Loughlan and Kelly v Northern Ireland Housing Executive [1998] IRLR 70
Clark v Oxfordshire Health Authority [1998] IRLR 125
The scope of application of employment rights is a key issue. The evolution of different types of working relationship has been accompanied by a move by some employers to exclude certain categories of worker from employment protection. Notable examples are casual employees, zero-hours contracts and bogus self-employment.
The Labour Government has shown a welcome willingness to tackle this issue. The National Minimum Wage Bill adopts a broad definition of worker which extends protection to many who would not otherwise be covered (see Issue 18 of LELR, Enforcing the minimum wage).
Two recent cases highlight the importance of the issue and the inconsistency of the present legal position. Loughlan and Kelly decided that a self-employed solicitor could claim discrimination under Northern Ireland's Fair Employment legislation for a refusal to add him to a panel of lawyers doing work for a public body.
This was because he would have been contracting to provide services personally, which brought him within the broad definition of employment in discrimination legislation. The position was different for a partner in a firm of solicitors as she would not be contracting to provide the service 'personally'.
This broad definition also applies to discrimination laws in England, Scotland and Wales. It has enabled a female barrister to challenge the predominantly male appointments to the lists of government counsel.
This case shows that the concept of engagement to provide personal work or labour is intended to be a wide and flexible one. It demonstrates the broad coverage of anti-discrimination laws.
The coverage of other employment rights is not so broad. Rights such as unfair dismissal are based on a narrower definition of 'employee', which requires a contract of employment.
The implications of this restriction are apparent from the Court of Appeal's decision in the important case of Mrs Clark. She worked for a health authority 'bank' of nurses as a staff nurse.
Her conditions of service stated that bank nurses are not employees and had no entitlement to guaranteed or continuous work. She was paid on Whitley Council terms and tax and National Insurance were deducted from her pay. Her contract included provisions on discipline, grievance and confidentiality.
The Employment Appeal Tribunal had decided in Mrs Clark's favour that she was continuously employed, even over those periods where she did not work but took what was effectively unpaid leave. The Court of Appeal overturned this.
The appeal court said that there was not a global contract of employment covering the whole period, because there was no 'mutuality of obligation' during the periods when Mrs Clark was not working. During those periods the Authority was under no obligation to offer work and the nurse was under no obligation to accept it.
This left open the question of whether Mrs Clark should be regarded as an employee for the periods when she was working which could be regarded as a specific engagement which amounted to a contract of employment.
This appears to leave the unsatisfactory situation that an individual may be an 'employee' for periods when she is working, but not for periods when she is not in situations where the employer avoids any liability to offer work or pay a retainer.
This fails to recognise the overall reality of the relationship between the worker and the beneficiary of her work and fails to give proper regard to the pattern of service over a period of time. It is a recipe for avoidance by employers and should be eradicated by adopting a broad definition of worker in line with the current flexible labour market.