EMPLOYMENT LAW

Employment Law

Employment Law



Introduction

Employment status (whether a "worker” is, for tax purposes, an employee or a self-employed consultant/subcontractor) is a risk area from which HMRC regularly makes large recoveries of tax and NIC. Where a business engages the services of a worker they required to carry out checks to determine their tax employment status (which may be different form employment law status) in order to determine whether they should be paid via the PAYE system. Some categories of workers, as well as those in industries pose specific issues/risks, including Non-Executive Directors (NEDs); construction industry workers; actors; sports personalities; higher education providers; legal employees; and film and TV sector workers. In addition, certain public sector pension arrangements allow for an employee to leave and be re-engaged as a "consultant”.

Discussion

It has been written that 'most workers want nothing more of the law than that it should leave them alone'. This is probably true in the majority of cases; most people simply want to go to work and, get paid and rarely consider their employment 'rights' until something happens to force it upon them. However, there can be no employment relationship without a power to command and a duty to obey. Furthermore, the circumstances in which people drawn to examine the nature of their employment contract are often ones in which this relationship has broken down: where there is a dispute over the terms and conditions of work or where the contract breached by one or other of the parties. It can often be at this point that the importance of having an understanding of the 'contract of employment' becomes apparent (Selwyn 2002, Pp. 134).

Some contractual terms and conditions of an employee's employment specified, such as the rate of pay, hours of work and holiday entitlements. Other matters may not be specifically referred to in the contract, but will nevertheless be implied into it - for example, the law of the land 'implied' into every contract of employment. We will return to examine these issues in more detail later, but it begins to be clear why the contract of employment described as the 'cornerstone' of the employment relationship, because in relation to the law and contractual rights, 'everything hinges' upon what it contains.

In British law, there is a general assumption that the contract of employment is like any other commercial contract. It regarded in law as a contract that entered into voluntarily by both parties and a contract made between equals. This is a view of the employment relationship that typically rests on assumptions of the free market and the freedom of choice available to workers. However, this assumption of freedom of choice ignores the reality of power relations in the employment relationship; rarely will the individual employee possess bargaining power equal to that of the employer. A trade union may redress some of this power imbalance by representing the interests of groups of employees and negotiating with the employer on their ...