Employment solicitors have for a long time grappled with the thorny issue of what constitutes employment status.

The main distinction of importance is that between an employee and a worker. An employee is an individual who has entered into, or works under a contract of employment. Broadly speaking, a contract of employment is a contract of service.

The question of employment status has been blurred in recent years by the evolution of the status of the worker and has become a task for employment solicitors to define.

Of this predicament, Thomas Mansfield’s David Gray-Jones says, ‘Whilst workers have less extensive employment protection rights than employees, such as the right not to be unfairly dismissed, other statutory employment protections including the right to holiday pay or to complain about non payment of wages, often cover workers as well as employees.’

For employment solicitors, the concise and efficient way to examine such cases is through EAT, a test applied by an employment tribunal when making decisions around unfair dismissals.

David Gray-Jones, of the Employment Appeal Tribunal he appeared in on behalf of Word by Word Translations Limited, argues that;

‘The claimant was neither an employee nor a worker; the employment tribunal did not have authority to hear his various claims including those of unfair dismissal and unauthorised deduction from wages.’

A fundamental tenet of a contract of service (a conventional contract of employment) is the requirement to perform the services personally. Of interest to the employment appeal tribunal was the fact that Mr Kuncharalingam had the power to delegate, that is, send a substitute to complete an assignment when he was unable to do so himself.

Whilst not establishing a new point of law, this case can be distinguished from earlier cases where the issue of substitution has been considered. Had the company exercised its power to limit Mr Kuncharalingam’s ability to provide a substitute then the employment tribunal might have felt obliged to follow previous legal authority and found him to be a worker.

What distinguished this case was the fact that Mr Kuncharalingam had an unfettered right to provide a substitute. He did so without telling the company and the company did not object. Thomas Mansfield’s David Gray-Jones says, ‘I was able to detect an absence of requirement for personal service and his case failed.’

Via EPR Network
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