civ

October 2005

Contract of Employment

The EAT in Bridges & others v Industrial Rubber (November 04 EAT/0150/04) has confirmed that there is no employment relationship where there is no mutuality of obligation. In Bridges there was a written contract which stated that there was no obligation on the company to provide work or on the home worker to accept work. As a result no contract of employment could be implied, even though there were other features of an employment relationship

March 2003

Page 423

Paragraph 14.2: You should refer to Hewlett Packard Ltd v O’Murphy [2002] IRLR 4, in which the EAT makes it quite clear that there must be some form of contractual arrangement before consideration of whether s 230 of the ERA 1996 is applicable.

Page 430

The case of Byrne Brothers (Formwork) Ltd v Baird [2002] IRLR 96 provides a further interpretation of the term ‘worker’ in deciding that ‘a limited power to appoint a substitute is not inconsistent with an obligation of personal service’.

Page 433

The need for absences ‘by arrangement’ to be agreed by both parties as counting towards continuity is highlighted in Curr v Marks & Spencer plc (2003).

Page 442

Paragraph 14.6.4: The CA has confirmed the EAT’s decision in Henry v London General Transport Service Ltd [2002] IRLR 472.

Page 442

Paragraph 14.6.3: There is no requirement on the part of the employer to pay any arrears to former employees who left employment before any notice was served by the Inland Revenue – Inland Revenue v Bebb Travel plc [2002] IRLR 783.

Page 446

It should be noted that a breach of the duty constitutes a repudiatory breach of contract and following the case of Morrow v Safeway Stores [2002] IRLR 9, there are no degrees of breakdown which would result in a lesser outcome.

Page 447

However, if an employee is to argue successfully that a former employer’s breach of trust and confidence has had an adverse effect on future employment prospects, he/she must show a significant causal connection – Bank of Credit and Commerce International SA v Ali & Others (No 3) [2002] IRLR 460.