Non-Existent Employment Contracts: back to basics
Posted on 9th February 2024 at 13:30
When John Major made his “back to basics” call at the 1993 party conference, it could hardly have been foreseen that his well intended appeal for a return to common decency would soon be held up to ridicule by scandals involving his own MPs.
Today, when we read a media headline “Playboy dancer recruited by solicitor awarded almost £30,000”, we are more likely to think of scandals than basics. However, beneath the curious facts and decision in the tribunal claim BR v AD we find some valuable basic principles.
The claimant, Ms BR, was a dancer at a London club. This was where she met Mr AD, a consultant with a firm of solicitors. Mr AD offered her a job as his personal legal secretary, although she had no previous secretarial experience, and her duties were to involve “picking up clients at night when they visited high end restaurants and bars”. When the relationship soured, Ms BR issued a claim for unauthorised deductions, failure to issue written particulars of employment, and sexual harassment.
At an earlier hearing, the tribunal investigated whether the solicitors’ firm, Eldwick Law, could be held liable as BR’s true employer. Three basic elements came under initial scrutiny. (1) Was work being done for remuneration? It was. (2) Was there a degree of control over the individual? There was. (3) Did the contract’s provisions suggest it was one of service? Evidently so, even though it was not written.
But all of this left AD on the hook, not Eldwick Law. The firm had never communicated, or been asked to communicate, with BR over recruitment, induction, or PAYE logistics. It did not dictate how BR should carry out her work. Notably, when the relationship soured, BR did not report AB to the firm.
Here lies the second basic. Naïve and trusting as BR may have been, she had the right to written particulars of employment. She could have asked for them without fear of reprimand. Had she received a “back of an envelope” contract that did not name Eldwick Law, she could have queried this. By the time she sought damages for failure to provide particulars, via her tribunal claim, it was too late.
Before the tribunal made the award that inspired the above media headline, including £18,000 compensation for injury to feelings and £830.76 for the missing particulars, it came to light that AD had died. Having been represented by Counsel in both hearings, BR may only have thrown good money after bad.
Are your employment contracts in need of a review? Is there anything unclear about a worker’s status? Has anyone complained about a missing contract? We can lend a hand. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
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