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A contract of employment is an agreement
entered into by an employer and an employee
under which they have certain mutual
obligations. If no contract of employment
exists beforehand, one will come into
existence as soon as an employee starts work
and, by doing so, demonstrates that he or
she accepts the job on the terms offered by
the employer. The contract need not be in
writing, unless it is a contract of
apprenticeship (employers should note
however that a contract of apprenticeship
may be found by the courts to be implied
even if it is not in writing). Its terms can
be written, oral, implied or a mixture of
all three.
Implied terms might include those that
are too obvious to be expressly agreed - for
example, a term that the employee must
accept reasonable instructions from the
employer - those that are necessary to make
the contract workable and those that are
established by custom and practice in the
particular organisation or industry
concerned.
Employed or self-employed?
Whether someone is an employee working
under a contract of employment or a
self-employed person working under a
contract to provide services depends upon
the true nature of the agreement entered
into by the parties.
If the employer has a duty to provide
work, controls when and how it is done,
supplies the tools or other equipment needed
to do it and pays tax and national insurance
contributions on the worker's behalf, then
it is likely that the worker is an employee.
If, on the other hand, the worker can
decide whether or not to accept work and how
to carry it out, makes his or her own
arrangements for holidays or sickness
absences, pays his or her own tax and
national insurance contributions and is free
to do the same type of work for more than
one employer at the same time, this points
towards the person being self-employed.
The fact that a worker is described
(either by himself or herself or by the
employer) as being self-employed does not
necessarily mean that this is actually so.
Neither does the fact that the worker does
the job on the employer's premises or from
his or her own home determine the issue.
The important question is whether or not
the worker is genuinely in business on his
or her own account. If a dispute arises in
which employment status is in doubt, this
can be considered as a preliminary issue by
the Employment Tribunal or the court
concerned, taking into account all factors
relevant to the case.
Written statement of employment
particulars.
All employees taken on for one month or
more are entitled by law to be given, within
two months of the date the employment
starts, a written statement setting out the
main particulars. This statement will not
necessarily cover every aspect of the
contract, but will constitute important
evidence of the principal terms and
conditions
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The Interactive
Law Group