Chris Bryden & Michael Salter consider the complexities of sham employment terms & the true nature of the contractual relationship
The question of whether a person doing a job of work is an employee (and, as such, able to benefit from the breadth of protection afforded to such status by employment law) or merely a worker, or some other status (for example an independent contractor, who is self-employed) is a vexed one.
Courts at senior levels have laid down various guidelines, which have been subjected to scrutiny and analysis by the lower courts. However, recent authority has now confirmed that the courts should search for the true intention of the parties and not be bound by the strict wording of the contract if this does not reflect reality.
The Court of Appeal (Smith, Sedley and Aikens LJJ) handed down its judgment in the case of Autoclenz ltd v Belcher and Others [2009] EWCA Civ 1046, [2009] All ER (D) 134 (Oct) last month.
Autoclenz was a company that cleaned cars ready
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