In Pulse Healthcare v Carewatch Care the EAT has held that carers employed by a contractor who were engaged under a zero hours contract were employed under a global contract of employment, with continuity preserved throughout.

The carers in question were employed by Carewatch Care Services Ltd, a company contracted to a PCT to provide care for a severely disabled individual. The contract was re-tendered and taken over by Pulse Healthcare and the carers asserted they had TUPE rights against the new contractor, but as a preliminary point, it had to be established that the carers were employees with the necessary continuous service.

The carers had a zero hours contract under which it stated there was no obligation to provide work and the employees were ostensibly free to work for another employer.

The employment tribunal found that the contract given to the carers did not reflect the true agreement between the parties. In practice they performed services, were obliged to carry out the work offered and had to do it personally. Finally, the argument that these were individual discrete contracts as opposed to a global umbrella arrangement was not upheld. Carewatch provided a critical care package ‘of a most challenging kind’. The employment tribunal described it as ‘fanciful’ to suppose that the employer relied only on ad hoc arrangements in the provision of such a service.

The employment judge therefore was entitled to hold that the claimants were employed by Carewatch under global contracts of employment with full continuity. The issue of whether, as employees, they actually transferred to Pulse under TUPE was remitted to an employment tribunal for further deliberation.

Please take a look at the latest edition of the Pharos Legal Beacon – updating you on developments in employment law…Pharos Legal Beacon – edition 15 (August 2012)

This is a case which emphasises the danger of accepting received wisdom about employment status…

The lapdancing industry has traditionally considered its lapdancers to be self-employed and treated them accordingly. Self-employed individuals are treated differently to employed individuals for both employment law and tax purposes.

In the recent case of Quashie v Stringfellows Restaurants Limited UKEAT/0289/11, however, the Employment Appeal Tribunal (“EAT”) reversed an employment tribunal’s decision to dismiss an unfair dismissal claim on the grounds that the lap dancer claimant was not an employee.

The EAT held that on a proper construction of the employment tribunal’s findings, the claimant was an employee. The respondent had the right to control the claimant’s activities when she was at work and even though the claimant worked under an ‘umbrella contract’ covering each separate engagement, the relationship gave rise to an expectation of continued engagement. As such there was sufficient mutuality of obligation for employment status.

It was also neither here nor there that the lapdancer was paid, in effect, by clients rather than the respondent (via the beautifully coined “Heavenly Money” vouchers).

The moral of this tale being that just because “everyone says” a certain type of worker is self-employed does not make it true as a matter of law. It is a truism, but each case turns on its own specific facts.

Please take a look at the latest edition of the Pharos Legal Beacon – updating you on developments in employment law… Pharos Legal Beacon February 2012

Please take a look at the latest edition of the Pharos Legal Beacon – updating you on developments in employment law… Pharos Beacon January 2012