Employment Law Essay Example | Topics and Well Written Essays - 3000 words

Employment Law - Essay Example As an employee, Tom would then be in a position where there is a general premise that he would be eligible to file a case for unfair dismissal, but when working as a self employed person, the employer’s liability would be limited. The basis for this lies in the rule laid down in the case of Jennings v Westwood Engineering, in which an employer is required to deduct taxes at the source from his employees; should be fail to do so, he could be committing a criminal offence. Since the employer deducts tax and insurance which are a percentage of his earnings, and to which the employer also makes a contribution, this means that the employer has certain obligations in respect to employees, so that the employees will have some rights in respect to sickness, unemployment or injuries arising during the period of employment. An employer however, has no such obligations towards a self employed person; as a result, any claim for unfair dismissal would not be sustainable if the worker is a self employed person. ... ack of clarity in these definitions, a number of factors were later identified in the case of ready Mixed Concrete (South East) Ltd v MPNI (1968), in which McKenna set out the following considerations in determining whether an individual was an employee or self employed: (a) Is the employee providing his skill in consideration of a wage (b) Is there an element of control exercised by the employer? (c) Are there provisions in the contract inconsistent with it being a contract of employment? Applying this in Tom’s case, it must be noted that at the outset, Tom has a guaranteed income, because he is entitled to 20 sessions with the company’s members, as stated under the first condition spelt out above in the case of McKenna. Secondly, it must also be noted that Tom does not supply his own equipment and tools; nor does he make arrangements to provide his own support staff to carry out an assignment as a contractor would do. In the case of Lee v Chung and Sun Chung Construct ion and Engineering Co Ltd, in determining whether an individual was an employee, the Court stated that when the worker used the tools and equipment provided by the company, he would fall under the category of an employee rather than self employed. Other factors examined in this same case were (a) how much financial risk the employee took and (b) how much investment responsibility he had and (c) how much s/he was able to profit from his own investment of time and effort. On this basis, it may be noted that Tom’s financial risk was not substantial because he had a guaranteed income from the Company’s members and could use the Company’s staff and equipment, which reduced his own investment liability. . In the case of Ready Mixed Concrete, McKenna also laid out the condition that a contract of