1.Why is the distinction between Employment and self- employment Important?
Different type of contract leads to different rules for taxation, health and safety provisions, protection of contract and liability in tort and contract.
2.Distinguishing employment from self-employment
Basic concepts
Employee
Self-employed/Independent contractor
Contract of Service
Contract for Service
General Rule
the actual working arrangement, the reality of the situation, the relative bargaining power between the parties based on definitions when determining employment status.
Three main tests
Control test
Integration test
Multiple test/Economic reality test
Other relevant factors
3.Employment contract
Employment contract
Offer + acceptance---agreement
Consideration
Intention to create legal relations
Form of the contract
written or oral
Requirement for written particulars
An employer must give “written particulars of employment” to all employees within 2 month of the beginning of the employment.
Express and implied terms
Express
can be either oral or written
Implied terms
arising from
Common law
Statute
Collective agreements
Custom and practice within a profession or industry.
Varying terms of an employment contract
Varying terms without changing of contract
Changing contract
Signing new contract
4.Duties of employment contract
Common law duties of employers and employees
Employee’s duties
Fundamental: faithful services
Others
Reasonable competence
Obedience to the employer’s instructions
Personal service
......
Employer’s duties
Fundamental: mutual trust and confidence
Others
To pay remuneration to employees
To indemnify the employee
To provide work
......
Statutory duties of employers and rights of employees
Employer’s duties
Pay
Equality
Maternity and paternity rights
Flexible working
Parental leave
Health and safety
Being subject to detriment due to health and safety