Commentary

(a) No need for an irreducible level of mutuality

Division AI Categories of Worker
| Commentary

(a) No need for an irreducible level of mutuality

| Commentary

(3)     Applying the general definition

Returning to the general definition of 'worker' in TULR(C)A 1992, the case law was sparse until the definition was adopted in the Working Time Regulations 1998. It then became an issue, not in relation to working time as such, but because its application to the then-new statutory right to paid annual holidays. Traditionally, a self-employed person would not have expected or been given paid holidays because they were not employees, even if the basis for their employment was rather 'thin' and largely for tax purposes. However, the Regulations raised the possibility for at least some such persons to claim the new right as 'workers' instead. The case that first established this possibility was Byrne Bros (Farmwork) Ltd v Baird [2002] IRLR 96, EAT which concerned building workers taken on (by the one employer for whom they actually worked in practice) under a 'subcontractors agreement' which provided that no work was obligatory on either side, the subcontractor could arrange other labour at his own cost, and that no holiday pay was due. The Inland Revenue accepted this as Schedule D self-employment. In practice, however, these individuals only worked for that one employer and did so personally, on a regular basis under supervision, and being paid on a time-worked basis. The EAT upheld the tribunal's decision that they were 'workers' and so entitled to holiday pay when the employer used the common device of laying them off over the Christmas period. The case

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