Policy News Journal - 2012-13

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EMPLOYMENT STATUS – MINICAB DRIVER

11 September 2012

Was a minicab driver an employee where, under his contract, he could work as and when he liked?

No, says the EAT in Knight v Fairway & Kenwood Car Service .

Pinsent Masons reports:

The Claimant was a minicab driver working for Fairway & Kenwood. His written terms provided that, as long as he made weekly rental payments and sent appropriate notifications to the company, he was allowed to work as and when he pleased. He paid his own tax and national insurance and, if registered for VAT, had to account for VAT to HMRC. He left after a disagreement and claimed damages for wrongful dismissal. The employment tribunal found there was no contract of employment as there was no mutuality of obligation between the parties. The EAT, although expressing some criticism of the way the legal test was applied by the employment judge, dismissed the appeal. The EAT said that it was "likely" that the Claimant was employed either throughout a particular shift or from the beginning to end of an individual job, and there was an overarching umbrella contract. But that umbrella contract was not an employment contract. His written terms did not require a minimum or reasonable amount of work (applying the test set out by Langstaff J in Cotswold Development Construction Limited v Williams). Nor was there scope for inferring such an obligation from the fact that the Claimant in fact worked 7 days a week. This meant that there was no jurisdiction to hear the Claimant's claim.

ARE SOME MORE EQUAL THAN OTHERS?

11 September 2012

This week four landmark cases will be argued at the European Court of Human Rights, the outcome of which will have a bearing in the UK of individuals' right to extend their religious beliefs into the workplace.

Workplace Law has published the following summary:

Two of the cases are centred around the right to wear religious symbols, in these instances crucifixes, where this is at odds with the company’s dress code and the other two involve a register who refused to perform civil partnerships and a relationship counsellor who would not offer counselling to same-sex couples. All four cases have already been through internal disciplinary channels and the UK courts and were unsuccessful which is why they have now taken their claims to Strasbourg. All four applicants invoke article 9 (freedom of religion) and article 14 (prohibition of discrimination) of the European convention on human rights in their claims.

They have been backed by the Equality and Human Rights Commission (EHRC) who claim that judges have interpreted the law too narrowly in religion or belief discrimination claims.

Whatever judgements are reached the ramifications either way will be far-reaching and will mark a watershed moment in social equality.

CIPP Policy News Journal

12/04/2013, Page 60 of 362

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