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2 Employment in National Law

From: Employment Contracts and Private International Law (2nd Edition)

Louise Merrett

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 21 April 2024

Choice of law — Contractual obligations — Employment contracts — Jurisdiction over contracts of employment — Employment

This chapter discusses employment in national law. The starting point in England and other European countries remains a distinction between contracts of service and contracts for services, or to put it another way, between employment and self-employment. There is no single test for determining employee status in English law and the position is in many respects uncertain. The courts apply a multi-factor test, considering elements of personal subordination and also that the parties mutually agree that the employee will work and will be provided with work in the future. The courts will also consider the economic reality and the extent to which the employee can be said to be in business on his own account. However, employment rights are now increasingly given to a wider category of workers who are not employees under the strict traditional definition, but conversely are not genuinely self-employed in the sense of operating in a business-to-business context. These include casual workers, zero hours and gig economy workers, self-employed tradesmen and service providers, and agency workers. The chapter then looks at the meaning of employment in other European jurisdictions.

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