contractor even though he has not entered into the contract in the course of an existing business carried on by him.’Ready Mixed Concrete Ltd v Minister of Pensions [1968] 2 QB 497 Express & Echo v Tanton [1999] IRLR 367 (CA)
LECTURE 2
STATUS (2)
Other factors
1. Deduction of tax/NI
2. Casual/ short term engagement indicates self-employed
3. Substance, Form, and Sham Contracts
The courts will look to substance, not the form of the agreement
Ferguson v John Dawson Ltd [1976] 1 WLR 1213 (CA)
Drake v Ipsos Mori [2012] IRLR 973 (EAT)
Autoclenz v Belcher [2011] ICR 1157 (SC)
Lord Clarke (for the whole Court):
“[29] … The question in every case is…what was the true agreement between the parties”
He approved
Elias J in Consistent Group v Kalwak [2007] IRLR 560 (EAT):
57. The concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work, in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship. Peter Gibson LJ was alive to the problem. …
58. In other words, if the reality of the situation is that no one seriously expects that a worker will seek to provide a substitute, or refuse the work offered, the fact that the contract expressly provides for these unrealistic possibilities will not alter the true nature of the relationship. But if these clauses genuinely reflect what might realistically be expected to occur, the fact that the rights conferred have not in fact been exercised will not render the right meaningless.
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