Chapter 16Employing labourFailure to give a post-employment reference ranks
also as a detriment under s 47B of the Employment
Rights Act 1996 where it is in regard to a person who has
blown the whistle about some aspects of the employer’s
organisation, in what is called a public interest disclos-
ure (Woodwardv Abbey National plc(2006)).
In addition, a series of regulations passed in 2003 pro-
vide post-employment protection from discrimination.
These will be referred to as the chapter progresses but
for now we can use a short form, i.e. the SexDiscrimina-
tion Regulations 2003, the RaceRegulations 2003, the
Sexual OrientationRegulations 2003 and the Religion
or BeliefRegulations 2003. There are similar provisions
in the AgeRegulations 2006 which also provide post-
termination discrimination protection.
A contract worker is one who is employed by a third
party, such as an agency, and whose services are supplied
under a contract with that third party. A claim against
an employer could be made, for example, by a tempor-
ary secretary who is turned away or treated in a hostile
manner on grounds of colour or disability or who is
subjected to sexual harassment.
The same would be true of a salesman without a con-
tract of service who was paid by commission only, who
was not given work because of his race (see Hill Samuel
Services Group Ltdv Nwauzu(1994)).
As regards disability discrimination, the right not to
be discriminated against covers employees and applicants
for employment including contract workers, appren-
tices and self-employed people who contract personally
to do any work (Disability Discrimination Act 1995,
s 68(1)). However, while the Act covers partnerships
in their capacity as employers, it did not prohibit, for
reasons of disability, discrimination against the partners
or prospective partners themselves. This contrasted with
sex and race discrimination which covers discrimination
against partners or prospective partners, albeit only for
firms consisting of six or more partners in the case of
discrimination on racial grounds.
The position now is that the Race Regulations 2003
remove the size restriction that once applied to partner-
ships. The Disability Regulations 2003 protect partners
in all partnerships against disability discrimination as do
the Sexual Orientation Regulations and the Religion or
Belief Regulations all of 2003 in their respective fields of
operation and the Age Regulations of 2006.
In this connection, it is worth noting s 23 of the Employ-
ment Relations Act 1999, which gives the government
power to extend employee status and rights to all workers
other than the genuinely self-employed and so ensure
that none are excluded merely because of technicalities
relating to their working arrangements, which are often
designed by less scrupulous employers to produce a virtu-
ally rightless and bogus self-employment.The contract of employment
Generally
The ordinary principles of the law of contract apply. So,
in a contract of employment there must be an offer and
an acceptance, which is in effect the agreement. There
must also be an intention to create legal relations, con-
sideration, and capacity, together with proper consent
by the parties, that is, no mistake, misrepresentation,
duress or undue influence. In addition, the contract must
not be illegal.
However, since we have already looked at these gen-
eral principles of the law of contract, it is only necessary
to highlight certain matters which are of importance in
the context of employment law.Fraud and illegality
The general rule is that the courts and employment
tribunals will not do anything to enforce either party’s
rights under a contract which is illegal. The general rule
does not apply, however, if the party seeking to enforce
the contract was not aware of the illegality or, possibly,
if his or her involvement is minimal compared to that of
the other party.
If any employer and employee agree that the latter be
treated as non-existent for tax and national insurance
purposes, with all payments being unrecorded cash
payments, neither party will be able to enforce the con-
tract. The employee would have rights, however, if the
employer deducted tax and national insurance contri-
butions (NICs) and, without the employee’s knowledge,
failed to account for the payments or submit any
records.
Legitimate tax avoidance schemes do not render a
contract of employment illegal. Thus, in Lightfootv D &
J Sporting Ltd(1996), L was employed as a head game-
keeper and was assisted by his wife who initially received
no remuneration from his employer. Later the em-
ployer entered into an agreement to pay one-third of L’s
income to his wife to save some liability on L’s tax and455