Commentary

(b) Employment status

Division BI Pay
| Commentary

(b) Employment status

| Commentary

(b)     Employment status

The rights created by ERA 1996 Part II apply to 'workers'. This term is defined by ERA 1996 s 230(3) to include a person working under a contract of employment or apprenticeship as well as someone who works under:

''any other contract, whether express or implied and (if it is express) 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 that contract a client or customer of any profession or business carried on by the individual.''

It is clear that the definition can only be satisfied if there is a contract, be that a contract of employment or a contract whereby the individual performs work or services personally for the other party. As a result, whilst the definition is not intended to cover the genuinely self-employed, it does cover many casual and freelance workers who do not have contracts of employment but who can nonetheless show they have contracted to perform work or services personally for another contracting party.

A number of additional points can be made. Firstly, domestic case law on the meaning of 'worker' is constantly evolving and it is clear from recent decisions that the term is a broad one, covering a range

To continue reading
Analyse the law and clarify obscure passages all within a practical context.