The relationship between employers and employees is constantly changing and in the UK it can often be very difficult to comprehend, but a previous provides some explanation. Employment law in the UK continues to be influenced heavily by the 19th century. Therefore, the importance of the contractual relationship between worker and employee is still clearly apparent. Dacas v Brook Street Bureau (UK) Ltd (2004) conveyed the issues that the common law approach to establishing employment rights can cause.
Allonby v Accrington & Rossendale College and ors (2004), also an agency worker case, states the difference in the approach to establishing employment rights accepted within Europe. It could well be a sign of things to come in the future. It has only been recently generally accepted that statute should redress the inequality in the bargaining authority of employee to employer after the second world war. Previous to that, and that legislation which followed, the rights of the employee were more importantly based upon contract.
Initially statutory protection was given to "employees" – that is, to individuals who could demonstrate that they worked under a employment contract. Due to this the concept of unfair dismissal only applies to employees, and en employee is described as a "person who works under… a contract of employment" (Employment Rights Act 1996 Section 6). This test is quite short and has the appearance of being too easy, but the appearance is confusing. At the borderline points it is very difficult to acknowledge whether a person is employed under a contract of employment or a contract of services.
This was the problem in the Dacas case which was determined by the Court of Appeal. Brook Street had a contract with Wandsworth Council to provide the council with agency staff. After 4 years working as a cleaner at one of the council's hostels, Patricia Dacas was told to leave. She claimed unfair dismissal against both Brook Street and the council. The Employment Tribunal, the Employment Appeal Tribunal (EAT) and the Court of Appeal all announced different conclusions regarding Dacus's contractual status, and therefore they also reached different decisions about whether she was entitled to claim unfair dismissal.
The Employment tribunal perceived that the contract she had with Brook Street was not a contract of employment, but a contract of services – that is to say that she was self-employed and as a result not entitled to claim unfair dismissal against Brook Street or the council. The EAT held that, although her contract with Brook Street stated that it was not a contract of employment, the facts seemed to demonstrate that it was. There was sufficient "mutuality of obligation" and the agency issued sufficient control. Therefore, she was entitled to claim unfair dismissal against Brook Street.
By a majority, the Court of Appeal, held that the Employment Tribunal had been right to conclude that Dacas was not a Brook Street employee and that she was not entitled to claim unfair dismissal against the agency. However, the Employment Tribunal were more inclined to conclude that because there was no written contract between Dacas and the council, she had clearly not been employed by the council. Obviously, it is not acceptable that two specialist employment tribunals and the Court of Appeal do not agree on the appropriate analysis of Dacas's employment status.
it makes it extremely difficult for people such as Dacas to determine whether or not they have a claim. In addition to this, the emphasis on contractual theory to establish whether individuals can claim unfair dismissal forces Employment Tribunals makes matters even more legalistic and increases the opportunities for appeal. It is widely acknowledged that Tribunals to decide issues rapidly, effectively and in an inexpensive manner. Unlike the UK employment law, the European Community (EC) Treaty is based on the assumption that the world is split into "workers" and "employers", rather than "employees" and "employers".
This is more than a difference in terminology. EU law, like German law, looks at what people do to establish whether they are employed, rather than at the contents of the contract. In Germany an employee is an individual who completes dependent work for the benefit of another person on the basis of a civil law contract. Work is 'dependent' if the employer has the right to give instructions on the place, time and details of the employee's work. The fact that an employee works 'dependently' identifies the work of independent contractors or freelancers.
The approach is very similar to that adopted by the European Court of Justice (ECJ) when, for the first time, it defined "worker" for the purposes of Article 141 (1) of the EC Treaty. The court defined a worker as: "… a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration. " (Allonby, 1996, paragraph 67) … to be distinguished from an "independent provider of services" by the fact that the latter is "not in a position of subordination with the person who receives the services.
" (Paragraph 68. ) The ECJ continued to say: "Provided that a person is a worker within the meaning of Article 141 (1) EC, the nature of his legal relationship with the other party to the employment relationship is of no consequence. (Paragraph 70. ) In other words, when establishing the whether a person is entitled to protection under article 141, it does not matter whether they are employed under a contract of employment or a contract of services. The crucial analysis is identical in Germany, the EU and the UK.
Each divides workers into those that require protection and those who do not because they are sufficiently independent. The difference is that, in the context of unfair dismissal, the UK decides the issue of dependence by analysing the nature of the contract rather than by assessing the nature of the relationship. This seems to be an unnecessary additional step that will become more difficult to justify, especially if it continues to result in confusion.
Under the Employment Rights Act 1966, Part V, trade union-appointed or employee-elected representatives, and employees who have put their name forward for election as employees representatives, are among those who have the legal right not to be subjected to any detriment by their employer for exercising (or presuming to exercise) certain statutory rights. Those rights are to perform, or purpose to perform, their functions as such representatives and to consult with their employer on issues related to proposed collective redundancies or the transfer of an undertaking.