Distinguishing Between Employees Workers and Self Employed

The Supreme Court is the highest appeals court in England and Wales in most of the cases . Before getting into discussion about employment law has fail to distinguish effectively between employees, workers and self-employed in England and Wales and Germany. It is very essential to know that the terms employee, workers and self employed how they interpret in their jurisdiction, than only we can decide and analysis how effective it is.

Employment Right Act 1996 Under Section 230 :Employee, Workers, etc. Employee: According to Employment Right Act 1996 Under Section 230(1) an employee is defined as ‘an individual who has entered into or work a contract of employment.’ Under ERA 1996, a contract of employment means’ a contract of service or apprenticeship, whether express or implied, and whether oral or in writing.

: According to Employment Right Act 1996 Under Section 230(1) an employee is defined as

Worker: Under Section 230(3) ERA 1996 as an individual who has entered into work under: A contract of employment or any other contract, whether express or implied and whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or custom of any profession or business undertaking carried on by the individual.’

However in order to determine whether the person works under a contract of service or under a contract for service. It is the reality of the relationship that matters, whether a person is employed or self-employed a general guide as to be test, if the answer is ‘yes’ usually means that the worker is self employed.

• Can they hire someone to do the work or engage helper at their own expenses?
• Do they risk their own money?
• Do they provide the main equipment they need to do their job, not the small tools that many employee provide for themselves?
• Do they agree to do a job for the fixed price regarding of how long the job may take?
• Can they decide what work to do, how and when to do the work and where to provide the services?
• Do they regularly work for a number of different people?
• Do they have to correct unsatisfactory work in their own time and at their own expenses?

To distinguish between the contract of employment and self-employment is the issue and also important to identified, because ‘employees’ qualify for employment protection rights such as unfair dismissal, redundancy payment, minimum notice on termination, etc.

Germany Employment Law: In Germany the entire employee representation system differ considerably from the position in the UK and the employer are heavily involved with the workers council. Discrimination law is relatively undeveloped compare with UK and unfair constructive dismissal is not known in Germany.

: In Germany the entire employee representation system differ considerably from the position in the UK and the employer are heavily involved with the workers council. Discrimination law is relatively undeveloped compare with UK and unfair constructive dismissal is not known in Germany.

: Under Section 230(3) ERA 1996 as an individual who has entered into work under: A contract of employment or any other contract, whether express or implied and whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or custom of any profession or business undertaking carried on by the individual.

According to Section 3. Definitions. (1) “Employees” in this Act are permanent civil servants of both sexes, non-established civil servants, workers of both sexes including persons employed for purposes of training; and persons holding offices under the public law and judges of both sexes.

Article 9. Amendment of the Employment Act (Adjustment to European Community law.

An employee is an individual who is obliged under a contract of employment to work under the direction and control of another (the employer) in return for a wage or salary. .

Pursuant to Art. 611 German Civil Code (“BGB”) an employment contract is a contract between employer and employee. It constitutes the employment relationship.

An employee is an individual who is obliged under a contract of employment to work under the direction and control of another (the employer) in return for a wage or salary. . Pursuant to Art. 611 German Civil Code (“BGB”) an employment contract is a contract between employer and employee. It constitutes the employment relationship.

A contract is not necessary, but the main terms of employment should be provided in writing including the names of the parties, the type of work to be performed, remuneration, working hours/vacation time, notice periods and any references to a collective bargaining agreement. It must be provided to the employee one month after the start date.

The European Convention for the protection of Human Right and Human Right Act 1998, was adopted for the purpose of protecting individual’s right against infringement by state.

. (1) in this Act are permanent civil servants of both sexes, non-established civil servants, workers of both sexes including persons employed for purposes of training; and persons holding offices under the public law and judges of both sexes. An employee is an individual who is obliged under a contract of employment to work under the direction and control of another (the employer) in return for a wage or salary. . Pursuant to Art. 611 German Civil Code (“BGB”) an employment contract is a contract between employer and employee. It constitutes the employment relationship.

So, let discuss with some relevant Cases:

1) In Ready Mixed Concrete(south East) Ltd V Minister of Pension and National Insurance.

In this case the minister contend that plaintiff company was liable to pay national insurance contributions in respect of a driver employed by it to transport concrete. . However the driver was unable to fulfil to do his work as required by the company because of his illness, he could hire another driver for the vehicle.

Appeal. Lord Denning MR: said it seems the authorities that, when it is situation which is doubt or which is ambiguous, so that it can be brought under one relationship or the other it is open to the parties agreement to stipulate with the legal situation between them shall be, so the way the parties draw up their agreement and express it can be an important factor in defining what the true relation was between them. If they declare that one party is self-employed, that may be decisive.

In this case the court tried to distinguish between the contract of service or the contract for service, and the court did not indicate that Massy’s case was wrong, however In my opinion the decision given by the court was relevant and reasonable from the facts and there was mutual obligation.

2) In Ferguson V Dawson & Partner:

In this case the court considered an individual who worked on a building site as a self employed contractor. He had no express contract of any kind, although the court came to accept that implied terms of a contract did exist. And here I do agreed the decision given by the court.

3) In O’ Kelly and other V Trusthouse Forte Plc:

In this case the court of Appeal stated that ‘without the Employment Appeal Tribunal being entitle to intervene where in it view the employment tribunal has wrongly evaluated the weight of relevant consideration that in will be open to employment tribunal to reach differing conclusion, so long as they are reasonable maintainable, on essentially the same fact. The court concluded that the weight given to the particular factor show a mis-direction in law an Appellate Court can interfere. In this case my opinion to the decision given by court was more reasonable and clearly interpreted by the Appeal court the terms, employee, workers and self employed.

4) In Obst v. Germany (no. 425/03) and Schüth v. Germany (no. 1620/03), the European Court of Human Rights on 23 September 2010 “for the first time addressed the dismissal of Church employees on grounds of conduct falling within the sphere of their private lives,” according to a Court press release. Both cases dealt with the rights of religious communities to self-determination in dealing with their personnel where their employees fail to abide by standards of conduct fundamental to the communities’ doctrines and beliefs. In the case of Obst the Court unanimously found no violation of Article 8 of the European Convention and in Schüth unanimously found a violation of Article 8 had occurred.

Conclusion: After studying about Employment law of England and Germany there are some how different in their interpretation, German Legal system that has been influenced by social situation in the country over the year however English law are more traditional approach to the conduct involving the legal relationship between the worker, employee and Trade Union. In my opinion I considered that English Law are more competent than German law, after studying those relevant cases and analysing their judgement given by the court are reasonable, and the interpretation of employee, worker and self employed which are much clearly define in English law compare with Germany law and it need to be more clearly define the terms. So, I would like to conclude that by saying English Law or German Law has not fail but today there are still many situation for which statue has not legislated and it is up to Law of contract to fill the gap.