The paper "Business and Employment Law " is a perfect example of a Business Assignment. In this problem, Fatama had refused to use the new machinery introduced by Graham, intended to speed up production. For advising Fatama, regarding her right to continue working with the previous machinery, it is to be examined whether Fatama is an employee or worker. In this regard, Section 230(1) of the Employment Rights Act 1996 defines an employee as an individual who has entered into or works under, or who had worked under an employment contract. With regard to whether the employer has adequate control over an employee, it has been the usual practice with tribunals to concentrate upon the extent of control that the employer exercises on a regular basis.
Whilst deciding in White and Todd v Troutbeck, the employment appeal tribunal (EAT) held that emphasis had to be upon whether the employer had retained an overarching right of control over the employee during the period of employment, which is evidently a simpler condition for the prospective employee to satisfy. This decision of the EAT had been upheld by the Court of Appeal, which stated that the absence of actual daily control could not be deemed the determining factor. In addition to working under a contract of employment, the following necessary elements have to be present: first, the individual must have a contract with the employer.
Second, the work has to be carried out by the individual personally. Third, the mutuality of obligation has to be present between the parties. Fourth, the work carried out by the employee has to be under the control of the employer. In our problem, Fatama had been working for three years, under the control of the employer with manual training provided by them.
Hence, Fatama can be deemed an employee of the firm and she is obliged to follow the instructions and work under the control of the new manager. She cannot refuse training for using the new equipment that is intended to speed up production since she has a mutuality of obligation with her employer to accept the work allocated to her. In this regard, the requirement that the employer exercises control over the employee is central to establishing employee status.
Regarding agency workers, it is indeed an onerous task to prove this. For instance, in Dacas v Brook Street Bureau, Dacas had been working for six years at a local authority hostel for the local, as an agency worker. The Court of Appeal ruled that notwithstanding an express condition to the contrary, an implied contract of employment was in place betwixt Dacas and the local council. Despite the presence of all the aforementioned elements, employment status is not automatic. The intention of the parties is considered by employment tribunals.
The latter also take into consideration the extent to which the individuals carrying out the work provide their own equipment, bear financial risk or are integrated into the business. Every feature of the relationship is scrutinized by the employment tribunals, and no factor, in isolation, is regarded as being decisive.
‘An employee or a worker?’ (Thompsons, September 2005)
‘Asking about criminal records’ (Nacro, 2017)
‘Checks employers can make on job applicants’ (Gov.UK, 28 March 2017)
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR).
Dacas v Brook Street Bureau (UK) Ltd  IRLR 358.
‘Disclosing criminal records’ (Nacro, 2014)
‘Discrimination: What to do if it happens’ (Advisory, Conciliation and Arbitration Service, October 2015)
Employment Rights Act 1996.
Equality Act 2010.
‘Ex-offenders and employment’ (Gov.UK, 27 March 2017)
Greig v Community Industries  ICR 356.
Police Act 1997.
Property Guards Ltd v Taylor and Kershaw  IRLR 175.
R (on the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants)  UKSC 35.
Rehabilitation of Offenders Act 1974.
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013).
‘Sexual orientation and discrimination’ (Advisory, Conciliation and Arbitration Service)
‘Sexual orientation discrimination: key points for the workplace’ (Advisory, Conciliation and Arbitration Service, October 2016)
‘The Rehabilitation of Offenders Act’ (Nacro, 2017)
Troutbeck SA v White & Anor  EWCA Civ 1171.
‘What is the difference between a worker and an employee?’ (Personnel Today, 8 April 2013)
‘Your rights at work’ (Gay Activist, 23 January 201)