Employment v Self-Employment – This is Why the Distinction Really Matters

Employment law has moved on in leaps and bounds since the bad old days of mass casual labour. However, as an Employment Tribunal (ET) decision showed, a large number of people still go to work every day without any clear idea of whether they are employed or self-employed, or any understanding of…

Aug 16, 2021

The case concerned a van driver who worked for the same company (C1) for about 17 years before it was taken over by another (C2). The latter accepted that it was obliged by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) to take on C1’s employees under the same terms and conditions as they had enjoyed prior to the takeover.

The driver launched proceedings against C2 on the basis that, contrary to its TUPE obligations, it gave him a verbal warning for taking unauthorised leave, stopped his holiday pay and ceased providing him with regular work. C2 asserted that TUPE provided him with no protection in that he had never been employed by C1. The ET considered that issue at a preliminary hearing.

Ruling on the matter, the ET noted that, prior to being taken on by C1, he discussed terms with a director of the company. However, throughout his many years with C1, he never had a written employment contract. As if he were self-employed, he invoiced C1 for his services, for which he was paid a daily rate.

The ET noted, however, that the absence of a written contract, and the fact that he paid his own Income Tax and National Insurance Contributions, did not necessarily mean he was anything other than a full-fledged employee. The practical reality of his relationship with C1 was that he worked steadily for the company for many years on terms that were inescapably those of employment.

Working exclusively for C1 under its direction and control, he had no clients of his own and made no decisions for himself. He used company equipment to do his work; he was required to attend work regularly and could not send substitutes to do his job for him. He was straightforwardly an employee of C1 throughout and was thus entitled to benefit from TUPE protection as against C2.

Are ‘Smart’ Motorways Safe? High Court Ruling Begs the Question

Are so called ‘smart’ motorways, which lack hard shoulders, safe? An answer to that question was implicitly begged by a High Court case concerning a catastrophic accident involving a minibus filled with university students, one of whom died. The university-owned minibus was returning from a sporting event along a stretch of smart motorway when it began to lose power. After a dashboard warning light came on, the driver pulled into an emergency refuge area (ERA). About 22 seconds later, he drove…

Low Caste Hindu Refused Anonymity Order in Employment Case

The subject matter of Employment Tribunal (ET) cases can be highly sensitive, and those involved are often keen to maintain their anonymity. However, as was shown by a case in which controversial religious issues took centre stage, the open justice principle will usually require them to be identified by name. The case concerned a senior electrical engineer who was of Tamil origin and came from a low Hindu caste. In ET proceedings he asserted, amongst other things, that his line manager, a high…

Highway Authority Not Responsible for Catastrophic M25 Lorry Crash

Those involved in catastrophic road accidents frequently point the finger of blame at potholes or other defects in the road surface. As one case showed, however, it can be an uphill task to pin responsibility for such accidents on highway authorities. The case concerned an accident which befell an articulated lorry whilst works were in progress to convert a stretch of the M25 into a smart motorway. The lorry was using the hard shoulder when its wheels strayed onto the verge and over a filter…