Lord Clarke:
“35 So the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description.”
See: P O’Donnell, ‘Autoclenz Ltd v Belcher’ (2011) Emp LB 105 (Oct 6-7 (Casenote); Alan Bogg. Sham self-employment in the Supreme Court (2012) 41(3)
ILJ 328 (longer casenote); J McClelland ‘A purposive approach to employment protection or a missed opportunity ’ (2012) 75(3) MLR 427-436.
4. CASUAL WORKERS
Nethermere (St Neots) Ltd v Gardiner & Taverna [1984] ICR 612 (CA), 623 (Stevenson LJ):
‘There must, in my judgment, be an irreducible minimum of obligation on each side to create a contract of service.’
O’Kelly v Trusthouse Forte [1984] QB 90 (CA)
Nethermere (St Neots) Ltd v Gardiner & Taverna [1984] ICR 612 (CA), 626-627 (Stevenson LJ):
‘I cannot see why well founded expectations of continuing homework should not be hardened or refined into enforceable contracts by regular giving and taking of work over periods of a year or more, and why outworkers should not thereby become employees under contracts of service like those doing similar work at the same rate in the factory.’
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