In English Employment Law the Issue of Employment Status is Almost Exclusively one for the Courts to Decide Upon - Essay Example

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In English employment law the issue of employment status is almost exclusively one for the courts to decide upon. Outline the ways and means whereby the Court of Appeal and the Supreme Court differentiate between an employee and a self-employed person and comment critically on their procedures…
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In English Employment Law the Issue of Employment Status is Almost Exclusively one for the Courts to Decide Upon
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Download file to see previous pages The basic distinction between employee and self employed person is that employee has to serve under the employer with certain terms and conditions whereas the self employed has to work under the contractor for specific job on fixed payment. Another simple way of distinguishing employment from self employment is: a) buying an employee or b) buying a service1. Employment Tribunals Act 1996 provides the formation of employment tribunals. It comprises of judge and two lay members. Most of the times tribunals deal with the employment disputes leaving few exceptions where a judge has to sit alone2. The Tribunal can hear and decide the case if it falls within the ambit of the given acts: a) equal Pay Act 1970 breach of equality clause in contracts of employment b) employment Agencies Act 1973 application by the Secretary of State for a prohibition order c) sex discrimination Act 1975 d) race relations Act 1976 e) Section 230 (3) 19963. Employment Tribunals Regulations 2004 governs the procedures of employment. The tribunal in question examines the nature of employment with specific reference to the relationship of an employee and the self employed. The decision of the Tribunal is binding on all stake holders. In such cases, if affected employees hire the services of a solicitor he / she have to bears the fee4. The aggrieved party can challenge the decision of lower judiciary in the Court of Appeal or in the Supreme Court as the case may be. The apex court while dealing with the employment cases frequently refers the judgments of House of Lords5. The Supreme Court can: a) affirm or set aside the impugned orders of the subordinate courts b) Order subordinate courts to retrial the case if found that the trial was not fair6. The terms that create confusion in the trials are ‘implied’ and ‘irrelevant’. Employment status is determined on the basis of actual relationship. Court has its own guidelines which prevail in the event of any dispute. One question that arises is that why should the two parties be in dark over this issue for a considerable amount of time. Many workers carry on their duties under the employment status labelled on them by the employers. This goes on for months and even years. There should be a rigid framework that prevents workers from living in ignorance or being completely oblivious to the benefits they can receive from a change in their employment status7. Control Test One of the most important tests to determine the employment status is the Control Test. This test determines the manner in which the work is done8. In the ancient times most of the workers were unskilled. Now there has been a dramatic change in the labour market. Workers are skilled and have in-depth knowledge about their work as compared to their employers. As mentioned earlier, changes in the working styles of corporations and individuals have made the control test less effective in many ways. The problem multiplies when dealing with skilled workers who are not under the direct control of the employer / client, but an integral part of the organization9. Of course there are strengths and weaknesses in control test. Many factors can be considered in the physical control such as presence at work, timely completion of task and the quantity of work given to workers. But with skilled workers who decide their own pace and timing may not be under direct ‘ ...Download file to see next pagesRead More
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