The Transfer of Employees

Abstract

In examining the distinction between a contract of service and one for services it has been stated that the control notion is by no means the determining factor in establishing the employer‐employee relationship. Other notions come into play. It will be recalled that the reasons why it is essential to know who is, and who is not an employee, are, inter alia, to establish whether or not a worker is entitled to the statutory employment protection rights given solely to employees, whether the employer is liable to make certain statutory deductions, for example, national insurance and income tax; whether any vicarious liability may be imputed to the employer for torts committed by his employee, whether the employer is in breach of the health and safety at work obligations toward his employee, and so on. A topic not much discussed by the courts and by writings generally is whether the criteria or notions used for the establishment of the employee status are the same as those for the transfer or loan by the employer (who may be called the permanent employer) of his employee to another employer (who may be termed as the temporary employer), over a specified or unspecified period of time. The employee may be loaned with or without plant supplied by the permanent employer. It is submitted that the approach adopted by the courts so as to establish the status of employee is not the same where the transfer of an employee is in question. Case law shows that the emphasis is placed essentially on the control notion. It is not hard to understand the reason why this is so.