Poor Contract Drafting Leaves the Door Wide Open to Employment Disputes

Inept and non-professional drafting of contracts is an open invitation to employment disputes. That was certainly so in a case where a property manager’s contract left substantial room for doubt as to whether he was employed or self-employed.

The man was, under the terms of a written…

Feb 22, 2022

The man was, under the terms of a written contract, for many years engaged by a company to provide site management services in relation to two blocks of flats. He lodged Employment Tribunal (ET) proceedings against the company but, in order to succeed in his claim, he first had to establish that he was employed, within the meaning of Section 230(1) of the Employment Rights Act 1996 (ERA).

He pointed out, amongst other things, that the contract granted him the right to 28 days’ paid annual leave. The company provided him with most of the tools he needed to do his job and had honoured the contractual requirement to give him 30 days’ notice of termination. He was provided with a company mobile phone and the contract was silent as to whether he was entitled to substitute someone else to perform his role.

In arguing that he was nevertheless self-employed, the company emphasised that he invoiced for his work on a monthly basis, that no pension arrangements were made for him and that neither tax nor National Insurance Contributions were deducted from his pay. He had a number of other clients, ran his own sign manufacturing business for a time and enjoyed a wide discretion as to when and how he went about his work.

Ruling on the matter, the ET noted that the contract was poorly drafted without any thought having been given to his status. It did not, for example, deal with many of the particulars of employment required by Section 1 of the ERA. Taken as a whole, it was not consistent with the provisions of a contract of employment.

On the limited evidence available, the ET was not satisfied that the company exercised a sufficient degree of control over him and his work to give rise to an employment relationship. On balance, it found that he was self-employed and in business on his own account. That ruling was fatal to his claim.

EAT Reinstates Claims Struck Out for Failure to Comply With Order

The Employment Appeal Tribunal (EAT) has upheld an appeal against the striking out of a man’s claims after he failed to comply with a case management order, finding that the Employment Tribunal (ET) had failed to consider whether a fair trial was still possible and that an unless order should have been made instead. The man had brought a number of claims including disability discrimination, failure to make reasonable adjustments, harassment and victimisation. The ET considered that it was not…

Employers – Knee-Jerk Reactions to Fractious Situations Can Cost You Dear

When employees query the contents of their wage packets, terse conversations can ensue. As one case showed, however, knee-jerk reactions to such situations are a positive invitation to Employment Tribunal (ET) proceedings. The case concerned a hotel worker in her probationary period. She considered that her first payslip was about £1,000 short. She had been paid in accordance with the hotel’s payroll system, but that system had not been explained to her. Her initial reaction was to place a…

Disability Discrimination by Association – Guideline EAT Decision

It may sound surprising, but you need not necessarily be disabled in order to suffer disability discrimination. As one case showed, it is legally possible for a non-disabled employee to suffer discrimination by association with a disabled colleague. A sales manager was recruited by a company’s sales and marketing director, who subsequently became disabled due to cancer. After both men were dismissed, the manager launched proceedings, asserting that he had been subjected to direct disability…