The general test for the existence of a
contract of service set out in Ready Mixed
Concrete (South East) Limited v the
Minister of Pensions and National Insurance
[1968] 2 QB 497 is still the correct starting
point
• mutual obligations to provide work in
return for a wage or remuneration
• the employer has an element of control
• the other terms and conditions are
consistent with an employment
relationship
• statutory definition of an employee vs. a
worker
• why does it matter?
– employee rights vs. worker rights
Recent case law
• X v Mid Sussex Citizens Advice Bureau
and another [2012] UKSC 59
• a voluntary worker who had no legally
binding contract and was therefore not
obliged to provide any services was not
considered to be in ‘employment’ for
discrimination purposes
• O’Brien v Ministry of Justice [2013] UKSC
6
• following ruling from the ECJ, the
Supreme Court held that
– the claimant was a part-time worker
within the meaning of the framework
agreement on part-time work
• O’Brien v Ministry of Justice [2013] UKSC
6
• following ruling from the ECJ, the
Supreme Court held that
– there was no objective justification for
the discrimination regarding provision of
pensions between full-time and part-time
judges
• Stringfellows Restaurants Ltd v Quashie
[2012] EWCA Civ 1735
• dancer at Stringfellows was found not to
be an employee
– dancer took the economic risk – paid
exclusively by 3rd parties
– the parties accepted that the dancer
should have self-employed status
• White and another v Troutbeck SA [2013]
UKEAT 0177/12
• question of ‘control’ revisited
• control is not determined by whether the
worker has day-to-day control over their
own work but rather by whether a
contractual right of control over the
worker has been retained
• new rules came into force on 30 June
2012
• eventually all employers will be obliged
to automatically enrol eligible workers
into a pension scheme
• employers will become subject to their
auto-enrolment duties from their
relevant staging date
Who is a ‘jobholder’?
• a worker who is
– working (or ordinarily working) in the UK
under a contract
– aged at least 16 but under 75
– paid qualifying earnings
Who is an ‘eligible’ jobholder?
• at least 22 and not reached state
pension age
• earn more than the earnings trigger in a
relevant pay reference period
• not already an active member of their
employer’s qualifying scheme at the
date they become eligible for auto-
enrolment
Who is a ‘worker’?
• someone who has entered into or works
under
– a contract of employment, which must
be a contract of service or
apprenticeship whether express (in
writing or oral) or implied
Who is a ‘worker’?
– any other contract under which the
individual undertakes to do work or
perform services personally for another
party to the contract. This contract can
be express (in writing or oral) or implied.
But it cannot be a contract where the
other party is a client or customer of the
individual
When must an eligible jobholder be auto-
enrolled?
• from the day the jobholder meets the
qualifying requirements (the automatic
enrolment date – AED)
• employers will need to be aware of
when their employees become eligible
for auto-enrolment
Get in touch if you have any questions or
would like further information.
t +(0)121 237 3992