Briefcase on

Employment Law
Second Edition

Cavendish
Publishing
Limited

London • Sydney
Titles in the series:

Commercial Law
Company Law
Constitutional and Administrative Law
Contract Law
Criminal Law
Employment Law
Equity and Trusts
European Community Law
Evidence
Family Law
Land Law
Tort Law
 Briefcase on
Employment Law
Second Edition

Charles Barrow, BSc, LLM, Cert Ed, Barrister,

Senior Lecturer in Law, University of North London

John Duddington, LLB, Barrister,

Director of Legal Studies, Worcester Law School,
Worcester College of Technology

Cavendish
Publishing
Limited

London • Sydney
Second edition first published in Great Britain 2000 by Cavendish Publishing
Limited, The Glass House, Wharton Street, London WC1X 9PX, United
Kingdom
Telephone: +44 (0) 20 7278 8000 Facsimile: +44 (0) 20 7278 8080
E-mail: [email protected]
Visit our Home Page on http://www.cavendishpublishing.com

© Barrow, C and Duddington, JG 2000

First edition 1998
Second edition 2000

All rights reserved. No part of this publication may be reproduced, stored in

a retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, recording, scanning or otherwise, except under
the terms of the Copyright Designs and Patents Act 1988 or under the terms
of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court
Road, London W1P 9HE, UK, without the permission in writing of the
publisher.

British Library Cataloguing in Publication Data

Barrow, Charles
Briefcase on employment law—2nd ed
1 Labour laws and legislation—Great Britain
I Title II Duddington, John G III Employment law
344.4'1'01

ISBN 1 85941 544 X

Printed and bound in Great Britain

Preface

The success of the Briefcase Series has shown that there is a need for books
which give greater detail about cases than are found in textbooks, yet, at the
same time, are more succinct than casebooks. We hope that we have achieved
this aim with this particular addition to the Briefcase Series.
Employment law is very largely a creation of both statute and, increasingly,
EC legislation; accordingly, it has been necessary to give greater extracts
from legislative provisions than are found in some other books in this series.
A collection of cases on employment law with nothing more would give a
very misleading picture. We have also included some questions at various
points, which are designed to stimulate thought and discussion.
Every preface to a book on employment law points out how quickly the
subject is changing and we must do so here, both to protect ourselves against
any charge of being dated and also to stimulate students into keeping up to
date with new developments. For example, the preface to the first edition
referred to the imminent publication of the White Paper, Fairness at Work,
which has now resulted in the Employment Relations Act 1999. In addition,
since the publication of the first edition in 1998, employment case law has
developed considerably in virtually all of the areas covered by this book.
The great joy when writing a preface is the opportunity it gives to thank
those without whose help a book would never have been written. John
Duddington would like to thank his two children, Mary and Christopher,
who have provided constant stimulation and necessary distraction and,
above all, his wife, Anne, for her help and encouragement in this as well as
in so many other projects over many years. Charles Barrow would like to
thank Alan Robertshaw for his assistance in compiling Chapter 5.
It is finally necessary to add that, as is the case with all books written by
co-authors, although we have each been responsible for separate chapters,
we accept liability for the whole.

Charles Barrow
John Duddington
1 March 2000

v
Contents

Preface v
Table of Cases xi
Table of Statutes xxxiii
Table of Statutory Instruments xxxvii
Table of European Legislation xxxix

1 Employee Status
1.1 Statutory definitions 1
1.2 Tests applied by the courts to determine
whether a person is an employee or an
independent contractor 4
1.3 Rights of employees to be provided with a
statement of initial employment particulars 11

2 Terms of the Contract of Employment

2.1 Express terms 17
2.2 Implied terms 17
2.3 Duties of the employer and the employee 23
2.4 Duty of mutual trust and confidence 39
2.5 Doctrine of restraint of trade 42
2.6 Changing the contract of employment 47
2.7 Payment of wages 48

3 Health and Safety at Work

3.1 Liability of the employer under the tort of negligence 53
3.2 Health and Safety at Work Act 1974 59
3.3 Working Time Regulations 1998 65

4 Terminating the Contract

4.1 Termination not involving dismissal 67
4.2 Termination by dismissal 78

5 Unfair Dismissal
5.1 Establishing the reasons for dismissal 93
5.2 Fairness of the dismissal 97
5.3 Time limits 114

vii
B RIEFCASE on Employment Law

6 Redundancy
6.1 Definition of redundancy 119
6.2 Right to claim a redundancy payment 127
6.3 Offer of alternative employment 129
6.4 Redundancy procedures 131

7 Continuity of Employment and Transfer of Undertakings

7.1 Continuity of employment 137
7.2 Transfer of undertakings 143
7.3 The Transfer of Undertakings Regulations
and ‘contracting-out’ 153
7.4 Transfers of undertakings and consultation 158

8 Equal Pay
8.1 Equal Pay Act 1970 161
8.2 European Community law 163
8.3 Meaning of ‘like work’, ‘work rated as equivalent’
and ‘work of equal value’ 165
8.4 Genuine material differences 170
8.5 Area of comparison 178
8.6 Meaning of ‘pay’ for the purpose of the
Equal Pay Act 1970 180
8.7 Remedies 181

9 Discrimination
9.1 Direct discrimination 183
9.2 Indirect discrimination 187
9.3 Discrimination in employment 192
9.4 Exceptions 193
9.5 Vicarious liability and liability for the actions
of a third party 195
9.6 Procedure and proof 197
9.7 Remedies 200
9.8 Discrimination and European Community law 202
9.9 Discrimination on grounds of sexual orientation 207
9.10 Disability Discrimination Act 1995 209

10 Trade Unions and their Members

10.1 Members’ rights and the common law doctrines 215
10.2 Members’ rights and the rule book 217
10.3 Members’ rights and statutory control over discipline 224

viii
 Contents

11 Industrial Action
11.1 Civil liability—the economic torts 229
11.2 Inducing breach of contract 229
11.3 Interference with contract, trade or business 233
11.4 Intimidation 235
11.5 Conspiracy 236
11.6 Inducing breach of a statutory duty 238
11.7 Economic duress 240
11.8 Inducing breach of an equitable obligation 241
11.9 Trade union immunities—the Trade Union
and Labour Relations (Consolidation) Act 1992 241
11.10 Loss of immunity—the Trade Union and
Labour Relations (Consolidation) Act 1992 246

Glossary 257

Index 277

ix
Table of Cases

ABP v TGWU [1989] IRLR 291 251

AM v WC and SPV [1999] IRLR 410 184
APAC v Kirvin Ltd [1978] IRLR 318 135
Abbey National v Formoso [1999] IRLR 222 206
Abdoulaye and Others v Regie Nationale
des Usines Renault (1999) unreported 181
Abernethy v Matt, Hay and
Anderson [1974] ICR 323 97
Adams v Derby City Council [1986] IRLR 163 96
Addis v Gramophone Co [1909] AC 488 40, 41
Alboni v Ind Coope Retail Ltd [1998] IRLR 131 95
Alcan Extrusions v Yates [1996] IRLR 327 81
Ali v Christian Salvesen Food Services Ltd
[1997] 1 All ER 721; [1997] ICR 25 18
Allcock v Chief Constable of South Yorkshire Police
[1992] AC 310 54
Allen v Flood [1898] AC 1 234
Allen and Others v Amalgamated
Construction Co Ltd (1999) The Times, 10 December, ECJ 149
Amber Size and Chemical Co v Menzel [1913] 2 Ch 239 34
Anderson v Pringle of Scotland Ltd [1998] IRLR 64 21
Aparau v Iceland Frozen Foods plc [1996] IRLR 119 87
Arnold v Beecham Group Limited [1982] IRLR 307 167
Askew v Governing Body of Clifton Middle
School and Others [1999] IRLR 708 149
Associated British Ports
v TGWU [1989] IRLR 291; [1989] IRLR 399 240, 245
Associated Newspapers Group Ltd v Wade [1979] IRLR 201 239
Atkinson (Octavius) & Sons v Morris [1989] 111

BBC v Hearn [1977] IRLR 273 243

BBC v Ioannou [1975] ICR 267 82
BBC v Kelly-Phillips [1998] ICR 1; [1998] IRLR 294 82
BSG Property Services v Tuck [1996] IRLR 134 155
Baker v Cornwall County Council [1990] IRLR 194 200
Balgobin v London Borough of Tower
Hamlets [1987] IRLR 401 197

xi
B RIEFCASE on Employment Law

Bank of Credit and Commerce International

v Ali (No 3) [1999] IRLR 508 40, 87, 88
Barber v Guardian Royal Exchange
Assurance Group [1990] IRLR 240 180,181
Barber v RJB Mining (UK) Ltd [1998] IRLR 308 65
Barclay v City of Glasgow
District Council [1983] IRLR 313 69
Barretts and Baird v IPCS [1987] IRLR 3 239
Barry v Midland Bank plc [1999] 3 All ER 974;
[1999] IRLR 581 177
Bartholomew v London Borough of
Hackney [1999] IRLR 246 28
Bass Leisure Ltd v Thomas [1994] IRLR 104 121
Baynton v Saurus General Engineers [1999] IRLR 604 212
Bell v Lever Bros Ltd [1932] AC 161 31
Bentley Engineering Co Ltd v Crown [1976] IRLR 146 140
Bents Brewery Co Ltd v Hogan [1945] 2 All ER 570 243
Benveniste v University of Southampton [1989] IRLR 122 178
Bernadone v Pall Mall Services Group
Ltd and Others [1999] IRLR 617 149
Berriman v Delabole Slate Ltd [1985] IRLR 305 151
Berwick Salmon Fisheries Co Ltd
v Rutherford [1991] IRLR 203 140
Bhatt v Chelsea and Westminster
Health Care Trust [1997] IRLR 660 82
Bilka-Kaufhaus GmbH v Weber von Hartz
[1986] IRLR 317 172, 173, 177
Birmingham Midshires Building Society
v Horton [1991] ICR 648 118
Blackall v National Union of Foundary
Workers (1923) 39 TLR 431 218
Blyth v The Scottish Liberal Club [1983] IRLR 245 89
Bodha v Hampshire Area Health Authority [1982] ICR 200 115
Bonsor v Musicians’ Union [1956] AC 104 217
Booth and Others v United States of
America [1999] IRLR 16 141
Bork (P) International (In Liquidation) v Foreningen
of Arbejdsledere [1989] IRLR 41 144, 150
Botzen v Rotterdamsche Droogdok
Maatschappij BV [1985] ECR 519 148
Bowater v Rowley Regis Borough
Council [1944] 1 All ER 465 59
Bracebridge Engineering Ltd v Darby [1990] IRLR 3 85, 184

xii
 Table of Cases

Bradley v NALGO [1991] IRLR 159 226

Breach v Epsylon Industries Ltd [1976] IRLR 180 24
Breen v AEU [1971] 2 QB 175; 1 All ER 1148 216
Brimelow v Casson [1924] 1 Ch 302 233
British Coal Corp v Smith [1996] IRLR 404 179
British Fuels Ltd v Meade and Baxendale
[1999] 2 AC 252; [1998] 4 All ER 609; [1998] IRLR 706 158
British Gas plc v McCarrick [1991] IRLR 305 99
British Home Stores Ltd v Burchell [1978] IRLR 379 98, 99
British Labour Pump Co Ltd v Byrne [1979] IRLR 94 110
British Leyland (UK) Ltd v Ashraf [1978] IRLR 330 71
British Railways Board v Jackson [1994] IRLR 236 103
British Railways Board v NUR [1989] IRLR 349 252
Bromley and Others
v H & J Quick Ltd [1988] IRLR 249 167
Brooke Lane Finance Co v Bradley [1988] IRLR 283 150
Brown v Knowsley Borough Council [1986] IRLR 102 83
Brown v Merchant Ferries Ltd [1998] IRLR 682 41, 86
Brown v Rentokill Ltd [1998] IRLR 445 205, 206
Browning v Crumlin Valley
Collieries Ltd [1926] 1 KB 522 23
Budgen & Co v Thomson [1976] IRLR 174 106
Burrett v West Birmingham
Health Authority [1994] IRLR 7 185
Burroughs Machines Ltd
v Timmoney [1977] IRLR 404 84
Burton v De Vere Hotels [1996] IRLR 596 196
Burton, Allton & Johnson Ltd
v Peck [1975] IRLR 87; [1975] ICR 193 72
Buxton v Equinox Design Ltd [1999] IRLR 158 209
Byrne v BOC Ltd [1992] IRLR 505 105

CBS Songs Ltd v Amstrad Electronics [1988] Ch 61 239

CRE v Dutton [1989] IRLR 8 186
Cadoux v Central Regional Council [1986] IRLR 131 21
Cain v Leeds Health Authority [1990] IRLR 168 102
Calder and Another v Rowntree Mackintosh
Confectionery Ltd [1993] IRLR 212 167, 170
Calendonia Bureau Investment and Property
v Caffrey [1998] ICR 603; [1998] IRLR 110 206
Caledonian Mining Co Ltd v Bassett [1987] IRLR 165 68
Camden and Islington Community Services
NHS Trust v Kennedy [1996] IRLR 387 118

xiii
B RIEFCASE on Employment Law

Campbell v Secretary of State

for Scotland [1992] IRLR 264 99
Capital Foods Retail Ltd v Corrigan [1993] IRLR 430 117
Capper Pass v Lawton [1976] IRLR 366 165
Carmichael v National Power plc [1999] 1 WLR 2042 8
Caruana v Manchester Airport plc [1996] IRLR 379 205
Cassidy v Minister of Health [1951] 2 KB 343 4, 5
Catamaran Cruisers Ltd v Williams [1994] IRLR 386 114
Chakki v United Yeast Co [1982] ICR 141 77
Chapman v Goonvean and Rostowrack
China Clay Co Ltd [1973] ICR 310 123
Chapman v Simon [1994] IRLR 124 200
Charles Early and Marriott (Witney) Ltd
v Smith and Ball [1977] IRLR 123 178
Chattopadhyay v Headmaster of
Holloway School [1981] IRLR 487 200
Cheall v APEX [1983] IRLR 213 216, 217
Chessington World of Adventures v Reed
[1997] IRLR 556 208
Chief Constable of Lincolnshire v Stubbs [1999] IRLR 81 195
Chubb Fire Security Ltd v Harper [1983] IRLR 311 112, 113
Clark v Civil Aviation Authority [1991] IRLR 412 105
Clark v Oxfordshire Health Authority [1998] IRLR 125 8
Clark v TDG Ltd [1999] IRLR 318 211
Clarke Chapman-John Thompson Ltd
v Walters [1972] ICR 83 142
Clarke v Chadburn [1984] IRLR 350 222
Clarke v Trimco Group Ltd [1993] IRLR 148 97, 106
Clarkes of Hove Ltd v Bakers Union [1978] ICR 1077 136
Clay Cross (Quarry Services) Ltd
v Fletcher [1979] IRLR 361 175
Clifford v Union of Democratic Mineworkers
[1991] IRLR 518 11
Coker and Osamor v Lord Chancellor [1999] IRLR 396 190
Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647 23
Collison v BBC [1998] IRLR 238 141
Coltman v Bibby Tankers Ltd [1987] 3 All ER 1068 58
Commission of the European Communities
v United Kingdom [1982] IRLR 333 168, 169
Condor v Barren Knights Ltd [1966] 1 WLR 87 73
Connex South Eastern Ltd v RMT [1999] IRLR 249 251
Construction Industry Training Board
v Leighton [1978] IRLR 60 16

xiv
 Table of Cases

Cook v Thomas Linnell & Sons [1977] IRLR 132 108

Courtaulds Ltd v Andrew [1979] IRLR 84 84
Courtaulds Northern Spinning Ltd
v Sibson and TGWU [1988] IRLR 305 17
Cowell v Quilter Goodison Co Ltd and QC
Management Services Ltd [1989] IRLR 392 147
Cowen v Haden Ltd [1983] ICR 1 125–27
Crawford v Swinton Insurance Brokers Ltd [1990] IRLR 42 152
Credit Suisse First Boston (Europe) Ltd
v Lister (1998) unreported 151
Cress v Royal London Insurance [1998] IRLR 245 81, 83
Cresswell v Board of Inland Revenue [1984] ICR 508 30
Crofter Handwoven Harris Tweed v Veitch [1942] AC 435 236
Cunard Co Ltd v Stacey [1955] 2 LR 247 238
Cuthbertson v AML Distributors [1975] IRLR 228 16

Davis Contractors Ltd v Fareham Urban

District Council [1956] AC 696 74
Davies v Presbyterian Church of Wales [1986] IRLR 194 10
Davis v New England College of Arundel [1977] ICR 6 9
Dawkins v Department of the Environment
[1993] IRLR 284 186
Day v T Pickles Farms Ltd [1999] IRLR 217 88
De Souza v Automobile Association [1986] ICR 514 192
De Souza v London Borough of Lambeth
[1997] IRLR 677 202
Dedman v British Building and Engineering
Appliances Ltd [1974] ICR 53 117
Dekker v VJV Centrum [1991] IRLR 27 204
Delaney v Staples [1992] IRLR 191 49
Denco v Joinson [1991] IRLR 63 90, 106
Devis (W) & Sons Ltd v Atkins [1977] AC 931 93–95
Devonald v Rosser & Sons [1906] 2 KB 728 23
Dimbleby & Sons v NUJ [1984] IRLR 67 233
Dimskal Shipping Co v ITWF [1990] IRLR 102 240
Dines and Others v Initial Health Care Services
and Another [1994] IRLR 336 154, 157
Diocese of Hallam v Connaughton [1996] IRLR 505 165
Dixon v BBC [1979] IRLR 114 82
Dobie v Burns International Security
Services (UK) Ltd [1984] IRLR 329 114
Doble v Firestone Tyre Co Ltd [1981] IRLR 300 80
Dryden v Greater Glasgow Health Board [1992] IRLR 469 18
Duffy v Yeomans & Partners [1994] IRLR 642 110

xv
B RIEFCASE on Employment Law

Dugdale v Krafts Foods Ltd [1976] IRLR 368 166

Duncan Web Offset (Maidstone) Ltd
v Cooper [1995] IRLR 633 149

ECM (Vehicle Delivery Service) Ltd

v Cox and Others [1999] IRLR 559 157
East Berkshire Health Authority
v Matadeen [1992] IRLR 336 103
East Lindsey District Council
v Daubney [1977] ICR 556; [1977] IRLR 187 107
East Sussex County Council v Walker [1972] ITR 280 67
Eaton Ltd v Nuttall [1977] IRLR 71 167
Eclipse Blinds Ltd v Wright [1992] IRLR 133 107
Edwards v National Coal Board [1949] 1 KB 704 60
Edwards v SOGAT [1971] Ch 354 215, 217
Edwards v Surrey Police [1999] IRLR 456 88
Egg Stores Ltd v Leibovici [1976] IRLR 376 74, 76
Eke v Commissioners of Customs
and Excise [1981] IRLR 334 192
Ely v YKK Fasteners Ltd [1994] ICR 164 70
Emerald Construction Co Ltd
v Lowthian [1966] 1 WLR 691 230
Enderby v Frenchay Health Authority [1993] IRLR 591 174, 176
Esterman v NALGO [1974] ICR 625 220, 221
Etam plc v Rowan [1989] IRLR 150 195
Evans v Elementa Holdings Ltd [1982] IRLR 143 113
Evesham v North Hertfordshire Health Authority
and Secretary of State for Health [1999] IRLR 155 174
Express & Echo Publications Ltd v Tanton
[1999] ICR 693; IRLR 369 6
Express Newspapers Ltd v Keys [1980] IRLR 247 244
Express Newspapers Ltd v MacShane [1979] ICR 210 242

FDR v Holloway [1995] IRLR 400 111

Faccenda Chicken Ltd v Fowler [1986] IRLR 69 33
Fairfield Ltd v Skinner [1992] IRLR 4 50
Falconer v ASLEF and NUR [1986] IRLR 331 231
Ferguson and Others v Prestwick Circuits Ltd
[1992] IRLR 267 110
Ferguson v John Dawson and Partners
(Contractors) Ltd [1976] 3 All ER 817 8
Fitzgerald v Hall Russell & Co Ltd [1969] 3 All ER 1140 139
Flack v Kodak Ltd [1986] IRLR 258 140

xvi
 Table of Cases

Ford v Warwickshire County Council [1983] IRLR 126 139–41

Foreningen af Arbejdsledere i Danmark
v Daddy’s Dance Hall [1998] IRLR 315 151
Forster v Suggett (1918) 35 TLR 87 42
Foster v British Gas [1990] IRLR 354; [1991] IRLR 268 204
Foss v Harbottle [1843] 69 ER 89 221, 222
Frames Snooker Centre v Boyce [1992] IRLR 472 102
Fransisco Hernandez Vidal SA
v Gomez Perez and Others [1999] IRLR 132 157
French v Barclays Bank plc [1999] IRLR 4 41
Fuller v Lloyds Bank [1991] IRLR 336 106
Futty v D & D Brekkes Ltd [1974] IRLR 130 79

Gair v Bevan Harris Ltd [1983] IRLR 386 108

Garland v British Rail Engineering [1982] IRLR 111 181
Gascol Conversions v Mercer [1974] IRLR 155 15
General Billposting v Atkinson [1909] AC 118 47
General of the Salvation Army
v Dewsbury [1984] ICR 498 138
Gibson v East Riding of Yorkshire Council
[1999] ICR 622; IRLR 358 65
Gillespie v Northern Health and
Social Services Board [1996] IRLR 214 181
Glasgow City Council v Smith [1987] IRLR 326 97
Glasgow City Council v Zafar [1998] IRLR 36 200
Goodwin v The Patent Office [1999] IRLR 4 209
Goring v British Actors Equity
Association [1987] IRLR 122 216
Gouriet v UPW [1978] AC 435 238, 239
Governing Body of the Northern Ireland Hotel and
Catering College v NATFHE [1995] IRLR 83 136
Grant v South West Trains Ltd [1998] IRLR 206 208
Greenaway Harrison Ltd v Wiles [1994] IRLR 380 87
Greenhall Whitley plc v Carr [1985] IRLR 290 95
Greenwood v British Airways plc [1999] IRLR 600 210
Greer v Sketchleys Ltd [1979] IRLR 445 44, 45
Grieg v Insole [1978] 1 WLR 302 216
Griffin v London Pension Fund
Authority [1993] IRLR 248 180
Griffin v South West Water Services Ltd [1995] IRLR 15 135
Grootcon (UK) Ltd v Keld [1984] IRLR 302 97
Gwynedd County Council v Jones [1986] ICR 833 186

xvii
B RIEFCASE on Employment Law

HM Prison Service v Johnson [1997] ICR 275 201

Haddon v Van Den Bergh [1999] IRLR 672 99, 100, 101, 114
Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 102
Hadmor Productions Ltd v Hamilton [1981] ICR 690 235
Halfpenny v Ige Medical Systems Ltd [1999] IRLR 177 80, 206
Hall (Inspector of Taxes) v Lorimer [1994] IRLR 171 5, 6
Hampson v Department of Education
and Science [1989] ICR 179 190
Handels v Dansk Handel [1997] IRLR 643
Handels-OG Kontorfunktionaerernes
Foribund i Danmark v Dansk Arbejdsgiverforening
(acting for Danfoss) [1989] IRLR 532 172
Hanley v Pease and Partners Ltd [1915] 1 KB 698 23
Hare v Murphy Brothers [1974] ICR 603 76–78
Harman v Flexible Lamps Ltd [1980] IRLR 418 75
Harrington v Kent County Council [1980] IRLR 353 77
Harvey v RG O’Dell Ltd [1958] 1 All ER 657 31
Haseltine Lake & Co v Dowler [1981] IRLR 25 80
Hayes v Malleable Working
Men’s Club [1985] IRLR 367 204
Hayward v Cammell Laird
Shipbuilders Ltd [1988] IRLR 257 168
Hedley Byrne v Heller [1964] AC 465 28
Hellyer Brothers v Atkinson
and Dickinson [1994] IRLR 88 68
Herbert Morris v Saxelby [1916] 1 AC 688 42
Heron v Citylink-Nottingham [1993] IRLR 372 110
Hertz v Aldi Marked K/S [1991] IRLR 31 204, 206
Hicking v Basford Group [1999] IRLR 764 182
High Table Ltd v Horst [1997] IRLR 513 121
Hill Ltd v Mooney [1981] IRLR 258 87
Hilton Hotels (UK) Ltd v Protopapa [1990] IRLR 316 86
Hilton Hotels Ltd v Kaissi [1994] IRLR 270 81
Hindes v Supersine Ltd [1979] ICR 517 130
Hindle v Percival Boats Ltd
[1969] 1 WLR 174; [1969] 1 All ER 836 121
Hivac Ltd v Park Royal Scientific
Instruments Ltd [1946] ICR 169 32
Hogg v Dover College [1990] ICR 39 81
Hollister v NFU [1979] ICR 542 114
Home Counties Dairies v Skilton [1970] 1 WLR 526 42, 44
Home Office v Holmes [1984] IRLR 299 188
Hong Kong Fir Shipping Co v Kawasaki
Kischen Kaisha [1962] 2 QB 26 78

xviii
 Table of Cases

Hopkins v NUS [1985] IRLR 157 222

Horsey v Dyfed County Council [1982] IRLR 395 185
Hotson v Wisbech Conservative Club [1984] IRLR 422 96
Housing Services v Cragg [1997] IRLR 380 82
Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348 54
Humber and Birch v University of Liverpool
[1985] IRLR 165 72
Huntley v Thornton [1957] 1 WLR 321 237
Hurley v Mustoe [1981] ICR 490 185
Hussain v Elonex plc [1999] IRLR 417 106
Hussman Manufacturing v Weir [1998] IRLR 288 51

Iceland Frozen Foods v Jones [1982] IRLR 439 100, 101

Igbo v Johnson Matthey Ltd [1986] IRLR 215 71–73
Imperial Chemical Industries
v Shatwell [1964] 2 All ER 999 59
Insitu Cleaning Co Ltd v Heads [1995] IRLR 4 184
International Sports Ltd
v Thomson [1980] IRLR 340 108
Ironmonger v Movefield Ltd [1988] IRLR 461 83
Irving v Post Office [1987] IRLR 289 195
Isle of Wight Tourist Board
v Coombes [1976] IRLR 413 25, 87

J and J Stern v Simpson [1983] IRLR 52 79

Jack Allen (Sales and Services) Ltd
v Smith [1999] IRLR 22 47
James v Eastleigh Borough Council [1990] IRLR 288 183
James v Hepworth & Grandage Ltd [1968] 1 QB 94 58
Jean Sorelle Ltd v Rybak [1991] IRLR 153 116
Jenkins v Kingsgate (Clothing Productions)
Limited [1981] IRLR 228 171
John Brown Engineering Ltd v Brown [1997] IRLR 90 111
Johnson v Nottinghamshire Combined Police
Authority 1974] ICR 170 123, 124
Johnson v Peabody Trust [1996] IRLR 387 125
Johnson v Unisys Ltd [1999] ICR 809 41
Johnstone v Bloomsbury Area Health
Authority [1991] IRLR 118 26, 30, 55
Jones v Associated Tunnelling Co Ltd [1981] IRLR 477 16
Jones v Mid Glamorgan County Council [1997] IRLR 685 68
Jones v Tower Boot Co Ltd
[1997] IRLR 168; [1997] 2 All ER 406 195
Jones v University of Manchester [1993] IRLR 218 189

xix
B RIEFCASE on Employment Law

Katsikas v Konstantinidis [1993] IRLR 179 147

Kelman v Oram [1983] IRLR432 114
Kenny v Hampshire Constabulary [1999] IRLR 76 213
Kenny v South London Manchester
College [1993] IRLR 265 156, 157
Kent County Council v Gilham [1985] IRLR 18 114
Kent Management Services Ltd
v Butterfield [1992] IRLR 394 50
King v Eaton Ltd [1996] IRLR 116 111
King v Great Britain China Centre [1991] IRLR 513 198
Kuickly Shrive [1999] IRLR 55 207
Kwik Fit (GB) Ltd v Lineham [1992] IRLR 156 69

Langston v Amalgamated Union of Engineering

Workers (No 1) [1974] 1 All ER 980 24
Langston v Amalgamated Union of Engineering
Workers (No 2) [1974] IRLR 182 24
Lasertop Ltd v Webster [1997] IRLR 498 195
Lassman and Others v Secretary of State for
Trade and Industry (1999) unreported 141
Latimer v AEC Ltd [1953] 2 All ER 449 55, 61
Law Debenture Trust Corp v Ural Caspian Oil
Corp Ltd [1993] 1 WLR 138 241
Lawrence and Others v Regent Office Care Ltd
and Others [1999] ICR 654; IRLR 148 180
Laws v London Chronicle [1959] 1 WLR 698 88
Ledernes Hovedorganisation (acting for Rygaard)
v Dansk Arbejdsgiverforening (acting for Stro
Molle Akustik A/S) [1996] IRLR 51 155, 156
Lee v Chung and Shun Sing Construction and
Engineering Co Ltd [1990] IRLR 236 9, 10
Lee v Showmen’s Guild [1952] 2 QB 329 219
Leicester University v A [1999] IRLR 352 184
Leicester University Students’ Union
v Mahomed [1995] ICR 270 200
Leigh v NUR [1970] Ch 326 219
Lesney Products & Co Ltd v Nolan [1977] IRLR 77 123, 124
Leverton v Clwyd County Council [1989] IRLR 28 178, 179
Levez v TH Jennings (Harlow Pools) Ltd [1999] IRLR 36 182
Lewis v Motorworld Garages Ltd [1985] IRLR 465 85
Lewis Woolf Ltd v Corfield [1997] IRLR 432 206
Links (A) & Co v Rose Ltd [1991] IRLR 353 108
Lister v Romford Ice and Cold Storage Co Ltd
[1957] 1 All ER 125 30

xx
 Table of Cases

Litster v Forth Dry Dock and Engineering Co Ltd

[1989] IRLR 161 149, 150, 205
Littlewoods v Harris [1977] 1 WLR 1472 43, 45
Lloyd v Brassey [1969] 1 All ER 382 143
Lloyd v Taylor Woodrow Construction [1999] IRLR 782 111
Lloyds Bank v Secretary of State for Employment
[1979] IRLR 41 140, 141
Lock v Cardiff Railway Co Ltd [1998] IRLR 358 103,106
Logan Saltan v Durham County Council [1989] IRLR 99 72
London Borough of Lambeth v CRE [1990] IRLR 231 194
London Fire and Civil Defence Authority
v Betty [1994] IRLR 384 108
London International College v Sen [1992] IRLR 292 116
London Transport Executive v Clarke [1981] IRLR 166 70, 81
London Underground Ltd v Edwards [1998] IRLR 364 189
London Underground v Noel [1999] IRLR 621 118
London Underground Ltd v NUR [1989] IRLR 341 251
London Underground v RMT [1995] IRLR 636 252
Longley v NUJ [1987] IRLR 109 221
Lonhro Ltd v Shell [1982] AC 173 239
Lonhro v Fayed [1991] 3 All ER 303 237
Loughran and Kelly v Northern Ireland Housing
Executive [1998] IRLR 593 2
Lovie Ltd v Anderson [1999] IRLR 164 99
Lynock v Cereal Packaging Ltd [1988] IRLR 510 108

McMeechan v Secretary of State for Employment

[1995] IRLR 461 10
McAlwane v Boughton Estates [1973] ICR 470 71
Macari v Celtic Football and Athletic Co Ltd
[1999] IRLR 787 41
Macarthys Ltd v Smith [1980] ICR 672 164
McCory v Magee [1983] IRLR 414 97
McGrath v Rank Leisure Ltd [1985] IRLR 323 152
McInnes v Onslow Fare [1978] 1 WLR 1520 216
MacLelland v NUJ [1975] ICR 116 219
McNeil v Charles Grimm Ltd [1984] IRLR 179 87
McVitae v Unison [1996] IRLR 33 219
Machine Tool Industry Association
v Simpson [1988] IRLR 212 115
Maidment v Cooper Co (Birmingham) Ltd
[1978] IRLR 462 167
Malik v Bank of Credit and Commerce International
SA (In Liquidation) [1997] 3 All ER 1 39–41

xxi
B RIEFCASE on Employment Law

Mandla v Lee [1983] IRLR 209 186

Market Investigations v Minister of Social
Security [1969] 2 QB 173 5, 9
Marleasing SA v La Comercial Internacional de
Alimentacion [1992] 1 CLMR305 205
Marley (UK) Ltd v Anderson [1994] IRLR 152 115
Marley v Forward Trust Group Ltd [1986] IRLR 369 21
Marriot v Oxford Co-op Society [1970] 1 QB 186 84
Marshall v Harland Woolf [1972] ICR 101 74
Marshall v Southampton and South West Hampshire
Area Health Authority [1986] 1 IRLR 140 164, 203
Marshall v Southampton and South West Hampshire
Health Authority (No 2) [1994] IRLR 445 202
Martin v MBS Fastening Ltd [1983] IRLR 198 68
Mason v Provident Clothing and
Supply Co Ltd [1913] AC 724 42
Massey v Crown Life Assurance Co [1978] 1 WLR 676 9
Meade v Haringey Borough Council [1979] 2 All ER 1016 239
Meade-Hill v British Council [1995] IRLR 478 190
Medhurst v NALGO [1990] ICR 687 226
Meer v London Borough of Tower Hamlets [1988] IRLR 399 189
Melon v Hector Powe Ltd [1980] IRLR 477 143
Merckx and Neuhuys v Ford Motor Co Belgium
[1996] IRLR467 156
Merckx v Ford [1996] IRLR 499
Mercury Communications
v Scott-Garner [1983] IRLR 494 244
Merkur Island Shipping Corp
v Laughton [1983] IRLR 218 230, 234
Metall und Rohstoff AG
v Donaldson Inc [1989] 3 All ER 14 241
Michael Peters Ltd v Farnfield [1995] IRLR 190 148
Miles v Wakefield Metropolitan District Council
[1987] IRLR 193 22
Millbrook Ltd v McIntosh [1981] IRLR 309 87
Ministry of Defence v Cannock [1994] IRLR 509 202
Mitchell v Arkwood Plastics (Engineering) Ltd
[1993] IRLR 471 108
Mogul Steamship Co v McGregor, Gow & Co
[1898] QB 598 236
Monie v Coral Racing Ltd [1981] ICR 109 94
Monsanto plc v TGWU [1986] IRLR 406 253
Moon v Homeworthy Furniture
(Northern) Ltd [1977] ICR 177 119

xxii
 Table of Cases

Morley v CT Morley Ltd [1985] ICR 499 72

Morris Angel Ltd v Hollande [1993] IRLR 169 150
Morrish v Henlys (Folkestone) Ltd
[1973] ICR 482; [1973] 2 All ER 137 29
Morse v Wiltshire County Council [1998] IRLR 352 213
Mugford v Midland Bank plc [1997] IRLR 208 111
Murray and Another v Foyle Meats Ltd [1999] ICR 827 126, 127

NAAFI v Varley [1977] 1 WLR 149 171

NACODS v Gluchowski [1996] IRLR 252 228
NALGO v Killorn [1990] IRLR 462 226
Nagle v Fielden [1966] 2 QB 633 215, 216
Nagarajan v London Regional Transport [1999] IRLR 572 198
National Coal Board v Galley [1958] 1 WLR 16 20
National Coal Board v Sherwin [1978] IRLR 122 166
National Vulcan Engineering Group Ltd
v Wade [1978] ICR 800; [1978] IRLR 25 171, 172
Neary v Dean of Westminster [1999] IRLR 288 91
Nelson v BBC [1977] ICR 649; [1979] IRLR 346 126
Nethermere (St Neots) Ltd v Taverna and
Gardiner [1984] IRLR 240 7
Newham Borough Council v NALGO [1993] ICR 189 252
Nimz v Freie und Hansestadt Hamburge
[1991] IRLR 222 172
Nokes v Doncaster Amalgamated Colleries Ltd
[1940] AC 1014 143
Noone v North West Thames Regional Health
Authority [1988] IRLR 195 200
Nordenfelt v Maxim Nordenfelt Guns and
Ammunition Co Ltd [1894] AC 535 42
Norris v Southampton City
Council [1982] IRLR 141 77
North Riding Garages Ltd v Butterwick [1967] 2 QB 56 122
Northern Joint Police Board v Power [1997] IRLR 610 186
Notcutt v Universal Equipment Co [1986] IRLR 218 75

O’Brien v Associated Fire Alarms Ltd

[1968] 1 WLR 1916; [1969] 1 All ER 93 120
O’Kelly and Others v Trusthouse
Forte plc [1983] IRLR 369 7
O’Neill v Governors of St Thomas More
School [1996] IRLR 372 197
O’Neill v Simm & Co Ltd [1998] IRLR 233 209

xxiii
B RIEFCASE on Employment Law

Oakley v Labour Party [1988] IRLR 34 114

Orlando v Didcot Power Station Sports and
Social Club [1996] IRLR 262 202
Ottoman Bank v Chakarian [1930] AC 277 29
Owen and Briggs v James [1982] IRLR 502 187

P v Nottinghamshire County Council [1992] IRLR 362 99

P v S and Cornwall County Council [1996] IRLR 347 207, 208
Palmer and Another v Southend-on-Sea
Borough Council [1984] IRLR 119 115
Pape v Cumbria County Council [1991] IRLR 463 56, 57
Paris v Stepney Borough Council [1951] 1 All ER 42 56
Parr v Whitbread plc [1990] IRLR 39 103
Partington v NALGO [1981] IRLR 537 221
Paton Calvert and Co Ltd
v Westerside [1979] IRLR 108 130
Paul v East Surrey District Health
Authority [1995] IRLR 305 102
Pearse v Bradford Metropolitan
Council [1988] IRLR 379 188
Pepper v Webb [1969] 2 All ER 216 84, 89
Perera v Civil Service Commission [1982] IRLR 147 191
Philip Hodges Ltd v Kell [1994] IRLR 568 97
Pickford v ICI plc [1998] IRLR 435 57
Pickstone and Others v Freemans plc [1988] IRLR 357 169
Piggott Brothers & Co v Jackson [1991] IRLR 309 103
Polkey v AE Dayton Services Ltd
[1987] IRLR 503; [1988] ICR 142 110, 132
Porcelli v Strathclyde Regional Council [1986] ICR 564 184
Porter v NUJ [1980] IRLR 404 221
Post Office v Fennell [1981] IRLR 221 102
Post Office v Mughal [1977] IRLR 178 108
Post Office v Roberts [1980] ICR 347 25, 87
Post Office v UCW [1990] IRLR 143 251, 253
Poussard v Spiers [1876] 1 QB 410 73
Premier Motors (Medway) Limited v Total Oil Great
Britain Limited [1984] 1 WLR 377 145
Price v Civil Service Commission [1978] IRLR 3 188
Proctor v British Gypsum Ltd [1992] IRLR 7 102
Prudential Assurance Co v Lorenz (1971) 11 KIR 78 241
Pulmanor Ltd v Cedron [1978] IRLR 303 87

xxiv
 Table of Cases

Quinn v Leathem [1901] AC 495 236

Qureshi v London Borough of
Newham [1991] IRLR 264 199

R v Associated Octel Co Ltd [1996] 4 All ER 846 61

R v Attorney General for Northern Ireland ex p
Burns [1999] IRLR 315 65
R v Birmingham City Council ex p
EOC [1989] IRLR 173 197
R v British Coal Corp ex p Vardy [1993] IRLR 103 135
R v British Steel plc [1995] IRLR 311 62
R v Board of Trustees of the Science
Museum [1993] IRLR 853 62
R v F Howe & Son (Engineers) Ltd [1999] IRLR 434 64
R v Jockey Club ex p Ram Racecourses
Ltd [1993] 2 All ER 225 216
R v Ministry of Defence ex p Smith [1996] IRLR 100 207
R v Secretary of State for Defence ex p
Perkins [1997] IRLR 297 208
R v Secretary of State for Employment ex p Equal
Opportunities Commission and Another
[1994] IRLR 176 173
R v Secretary of State for Employment ex p Seymour
Smith [1995] IRLR 465 173, 189
RMC Roadstone Products Ltd v Jester [1994] IRLR 330 61
RS Components Ltd v RE Irwin [1973] IRLR 239 112
RSPCA v Cruden [1986] IRLR 83 106
Radford v NATSOPA [1972] ICR 484 220, 223
Rainey v Greater Glasgow Health
Board [1987] IRLR 26 175, 176
Rask v Christensen v ISS Kantineservice A/S
[1993] IRLR 133 153
Ratcliffe v North Yorkshire County
Council [1995] IRLR 439 177, 180
Reading v Attorney General [1951] 1 All ER 517 35
Ready Mixed Concrete (South East) Ltd v Minister
of Pensions and National Insurance [1968] 2 QB 497 6, 9
Redmond Stichting (Dr Sophie) v Bartol [1992] IRLR 366 144, 154
Reed & Bull Information Systems Ltd
v Stedman [1999] IRLR 299 184
Rees v Apollo Watch Repairs [1996] ICR 466 206
Reid and Sigrist Ltd v Moss and
Mechanism Ltd [1932] 49 RPC 461 34
Reid v Camphill Engravers [1990] IRLR 268 87

xxv
B RIEFCASE on Employment Law

Reid v Rush and Tomkins Group plc [1989] IRLR 265 58

Reiss Engineering Co Ltd v Harris [1988] IRLR 232 39
Retarded Children’s Society Ltd v Day [1978] IRLR 128 106
Richmond Precision Engineering Ltd
v Pearce [1985] IRLR 179 113, 114
Riley v Tesco Stores Ltd [1980] IRLR 103 116
Robb v Green [1895] 2 QB 315 33
Roberts v Birds Eye Walls Ltd [1994] IRLR 29 181
Robertson v British Gas Corp [1983] IRLR 302 16
Robson v Commissioners of Inland
Revenue [1998] IRLR 186 200
Robinson v British Island Airways Ltd
[1977] IRLR 477; [1978] ICR 304 124, 125
Robinson v Crompton Parkinson Ltd [1978] ICR 401 25, 87
Robinson v Ulster Carpets [1991] IRLR 348 111
Rock Refrigeration Ltd v Jones and
Another [1997] 1 All ER 1 47
Roebuck v NUM (Yorkshire Area) (No 2)
[1978] ICR 678 223
Rolls Royce Motor Cars Ltd v Price [1993] IRLR 203 111
Rookes v Barnard [1964] AC 1129 235, 237
Royal Naval School v Hughes [1979] IRLR 383 106
Royal Society for the Protection of Birds
v Croucher [1984] IRLR 423 98
Ryan v Shipboard Maintenance Ltd [1980] IRLR 16 83

ST v North Yorkshire County Council [1999] IRLR 98 195

Safeway Stores plc v Burrell [1997] IRLR 200 127
Sagar v Ridehalgh & Son Ltd [1931] 1 Ch 310 18
St Basil’s Centre v McCrossan [1991] IRLR 455 117
St John of God (Care Service) Ltd v Brooks [1992] IRLR 346 114
Sanchez Hidalgo and Others v Asociacion de
Servicios Aser and Sociedad Cooperativa
Minerva [1999] IRLR 136 157
Sanders v Ernest A Neale Ltd [1974] ICR 565 128
Sartar v P & O European Ferries [1992] IRLR 211 104
Saunders v Richmond Upon Thames Borough
Council [1977] IRLR 362 193
Scally and Others v Southern Health and Social
Services Board [1991] IRLR 522 25, 39
Schmidt v Austicks Bookshop [1978] ICR 85 185
Schmidt v Spar- und Leihkasse der früheren Ämter
Bordesholm [1994] IRLR 302 154–58

xxvi
 Table of Cases

Schroeder (A) Music Publishing Co Ltd

v Macaulay [1974] 3 All ER 616 46
Schultz v Esso Petroleum Co Ltd [1999] IRLR 488 118
Scorer v Seymour-Johns [1966] 3 All ER 347 46
Scott v Avery (1856) 5 HL Cas 811 219
Scott v Coalite Fuels Ltd [1988] IRLR 131 72
Scott v Formica Ltd [1975] IRLR 104 67
Scottish Midland Co-op Society Ltd
v Cullion (1991) IRLR 26 99
Scully UK Ltd v Lee [1998] IRLR 259 44
Secretary of State for Employment
v ASLEF (No 2) [1972] 2 QB 455 18, 32
Secretary of State for Employment
v Cohen [1987] IRLR 169 138
Secretary of State for Employment
v Spence [1986] IRLR 248 150
Seide v Gillette Industries [1980] IRLR 427 186
Sen v International College [1993] IRLR 7 116
Shawkat v Nottingham City Hospitals
NHS Trust [1999] IRLR 340 127
Sheffield v Oxford Controls Co Ltd [1979] IRLR 133 67
Shepherd (FC) & Co Ltd v Jerrom [1986] IRLR 358 78
Sheriff v Klyne Tugs [1999] IRLR 481 57
Sherrard v AUEW [1973] ICR 421 243
Shields v E Coomes Holdings Ltd [1978] IRLR 263 165
Shirlaw v Southern Foundries [1939] 2 KB 206 17
Sidhu v Aerospace Composite Technology Ltd
[1999] IRLR 683 197
Silvester v National Union of Printing, Bookbinding
and Paper Workers [1966] 1 KIR 679 218
Simmons v Hoover Ltd [1977] ICR 61 129
Sinclair v Neighbour [1967] 2 QB 279 90
Sisley v Britannia Security Systems [1983] IRLR 404 195
Skyrail Oceanic Ltd v Coleman [1981] IRLR 398 185
Slater v Leicestershire Health Authority [1989] IRLR 16 106
Smith v Safeway plc [1996] IRLR 456 185
Snowball v Gardner Merchant [1987] IRLR 397 184
Snoxell v Vauxhall Motors Ltd [1977] IRLR 123 176, 177
Sothern v Franks Charlesly & Co [1981] IRLR 278 69
South Wales Miners’ Federation
v Glamorgan Coal Co [1903] 2 KB 545 233
Sovereign House Security Services Ltd
v Savage [1989] IRLR 115 70

xxvii
B RIEFCASE on Employment Law

Spencer v Gloucestershire County Council

[1985] IRLR 393 130
Spencer v Paragon Wallpapers Ltd [1976] IRLR 373 106
Spijkers v Gebroeders Benedik Abbatoir CV
[1986] ECR 1119 145, 153, 154, 157, 158
Spink v Express Food Group Ltd [1990] IRLR 320 106
Spring v Guardian Assurance plc
[1994] 3 All ER 129; [1994] IRLR 460 27, 39
Square D Ltd v Cook [1992] IRLR 34 53
Square Grip Reinforcement Co Ltd
v MacDonald 1968 SLT 65 232
Staffordshire County Council
v Donovan [1981] IRLR 108 68
Standard Telephone v Yates [1981] IRLR 21 130
Stapley v Gypsum Mines Ltd [1953] 2 All ER 478 59
Stevenson Jordan and Harrison Ltd
v McDonald and Evans [1952] 1 TLR 101 4
Stewart v Cleveland Guest (Engineering)
Ltd [1994] IRLR 440 184
Stoker v Lancashire County Council [1992] IRLR 75 106
Strathclyde Regional Council
v Wallace and Others [1998] 1 WLR 259 172
Sunley Turriff Holdings Ltd
v Thompson [1995] IRLR 184 148
Sutton and Gates v Boxall [1978] IRLR 486 108
Suzen v Zehnacker Gebaudereinigung GmbH
Krankenhausservice [1997] IRLR 255 156, 157
Sweeney v J & S Henderson (Concessions)
Ltd [1999] IRLR 306 141
Sybron Corp v Rochem [1983] IRLR 253 31
Systems Floors (UK) Ltd v Daniel [1981] IRLR 475 15, 16

TGWU v Webber [1990] IRLR 462 226

TSC Europe (UK) Ltd v Massey [1999] IRLR 22 45
Taff Vale Railway Co v ASRS [1901] AC 426 218
Tanks and Drum Ltd v TGWU [1991] IRLR 372 254
Tanner v DT Kean Ltd [1978] IRLR 110 79
Tarling v Wisdom Toothbrushes (1997) unreported 213
Taylor and Foulstone v NUM (Yorkshire Area)
[1984] IRLR 445 222
Taylor v Alidair Ltd [1978] IRLR 82 108
Taylor v Kent County Council [1969] 2 QB 560 129

xxviii
 Table of Cases

Taylor v National Union of Seamen

[1967] 1 All ER 767 223
Taylor v NUM (Derbyshire Area) (No 1) [1984] IRLR 440 221
Taylor v NUM (Derbyshire Area) (No 3) [1985] IRLR 99 221
Taylor v Secretary of State for Scotland [1999] IRLR 362 19
Thibault [1998] IRLR 399 206
Thomas v National Coal Board [1987] IRLR 451 166, 167
Thomas Wragg & Sons Ltd v Wood [1976] ICR 313 130
Thomson (DC) & Co Ltd v Deakin [1952] Ch 646 229, 232
Thomson v Alloa Motor Co Ltd
[1983] IRLR 403 97
Ticehurst v British Telecommunications plc
[1992] IRLR 219 32
Timex Corp v Thomson [1981] IRLR 522 95
Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 231, 233–35
Tottenham Green Under Fives Centre
v Marshall [1989] IRLR 147 194
Tower Hamlets Health Authority
v Anthony [1988] IRLR 331 103
Treganowan v Knee & Co [1975] IRLR 113 114
Trico-Folberth Ltd v Devonshire [1989] IRLR 396 97
Tunnel Holdings Ltd v Woolf [1976] ICR 307 80
Turley v Allders Department Stores Ltd [1980] IRLR 4 204
Turner v London Transport Executive [1977] ICR 952 84

Ulsterbus Ltd v Henderson [1989] IRLR 251 106

Union Traffic Ltd v TGWU [1989] IRLR 127 232
United Bank v Akhatar [1989] IRLR 507 87
United Distillers v Conlin [1992] IRLR 503 101
United Kingdom Atomic Energy Authority
v Claydon [1974] ICR 128 120
Universe Tankships Inc of Monrovia
v ITWF [1982] IRLR 200 240
University College London NHS Trust
v Unison [1999] ICR 204; [1999] IRLR 31, CA 246
University of Nottingham v (1) Eyett (2) The
Pensions Ombudsmen
[1999] 2 All ER 437; [1999] IRLR 87 41

Vaux and Associated Breweries Ltd

v Ward [1968] 3 ITR 385 122
Vicary v British Telecommunications plc
[1999] IRLR 680 210

xxix
B RIEFCASE on Employment Law

Villella v MFI Furniture Centres Ltd

[1999] IRLR 469 76
Vokes Ltd v Bear [1974] ICR 1 111
Vokes Ltd v Heather [1945] 62 RPC 131 33

Wakeman v Quick Corp [1999] IRLR 424 187

Walker v Crystal Palace Football Club [1910] 1 KB 87 4, 5
Walker (JH) v Hussain [1996] IRLR 11 202
Walker v Northumberland County Council
[1995] IRLR 35 54, 55
Wall’s Meat Co v Khan [1979] ICR 52 117
Walmsley v Udec Refrigeration Ltd [1972] IRLR 80 30
Waltons and Morse v Dorrington [1997] IRLR 488 27, 87
Wandsworth London Borough Council
v D’Silva and Another [1998] IRLR 193 19, 47
Wandsworth London Borough Council
v NAS/UWT [1993] IRLR 344 245
Warner Holidays Ltd v Secretary of State for
Social Services [1983] ICR 440 5
Warnes v Cheriton Oddfellows Social Club
[1993] IRLR 58 87
Waters v Commissioner of Police of the
Metropolis [1997] IRLR 589 195
Weathersfield v Sargent [1999] IRLR 94 88, 187
Webb v EMO Air Cargo (UK) Ltd
[1994] IRLR 482 203, 204
Webb v EMO Air Cargo (UK) Ltd (No 2)
[1995] ICR 1021 205
Wessex Dairies Ltd v Smith [1935] 2 KB 80 33
West Midlands Co-operative Society Ltd
v Tipton [1986] IRLR 119 94
West Midlands Transport Executive
v Singh [1988] IRLR 186 198
Western Excavating (ECC) Ltd
v Sharp [1978] 1 All ER 71; [1978] QB 761 84, 87
Westminster County Council v Cabaj [1996] IRLR 399 106
Wetherall Ltd v Lynn [1978] 1 WLR 200 84
Whitbread & Co plc v Mills [1988] IRLR 501 95, 104, 105
Whitbread plc v Thomas [1988] IRLR 43 103
White v Kuzych [1951] AC 585 222–23
White v Reflecting Roadstuds Ltd [1991] IRLR 331 87
White and Others v Chief Constable of
South Yorkshire Police and Others
[1999] 1 All ER 1; [1999] IRLR 110 54

xxx
 Table of Cases

Whitehouse v Chas A Blatchford & Sons Ltd [1999] IRLR 492 152
Williams and Clyde Coal Co Ltd v English [1938] AC 57 53
Williams v Compair Maxam Ltd
[1982] IRLR 83; [1982] ICR 156 109, 131
Williams v Watsons Coaches [1990] IRLR 164 76
Wilson v Racher [1974] ICR 428; [1974] IRLR 114 89
Wilson v Ethicon [2000] IRLR 4 100, 101, 114
Wilson and Others v St Helens Borough Council
[1998] IRLR 706; [1998] 4 All ER 609 158
Wiltshire County Council v NATFHE and Guy
[1980] IRLR 198 82
Wiluszynski v London Borough of
Tower Hamlets [1989] IRLR 259 22
Withers v Flackwell Heath Football
Supporters Club [1981] IRLR 307 5
Withers v Perry Chain Co Ltd
[1961] 3 All ER 676 56, 57
Woodhouse v Peter Brotherhood Ltd
[1972] 3 All ER 91 142, 145
Wood v William Ball Ltd [1999] IRLR 773 170
Woods v WM Car Services (Peterborough) Ltd
[1981] IRLR 347; [1982] IRLR 413 25, 87
Wren v Eastbourne Borough Council [1993] ICR 955 156, 157

X (A Minor) v Bedfordshire County Council

[1995] 3 All ER 353 239

Yewens v Noakes [1880] 6 QBD 530 4

xxxi
Table of Statutes

Coal Mines Act 1911 Employment

s 102(8) 60 Relations Act 1999 20, 252
Companies Act 1939 s 17 20
s 129 143 Employment Rights
Act 1996 50, 75,
Disability Discrimination 127, 137
Act 1995 209–11, 214 s1 8, 11–14
s1 209 s 1(1) 16
ss 2, 4 210 s 1(3), (4) 13
s5 211 s 1(4)(e)-(j) 12
s 5(2) 213 s 1(4)(f) 30
s 5(3) 212 s 1(5)(f) 12
s6 211–13 ss 2–4 14
s7 213 s2 12
ss 55–58 214 s 2(3)–(6) 13
s 68 2 s 2(4) 11
Sched 1 209 s3 13, 14
Sched 2 210 ss 4–7 14
Disability Rights ss 8, 9 48
Commission Act 1999 214 s 11(1) 16
s 13 48, 50, 51
Education Act 1944 239 s 13(3)–(7) 49
Education Reform s 14 50
Act 1988 245 s 14(4)–(6) 51
Employer’s Liability ss 23–26 51
(Defective Equipment) s 23 3
Act 1969 s 27 49
s1 58 s 27(1)(a) 49, 50
Employment Act 1980 242 s 79 139
Employment s 95(1) 78, 81, 83
Protection s 95(1)(a) 81
(Consolidation) s 95(1)(b) 82
Act 1978 75 s 95(1)(c) 87
s1 8 s 96(3) 139
s 140 71 s 98 93, 97

xxxiii
B RIEFCASE on Employment Law

s 98(1) 94, 96, 147 s 230(2) 1

s 98(2)(b) 97 s 230(3) 1–3
s 98(4) 100, 101, s 230(3)(b) 3
131, 147 s 235 141
s 99 206, 207 Equal Pay Act 1970 164, 165,
s 105(1) 131 173, 180, 181,
s 111(1)–(3) 114 182, 187
s 111(2)(b), (3) 115 s1 161, 168,
s 138 129–31 173, 178
s 139 119 s 1(1) 17, 168
s 139(1)(a) 120 s 1(2)(a)-(c), (4) 162, 169, 170
s 139(1)(b) 121, 123 s 1(3) 170, 173,
s 139(1)(b)(ii) 120 175, 179
s 140(1)–(3) 128 s 1(4) 165
s 140(2) 129 s 1(4) 167
ss 142, 146 129 s 1(6) 2, 178–80
ss 147–54 131 ss 1–3 168
s 155 127, 138 s 2(5) 182
ss 156, 157, 159, 161 127 European Communities
s 161(2) 138 Act 1972
s 196 14 s2 164
ss 196(6), 197(3) 127
ss 198, 199 14 Fair Employment
s 199(2) 127 (Northern Ireland)
s 203 71, 72, 83 Act 1976 2
ss 210–19 137
s 211 138 Health and Safety
s 211(2) 127 at Work Act 1974 61, 64
s 211(3) 142 ss 2–7 64
s 212 138, 142 s 2(1) 59
s 212(3)(b) 139 s 2(2) 60
s 213(3)(c) 140, 141 s3 61, 62
s 212(4) 139 s6 62
s 214 141 s7 63
s 214(2)(a) 141 s8 63, 64
s 215 138 ss 9, 21, 22, 24 63
s 216 138, 142 s 25 57, 64
s 217 138 s 47 64
s 218 24, 142, 143 s 53 2
s 218(2) 142 Industrial Relations
s 218(3)–(6) 143 Act 1971 123, 218
s 230 14 s 81(2)(b) 121, 123
s 230(1) 1, 2

xxxiv
 Table of Statutes

Law Reform (Contributory s 32(1) 197

Negligence) Act 1945 s 32(3) 196
s1 58 s 54 200
ss 56, 57 201
Merchant Shipping s 65(2)(b) 199
Act 1894 238 s 78 2
Race Relations
National Minimum (Remedies) Act 1994 202
Wage Act 1998 3, 52
s1 52 Science and
ss 34, 35, 41, 54 3 Technology Act 1965 37
Nuclear Installations Sex Discrimination
Act 1965 Act 1975 187, 195,
s 12 64 203, 207
208, 211, 214
Patents Act 1977 35, 38, 39 s1 183, 187
s 39 35 s 1(b) 188
s 40 35, 36, 38 s2 183
s 40(1), (2), (7) 37 s3 183
s 41 35, 37 s 5(3)
s 41(4)–(6) 38 204
s 42 38 s6 193
s 42(2), (3) 39 s7 194
Pension Schemes s 41 195
Act 1993 s 77 190
Pt III 13 s 82 2
Post Office Act 1953 238 Social Security
Protection from Contributions and
Harassment Act 1997 184 Benefits Act 1992
Public Interest s 163 2
Disclosure Act 1998 3
Trade Dispute Act 1965 236
Race Relations Act 1976 182, Trade Union Act 1871 218
186, 191–93, s4 218
196, 211, 214 Trade Union Act 1984
s1 185, 191 s 11 251
s 1(1)(b) 201 Trade Union and
s3 186, 191 Employment Rights
s4 192, 193 Act 1993
s 4(1)(a), (c), (2)(b) 193 s 33(2) 144
s 4(2)(c) 196 Trade Union and
s5 193 Labour Relations
s 5(2)(d) 194 Act 1974 36, 218
s 32 195 s 13(1) 234

xxxv
B RIEFCASE on Employment Law

Trade Union and s 226(1) 252

Labour Relations s 226A 247
(Consolidation) s 226B 246, 248
Act 1992 241, 246 s 226C 248
s 10(1) 218 ss 227–31 247
s 63 219 ss 227, 228 248
s 64 224, 226, 228 s 229 248, 249
s 64(2) 226 s 229(2) 247, 251
s 65 224–27 s 229(2A) 252
s 67 226 s 229(3) 250
ss 144, 145 254 s 230 249, 250
s 174 227, 228 s 230(1)(a) 253
s 178 37 ss 231, 231A 250
s 179 19, 21 s 231B 248, 250
s 179(3), (4) 20 s 233 249, 250, 254
ss 186, 187 255 s 233(3)(b) 250
s 188 133–35 s 234 250
s 188(1), (1A)(a), (b) 135 s 234A 251
s 188(3)–(7A) 134–35 s 237 254
s 188(7) 136 s 244 246
s 188(7A), (8) 135 s 244(1) 245
s 188A 135 s 244(2) 244
s 188A(1) 133 s 246 252
ss 189–92 135 s 296(1) 2
s 190 136
s 219 241 Wages Act 1986
ss 222, 223 254 s8 2
s 224 242, 255 Workmen’s
s 225 255 Compensation
s 226 246 Act 1906 4

xxxvi
Table of Statutory Instruments

Collective Redundancies and Transfer of Undertakings

(Protection of Employment) (Amendment) Regulations
1995 (SI 1995/2587) 133, 159
regs 9–11 159

Disability Discrimination (Meaning of Disability)

Regulations 1996 (SI 1996/1455) 209

Equal Pay (Amendment) Regulations 1983 (SI 1983/1794) 168

Industrial Tribunals (Rule of Procedure)

Regulations 1985 (SI 1985/16) 169

Sex Discrimination and Equal Pay (Miscellaneous

Amendments) Regulations 1996 (SI 1996/438) 170
Sex Discrimination and Equal Pay (Remedies)
Regulations 1993 (SI 1993/2798) 202

Transfer of Undertakings (Protection of Employment)

Regulations 1981 (SI 1981/1794) 24, 141, 144, 147,
149, 152, 153, 157

reg 2(1) 144

reg 3(1)–(4) 145
reg 5 147,150
reg 5(1)–(5) 146
reg 5(1) 151
regs 5(3), 8(1) 150
reg 8(2) 147, 151, 152
reg 10 158
Transfer of Undertakings (Protection of Employment)
(Amendment) Regulations 1999 (SI 1999/2402) 133, 135, 159
reg 9 159

Working Time Regulations 1998 (SI 1998/1833) 3

regs 4(1), (2), 5 65

xxxvii
Table of European Legislation

Directives
Acquired Rights Directive (77/187/EEC) 4, 144, 147,
149, 154, 157
Art 4 150
Art 3(1) 148
Equal Pay Directive (75/117/EEC) 164, 169, 172, 208
Arts 1–3 163
Arts 4–6 164
Art 119 207, 208
Equal Treatment Directive (76/207/EEC) 181, 189, 204–08
Art 1 202
Art 2 202, 207
Art 2(1) 204
Arts 3, 5 203
Art 5(1) 208
Art 6 202
Health and Safety Framework Directive (89/391/EEC) 4
Pregnant Workers Directive (92/85/EEC) 207
Redundancy Consultation Directive (75/129/EEC) 135
Social Security Directive (79/7/EEC) 204
Working Time Directive (93/104/EEC) 65
Art 7 65

Recommendations
On the Protection of the Dignity of Women and
Men at Work (91/131/EEC) 184

Treaties and Conventions

EC Treaty 1957
Art 141 163–65, 169,
171–74, 180, 181
European Convention on the Protection of Human
Rights and Fundamental Freedoms 1950
Art 8 207

xxxix
1 Employee Status

1.1 Statutory definitions

1.1.1 Employment Rights Act 1996

Section 230(1)
In this Act, ‘employee’ means an individual who has entered into or works
under (or, where the employment has ceased, worked under) a contract of
employment.

Section 230(2)
In this Act, ‘contract of employment’ means a contract of service or appren-
ticeship, whether express or implied, and (if it is express) whether oral or
in writing.

Section 230(3)
In this Act, ‘worker’ (except in the phrases ‘shop worker’ and ‘betting
worker’) means an individual who has entered into and works under (or
where the employment has ceased, worked under):

(a) a contract of employment; or

(b) 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 the contract that of a client or
customer of any profession or business undertaking carried on by the
individual.

Note ______________________________________________________
The width of the definition of a worker in s 230(3) is greater than that in s
230(1) of an employee. The essence of the definition in s 230(3) is the under-
taking to personally perform work or services for another party.

1
B RIEFCASE on Employment Law

The definition in s 230(1) is applied in the following Parts of the Employ-

ment Rights Act 1996 (ERA):

Part I right to statements of employment particulars and

itemised pay statements;
Part III guarantee payments;
Part IV protected shop workers and betting workers;
Part V protection from suffering detriment in employment;
Part VI rights to time off work;
Part VII suspension from work;
Part VIII maternity rights;
Part IX termination of employment;
Part X unfair dismissal;
Part XI redundancy.

Section 230(3) is applied to Pt II of the ERA 1996 (deductions from pay)

and it derives from s 8 of the Wages Act 1986. There is a similar definition
of a worker in s 296(1) of the Trade Union and Labour Relations (Consoli-
dation) Act 1992.
Section 1(6) of the Equal Pay Act 1970, s 82 of the Sex Discrimination
Act 1975, s 78 of the Race Relations Act 1976 and s 68 of the Disability
Discrimination Act 1995 all adopt a definition which incorporates the
definitions in both s 230(1) and (3) of the ERA 1996.
They refer to employment ‘under a contract of service or of
apprenticeship or a contract personally to execute any work or labour’.
Section 53 of the Health and Safety at Work Act 1974 in effect uses the
narrower definition of employee in s 230(2): ‘Contract of employment means
a contract of employment or apprenticeship.’
Section 163 of the Social Security Contributions and Benefits Act 1992
deals with the right to receive statutory sick pay, but here the term
‘employee’ includes officeholders as well. This is because the definition is
based on liability to pay income tax under Sched E.

Loughran and Kelly v Northern Ireland Housing Executive (1998) HL

The House of Lords considered the phrase ‘employed under a contract…
personally to execute any work or labour’ and held that it not only applied
to a solicitor who was a sole practitioner, but also to a partner in the firm.
This case concerned a claim brought under the Fair Employment (North-
ern Ireland) Act 1976, where it was claimed that there had been religious
discrimination against a firm of solicitors, but the decision was obviously
of wider application.

2
 Employee Status

1.1.2 Recent statutory developments

Statutes have been increasingly using the term ‘worker’ rather than ‘em-
ployee’, and have also extended protection to groups of workers not previ-
ously covered by employment protection legislation.
Section 54 of the National Minimum Wage Act 1998 defines an
‘employee’ as someone who works under a contract of employment and
gives the term ‘worker’ the same meaning as in s 230(3)(b) of the ERA 1996
(see above). However, the Act also applies to agency workers and
homeworkers. Section 34 provides that the Act applies as if there is a
worker’s contract between the agency worker and whichever of the client
or the agency is responsible for paying the worker; if neither of them is
responsible, then whichever of them actually does pay the worker. Section
35 provides that a ‘homeworker’ is a person who contracts to do work for
the purposes of another person’s business, but the work is to be done in a
place not under the control or management of that other person. A
homeworker is treated by the Act as a worker. Moreover, s 41 contains
power to extend the scope of the Act even further.
The Public Interest Disclosure Act 1998 expressly states that the term
‘worker’ includes persons who are not covered by this term as defined by
s 230(3) of the ERA 1996; it then goes on to specify four groups that are
within the definition of the term ‘worker’ for the purposes of this Act: agency
workers; homeworkers; NHS doctors, dentists, ophthalmologists and
pharmacists; and trainees on vocational or work experience schemes. The
definitions are slightly different than in the National Minimum Wage Act
1998; for instance, an agency worker is defined as someone who works for
a person to whom they were introduced by a third person, and their terms
of work were determined by the person for whom they work, or the third
person, or by both of these persons. On the other hand, the Working Time
Regulations 1998 use the same provisions in relation to agency workers as
s 34 of the National Minimum Wage Act (see above).
The most significant development is contained in s 23 of the
Employment Rights Act 1999, which gives the Secretary of State power to
extend the scope of employment legislation to groups not already covered
by it. Accordingly, orders can be made, providing that individuals can be
treated as parties to workers’ contracts or contracts of employment and
can make provision as to who are to be regarded as the employers of
individuals.

3
B RIEFCASE on Employment Law

1.1.3 Definitions in European Community law

The Acquired Rights Directive refers to rights and obligations arising from a
contract of employment or from an employment relationship. However, the
Framework Directive of 1989 on Health and Safety refers to ‘workers’, who
are defined as persons ‘employed by the employer’.

Q There is an obvious need for a single, clear definition of which per-

sons are entitled to the protection of employment legislation. How
should such a definition be framed?

1.2 Tests applied by the courts to determine

whether a person is an employee or an
independent contractor
1.2.1 Control test

Yewens v Noakes (1880)

…a servant is a person subject to the command of his master as to the manner
in which he shall do his work [per Bramwell LJ].

Walker v Crystal Palace Football Club (1910) CA

The question to decide was whether a professional football player was em-
ployed for the purpose of a claim under the Workmen’s Compensation Act
1906. It was argued that he was not an employee, because he was not un-
der the control of the employers as to precisely how he should play; it was
for the footballer to decide how he would exercise his skill.
Held, by the Court of Appeal, that, as he was bound to observe the general
directions of the club and also directions given by the captain during the game,
he was an employee, even though he was also exercising his own judgment.

1.2.2 Organisation test

Stevenson Jordan and Harrison Ltd v McDonald and Evans (1952)

Under the contract of service, a man is employed as part of the business,
whereas under a contract for services, his work, although done for the busi-
ness, is not integrated into it, but only accessory to it [per Denning LJ].

Note ______________________________________________________
Although the organisation test, as with the control test, is no longer applied
on its own today in order to determine employee status, it can still be
useful, especially in relation to skilled employees. See, for example, Cassidy
v Minister of Health (1951), where a resident hospital surgeon was held to be

4
 Employee Status

an employee. However, one problem with the organisation test is that it

fails to deal with the now common situation where businesses subcontract
parts of their operations.

Q Would the surgeon in Cassidy v Minister of Health have been an em-

ployee under the control test as used in Walker v Crystal Palace Foot-
ball Club?

1.2.3 The ‘economic reality’ test

Market Investigations v Minister of Social Security (1969) HC

A company, whose business was in market research, employed interview-
ers in addition to its permanent staff. The interviewers worked as and when
required by the company.
Held, by the High Court (QBD), that the interviewers were employees.
Cooke J said that the test to be applied was: ‘Is the person who has engaged
himself to perform those services performing them as a person in business
on his own account?’ If the answer to that question is ‘yes’, then the contract
is a contract for services (not employment). If the answer to that question is
‘no’, then the contract is a contract of service (that is, employment). Cooke
J then went on to mention some indicators to help in deciding this issue:
Factors which may be of importance are such matters as whether the man
performing the services provides his own equipment, whether he hires his
own helpers, what degree of financial risk he takes, what degree of respon-
sibility for investment and management he has, and whether and how far
he has an opportunity of profiting from sound management in the perfor-
mance of his task.

Hall (Inspector of Taxes) v Lorimer (1994) CA

A freelancer vision mixer worked for a number of television production
companies.
Held, by the Court of Appeal, that he was self-employed. Mummery J
disapproved of the idea that one could determine employment status simply
by running through a checklist of the kind set out by Cooke J, above. Instead, he
emphasised that the object of the exercise was to paint a picture from an
accumulation of detail. It was a matter of evaluation of the overall effect of the
detail, which was not necessarily the same as the sum of the individual situation.

Note ______________________________________________________
See, also, Warner Holidays Ltd v Secretary of State for Social Services (1983) and
Withers v Flackwell Heath Football Supporters Club (1981).

5
B RIEFCASE on Employment Law

1.2.4 The multiple test

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National
Insurance (1968) HC
The plaintiff company employed a driver, Latimer, under a contract where he
bought the lorry from the plaintiff on hire purchase. He had to wear the
plaintiff company’s uniform and the lorry had to be painted in the
company’s colours and with its insignia. He had to drive the lorry only on
the business of the company and he agreed to obey all reasonable orders
‘as if he was an employee’. However, he was not required to drive the lorry
personally; instead, he was allowed to use a substitute driver.
Held, by the High Court (QBD), that he was self-employed, one of the
deciding factors being that he was not contracting to necessarily drive the
lorry personally.
MacKenna J said:

…a contract of employment exists if these three conditions are fulfilled:

(i) the servant agrees that, in consideration of a wage or other remunera-
tion, he will provide his own work and skill in the performance of
some service for his master;
(ii) he agrees, expressly or impliedly, that in the performance of that ser-
vice, he will be subject to the other’s control in a sufficient degree to
make that other master;
(iii) the other provisions of the contract are consistent with its being a con-
tract of service…

In this case, MacKenna J said that the ‘obligations are more consistent, I
think, with a contract of carriage than one of service’.

Note ______________________________________________________
This case is not authority for the proposition that the presence or absence of
the obligation to render personal service decides whether a person is an
employee or not. The significance of the case is the emphasis placed by
MacKenna J on the three factors outlined in his judgment. In fact, the
multiple test is very similar to the economic reality test in seeking to avoid
one all-embracing phase, such as a ‘control’ or ‘integration’. Hall (Inspector
of Taxes) v Lorimer (see 1.2.3, above) is really an example of the multiple test.

Note ______________________________________________________
The Court of Appeal’s decision in Express & Echo Publications Ltd v Tanton
(1999) that a right to provide a substitute is inherently inconsistent with the
existence of a contract of employment.

6
 Employee Status

1.2.5 The mutual obligations test

O’Kelly and Others v Trusthouse Forte plc (1983) CA

The applicants were employed on a ‘regular casual’ basis at the Grosvenor
House Hotel.
Held, by the Court of Appeal, that they were self-employed. There were
a number of reasons in favour of their being employees: they were not in
business on their own account (see 1.2.4, above); they were subject to the
conditions of the hotel (see 1.2.1, above); and their work was organised on
a weekly rota and they needed permission to take time off from rostered
duties. However, it was held that there was no mutuality of obligation, in
the sense that the applicants had no contractual right to claim if they were
not offered work and, on their part, they were not bound to accept work
which was offered.

Nethermere (St Neots) Ltd v Taverna and Gardiner (1984) CA

The respondents were employed as ‘homeworkers’. One of them, Mrs
Taverna, used a sewing machine provided by the appellant. She had no
fixed hours for doing the work and was paid weekly according to the num-
ber of garments which she made. Mrs Gardiner, another homeworker, origi-
nally used her own machine, but was then provided with one. Each day,
she usually made 200 pockets and put them onto trousers, but there was
no contractual obligation to do this; if she did not wish to do so much, she
simply told the driver who delivered the materials. The only rule was that
she had to make it worthwhile for the driver to call on her.
Held, by the Court of Appeal, that they were employees. Per Dillon LJ:

There was a regular course of dealing between the parties for years, under
which garments were supplied daily to the outworkers, worked on, col-
lected and paid for. If it is permissible on the evidence to find that by such
conduct, a contract had been established between each applicant and the
company, I see no necessity to conclude that that contract must have been a
contract for services and not a contract of service.
Kerr LJ, however, dissented and observed:
A course of dealing can be used as a basis for implying terms into individual
contracts which are concluded pursuant thereto, but I can find no authority
for the proposition that even a lengthy course of dealing can somehow
convert itself into a contractually binding obligation—subject only to
reasonable notice—to continue to enter into individual contracts, or to be
subject to some ‘umbrella’ contract.

Q Is it possible to distinguish between O’Kelly and Nethermere? Do you

prefer Kerr LJ’s dissenting judgment in Nethermere? If so, why?

7
B RIEFCASE on Employment Law

Carmichael v National Power plc (1999) HL

The appellants were guides at power stations, where they took visitors on
conducted tours. They worked on a ‘casual as required’ basis, under which
they were offered, and accepted, work as it arose. They were not obliged to
take work and the company did not guarantee that work would be avail-
able. They were paid only for the hours which they worked and tax and
National Insurance contributions were deducted. They claimed a statement
of terms and conditions of employment in accordance with s 1 of the Em-
ployment Protection (Consolidation) Act 1978, a right which is now con-
tained in s 1 of the Employment Rights Act 1996.
Held, by the House of Lords, that they were not employees for the
purposes of s 1. Although they might have had the status of employees when
actually working as guides (this point was not decided), they did not have
a contract which would entitle them to a statement under s 1 and, clearly, it
followed that they would not have continuity of employment to enable them
to claim other employment rights. Irvine LC, who delivered the leading
opinion and with whom the other Law Lords agreed, said that: ‘The parties
incurred no obligations to accept or provide work, but at best assumed moral
obligations of loyalty in a context where both recognised that the best interests
of each lay in being accommodating to the other.’ He said that the words
‘casual as required basis’ meant that the appellants ‘were doing no more
than intimate that they were ready to be invited to attend for casual work as
station guides as and when the CEGB required their services’. The ‘irreducible
minimum of moral obligation necessary to create a contract of service’, which
was present, for example, in Clark v Oxfordshire Health Authority (1998), was
not present here. Furthermore, on 17 occasions, one of the appellants had
not been available for work and, on eight occasions, the other applicant had
not been available, but in no case did any question of disciplining them arise.
Accordingly, the appellants did not have ‘their relationship regulated by
contract’ when they were not working as guides.
Lord Huffman held that the ascertainment of the terms of the agreement
was a question of fact, and not law, which could be ascertained from the
conduct of the parties and oral exchanges as well as from the actual
agreement. Accordingly, such a finding of fact by an employment tribunal
should not be interfered with on appeal.

1.2.6 The description given by the worker

Ferguson v John Dawson and Partners (Contractors) Ltd (1976) CA

The plaintiff was a building worker. He was subject to the defendant’s or-
ders as to what he did, and the defendant provided tools. However, when
the plaintiff went to work for the defendant, the site agent said in evidence

8
 Employee Status

that ‘I did inform him that there were no cards; we were purely working as a
lump labour force’.
Held, by the Court of Appeal, that the plaintiff was an employee. Megaw
LJ held that, on the evidence, this was clearly so; any declaration by the
parties that he was self-employed would be disregarded:
I find difficulty in accepting that the parties, by a mere expression of intention
as to what the legal relationship should be, can in any way influence the
conclusion of law as to what the relationship is. I think that it would be
contrary to the public interest if that were so, for it would mean that the
parties, by their own whim, by the use of verbal formula, unrelated to the
reality of the relationship, could influence the decision on whom the
responsibility for the safety of workmen, as imposed by statutory
regulations, should rest.

Q Do you consider that the decision of the Court of Appeal was influ-
enced by the fact that this was a claim for injury at work and, if
Ferguson had not been held to be an employee, he may not have
received any compensation?

Note ______________________________________________________
Megaw LJ said that he had found the reasoning in both the Market
Investigations (see 1.2.3, above) and Ready Mixed Concrete cases (see 1.2.4,
above) useful, which indicates, as said above, that the ‘economic reality’
test and the ‘multiple’ test have similarities. See, also, Davis v New England
College of Arundel (1977). Note, also, the statement by Lord Denning MR in
Massey v Crown Life Assurance Co (1978): ‘…if the parties deliberately arrange
to be self-employed to obtain tax benefits, that is strong evidence that that
is the real relationship.’

Q Do you agree with Lord Denning MR’s remark in Massey?

1.2.7 A question of fact or law?

Lee v Chung and Shun Sing Construction and Engineering Co Ltd (1990) PC
Lee was a stonemason who was injured whilst working on a construction
site for the employers. He was provided with tools and told where to work,
but was then left to proceed with the job. He was not paid a set wage, but
was paid according to the amount of work which he did. However, he was
expected to be on site when there was work for him to do.
Held, by the Judicial Committee of the Privy Council, that Lee was an
employee. Lord Griffiths said:

…whether or not a person is employed under a contract of service is often

said in the authorities to be a mixed question of fact and law. Exceptionally

9
B RIEFCASE on Employment Law

if the relationship is dependent solely upon the true construction of a writ-

ten document, it is regarded as a question of law: see Davies v Presbyterian
Church of Wales (1986). But where, as in the present case, the relationship
has to be determined by an investigation and evaluation of the factual cir-
cumstances in which the work is performed, it must now be taken to be
firmly established that the question of whether or not the work was per-
formed in the capacity of an employee or as an independent contractor is to
be regarded by an appellate court as the question of fact to be determined
by the trial court.

McMeechan v Secretary of State for Employment (1995) CA

McMeechan worked for an employment agency under a series of tempo-
rary contracts, which provided that he was self-employed. He was not
obliged to accept any assignment, but, if he did so, he was subject to the
normal obligations owed by an employee of fidelity, confidentiality, and
obedience to lawful instructions. He was paid weekly by a specified hourly
rate and the employees could instruct him to end an assignment at any
time. However, he did not have to work for a specified number of hours
and he did not receive hourly pay.
Held, by the EAT, that he was an employee. Mummery J said that there
was no rule that those working for an employment agency were self-
employed. He also said:

…where the relevant contract is, as here, wholly contained in a document

or documents, the question whether the contract is one of employment is a
question of law to be determined upon the construction of the document in
its factual matrix.

Note ______________________________________________________
The judgment of Mummery J in this case can be seen as, to some extent, a
retreat from the principle in Lee that the question of employee status is one
of the fact and not law, although Mummery J confined his remarks to cases
where the contract of employment is in writing.

The Court of Appeal agreed with the EAT that McMeechan was an em-
ployee but, instead of Mummery J’s general reasoning, it distinguished
between the status of agency workers in two situations:

(a) an agency worker can have the status of an employee in relation to a

particular engagement;
(b) however, such a worker may not have employee status under the gen-
eral terms of his agreement because, for example, there may be a lack
of obligations.

10
 Employee Status

See, also, Clifford v Union of Democratic Mineworkers (1991), where the

approach in Lee v Chung (that is, that the question is one of fact) was fol-
lowed.

1.3 Rights of employees to be provided with a

statement of initial employment particulars

Employment Rights Act 1996

Section 1
(1) Where an employee begins employment with an employer, the em-
ployer shall give to the employee a written statement of particulars of
employment.
(2) The statement may (subject to s 2(4)) be given in instalments and
(whether or not given in instalments) shall be given not later than two
months after the beginning of the employment.
(3) The statement shall contain particulars of:
(a) the names of the employer and employee;
(b) the date when the employment began; and
(c) the date on which the employee’s period of continuous employ-
ment began (taking into account any employment with a previ-
ous employer which counts towards that period).
(4) The statement shall also contain particulars, as at a specified date not
more than seven days before the statement (or the instalment contain-
ing them) is given, of:

(a) the scale or rate of remuneration or the method of calculating

remuneration;
(b) the intervals at which remuneration is paid (that is, weekly,
monthly or other specified intervals);
(c) any terms and conditions relating to hours of work (including
any terms and conditions relating to normal working hours);
(d) any terms and conditions relating to any of the following:

(i) entitlement to holidays, including public holidays, and

holiday pay (the particulars given being sufficient to en-
able the employee’s entitlement, including any entitlement
to accrued holiday pay on the termination of employment,
to be precisely calculated);
(ii) incapacity for work due to sickness or injury, including
any provision for sick pay; and
(iii) pensions and pension schemes.

11
B RIEFCASE on Employment Law

(e) the length of notice which the employee is obliged to give and
entitled to receive to terminate his contract of employment;
(f) the title of the job which the employee is employed to do or a
brief description of the work for which he is employed;
(g) where the employment is not intended to be permanent, the pe-
riod for which it is expected to continue or, if it is for a fixed
term, the date when it is to end;
(h) either the place of work or, where the employee is required or
permitted to work at various places, an indication of that and of
the address of the employer;
(i) any collective agreements which directly affect the terms
and conditions of the employment including, where the
employer is not a party, the persons by whom they were
made; and
(j) where the employee is required to work outside the UK
for a period of more than one month:
(i) the period for which he is to work outside the UK;
(ii) the currency in which remuneration is to be paid while he
is working outside the UK;
(iii) any additional remuneration payable to him, and any ben-
efits to be provided to or in respect of him, by reason of his
being required to work outside the UK; and
(iv) any terms and conditions relating to his return to the UK.
(5) Sub-section (4)(d)(iii) does not apply to an employee of a body or au-
thority if:
(a) the employee’s pension rights depend on the terms of a pension
scheme established under any provision contained in or having
effect under any Act; and
(b) any such provision requires the body or authority to give to
a new employee information concerning the employee’s pen-
sion rights or the determination of questions affecting those
rights.

Section 2
(1) If, in the case of a statement under s 1, there are no particulars to be
entered under any of the heads of para (d) or (k) of sub-s (4) of that
section, or under any of the other paragraphs of sub-s (3) or (4) of that
section, that fact shall be stated.
(2) A statement under s 1 may refer the employee for particulars of any of
the matters specified in sub-s (4)(d)(ii) and (iii) of that section to the
provisions of some other document which is reasonably accessible to
the employee.

12
 Employee Status

(3) A statement under s 1 may refer the employee for particulars of either
of the matters specified in sub-s (4)(e) of that section to the law or to
the provisions of any collective agreement directly affecting the terms
and conditions of the employment which is reasonably accessible to
the employee.
(4) The particulars required by s 1(3) and (4)(a)-(c), (d)(i), (f) and (h) shall
be included in a single document.
(5) Where before the end of the period of two months after the beginning
of an employee’s employment, the employee is to begin to work out-
side the UK for a period of more than one month, the statement under
s 1 shall be given to him no later then the time when he leaves the UK
in order to begin so to work.
(6) A statement shall be given to a person under s 1, even if this employ-
ment ends before the end of the period within which the statement is
required to be given.

Section 3
(1) A statement under s 1 shall include a note:
(a) specifying any disciplinary rules applicable to the employee or
referring the employee to the provisions of a document specify-
ing such rules which is reasonably accessible to the employee;
(b) specifying (by description or otherwise):
(i) a person to whom the employee can apply if dissatisfied
with any disciplinary decision relating to him; and
(ii) a person to whom the employee can apply for the purpose
of seeking redress of any grievance relating to his employ-
ment, and the manner in which any such application
should be made; and
(c) where there are further steps consequent on any such applica-
tion, explaining those steps or referring to the provisions of a
document explaining them which is reasonably accessible to the
employee.

Note ______________________________________________________
Section 3(2) provides that the requirements in s 3(1) do not apply to rules,
procedures, etc, relating to health and safety at work. Section 3(3) exempts
small firms (where, on the date when the employee’s employment began,
the number of employees was less than 20) from most of the requirements
set out in s 3(1). Section 3(5) requires the note which is given under s 3(4) to
state whether there is in force a contracting-out certificate (issued in
accordance with Pt III of the Pension Schemes Act 1993), stating that the
employment is contracted-out employment for the purpose of Pt III.

13
B RIEFCASE on Employment Law

1.3.1 Statement of changes

Section 4(1)
If, after the material date, there is a change in any of the matters particulars
of which are required by ss 1 and 3 to be included or referred to in a statement
under s 1, the employer shall give to the employee a written statement
containing particulars of the change.

Note ______________________________________________________
Section 4 also provides that any statement of changes may refer the em-
ployee to some reasonably accessible document, the general law or a col-
lective agreement for the details of those changes in cases where the origi-
nal written statement would have allowed such a reference. In addition, it
provides that, where the name and the identity of the employee changes,
the employee does not have to be issued with a statement under s 1, unless
continuity of employment is broken by the change of identity or there are
changes in any of the matters (other than the names of the parties) which
are required to be included in the written statement.

Note ______________________________________________________
The following are excluded from the right to receive a written statement of
employment particulars (see s 5):
(a) self-employed persons (s 230);
(b) employees working wholly or mainly outside Great Britain (s 196);
(c) employees who are employed for less than one month (s 198);
(d) mariners (s 199).

1.3.2 Reasonably accessible document or collective agreement

Section 6
In ss 2–4, references to a document or collective agreement which is
reasonably accessible to an employee are references to a document or
collective agreement which:
(a) the employee has reasonable opportunities of reading in the
course of his employment; or
(b) is made reasonably accessible to the employee in some other way.

1.3.3 Power to require particulars of further matters

Section 7
The Secretary of State may by order provide that s 1 shall have effect as if
particulars of such further matters as may be specified in the order were

14
 Employee Status

included in the particulars required by that section; and, for that purpose,
the order may include such provisions amending that section as appear to
the Secretary of State to be expedient.

Gascol Conversions v Mercer (1974) CA

The employer had sent to the employee a document containing written
terms of employment, which the employee signed. One term stated that
the employee’s normal working week was 40 hours. When he was dis-
missed for redundancy, he claimed that as he worked 14 hours overtime,
his normal working week should be 54 hours, which would have increased
his redundancy pay.
Held, by the Court of Appeal, that the written contract was binding. It
could not, in accordance with normal contractual principles, be varied by
extraneous evidence. Lord Denning MR observed that:
It is settled that, where there is a written contract of employment, as there
was here, and the parties have reduced it to writing, it is the writing which
governs their relations. It is not permissible to say they intended some-
thing different.

System Floors (UK) Ltd v Daniel (1981) EAT

The applicant had started work for the employers on an agency basis in
September 1979 and it was then agreed that he would be employed di-
rectly by them from 26 November. However, his statement of (what is now
called) employment particulars stated that he began as an employee on 19
November. The difference was significant in deciding whether the appli-
cant could claim for unfair dismissal, the length of continuous employ-
ment then required being 52 weeks.
Held, by the EAT, that the employer could adduce evidence that the
starting date was different. Mercer was distinguished, as that was the case
of an individual contract whereas this concerned the statutory statement.
Browne Wilkinson J drew a clear distinction between the status of these
two types of documents:
In that case, Mr Mercer had signed a document which he confirmed was a
new contract of employment and that it set out the terms and conditions of
his employment. The Court of Appeal treated that as being a contract in
writing, as indeed it was, having been signed by both parties. But in the
case of an ordinary statutory statement served pursuant to the statutory
obligation, the document is a unilateral one merely stating the employer’s
view of what those terms are. In the absence of an acknowledgment by the
parties that the statement itself is a contract and that the terms are correct,
such as that contained in the Mercer case, the statutory statement does not
itself constitute a contract in writing.

15
B RIEFCASE on Employment Law

In the present case, all that the employee did was to sign an acknowledg-
ment that he had received the statement. In no sense did he sign it as a
contract or acknowledge the accuracy of the terms in it. We therefore think
that the industrial tribunal erred in law in treating the date of commence-
ment mentioned in the statement as decisive, because it was a contractual
term. In our view, the statement is no more than persuasive, though not
conclusive, evidence of the date of commencement.

Note ______________________________________________________
See, also, Robertson v British Gas Corp (1983) (which confirmed the approach
in Systems Floors v Daniel) and Jones v Associated Tunnelling Co Ltd (1981)
(dealing with the situation where an employer changes the terms of a state-
ment and the employee works under the changed terms). It seems that,
where the statement favours the employee, it is more likely to be felt to
represent strong evidence of the terms of the contract. (See Ackner LJ in
Robertson v British Gas Corp.)

1.3.4 Enforcement of the duty to supply initial employment

particulars

Section 11(1) of the ERA 1996 gives an employee the right to complain to
an employment tribunal on the grounds that either he has not been given
a statement or that the statement given did not contain the particulars re-
quired by s 1(1). He may also complain on the grounds that proper notice
has not been given of a change in the particulars.
The employment tribunal may determine what matters should have
been included in the particulars, or whether any particulars which were
included are to be confirmed, amended or substituted.

Note ______________________________________________________
The powers of industrial tribunals under s 11 are simply to find out what has
been agreed between the parties and, if required, to amend the statement
so that it reflects that agreement. In Cuthbertson v AML Distributors (1975),
the industrial tribunal was held to have acted correctly in refusing to decide
what length of notice would have been reasonable as this would have
meant interpreting the contract. See, also, on the same point, Construction
Industry Training Board v Leighton (1978).

16