4 Relevant Factors
Significant factors that can be used to distinguish between an employee or self employed
Does the employee use his own tools and equipment or does the employer provide them. If worker is using his own tools then it will be considered as an employee:
- Does the alleged employer have the power to select or appoint its employees, and may it dismiss them?
- Payment of salary is a fair indication of there being a contract of employment.
- Working for a number of different people is not necessarily a sign of self-employment. A number of assignments may be construed as ‘a series of employment.
Significance of distinction between employee and independent contractor is given below:
|Social security||Employer must pay class 1 secondary NICEmployee made contribution in class 1 primaryThere is also difference in sick pay leaves||Independent contractor pay both class 2 and 4 contribution|
|Employment Protection||There is legislation which provide protection and benefits upon employees,i.eMinimum period of noticeRemedies for unfair dismissal||Independent contractor does not have such rights|
|Tortious act||Employer are generally liable for the tortious acts of employees, commited in the course of employment||In this case liability is severely limited unless there is strict liability|
|Implied terms||There are rights and duties implied by statute for employers and employees. this will affect thing such as copy right and patent||These implied right and duties does not apply to such an extent|
|Health and safety legislation||Employers has significant duties of health and safety for employees under common law and legislation governing employers||Common law and much of the legislation governing employer also apply in this case|
5 Employment Contract
An employment contact is as simple straight forward agreement.
Just like other contract, employment contract must have four elements of offer, acceptance consideration and legal framework. It may express or implied or it can be oral or written.
5.1 Implied Term
Implied terms usually arise out of custom and practice in a certain profession and industry.
5.2 Requirements of implied terms
- The term must be reasonable, certain and clear
- It represents the willingness of both parties
- The relying party must have knowledge of the custom and practice.