Contract of employment and Employment relationship.doc

The eat held that there was only one contract which

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The EAT held that there was only one contract which governed the pre – work and post work phases. According to the Sarkar case therefore, the employee is employed once the contract is made even though he may begin work several months later. It means that the employee can enjoy much wider rights in the pre – work stage than that which is actually envisaged. The Post employment stage When a contract of employment is terminated is the whole contract dead or just the performance of the contract? Can the performance be ended for some purposes and not for others? The question is especially pertinent when there are terms restricting the activities of the employee once the employment has come to an end. E.g. restrictive covenants. See the case of LG Electronics Africa Logistics Fze v Charles Kimari (HCCC No. 346 of 2012) – dealing with the Constitutionality of restrictive covenants. DEFINITION OF EMPLOYER AND EMPLOYEE Definition of employer According to Simon Deakin (2001) – a purely contractual analysis of the employee/employer relationship provides employers with strong incentives to avoid the application of protective legislation. 3
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The thrust of Deakin’s argument is that there are situations in which, simply considering who an employer or employee is from a purely contractual point of view may cause a substantive injustice, especially when the “employer” is seeking to evade liability or legal responsibility. He asks the question: “How far is the law prepared to go in upsetting, after the event, the contractual allocation of risks which the parties have made?” in other words, should the law intervene or interfere with the freedom of contract where injustice may take place? Where the bargaining power of the employee is at stake? Are there any justifications for overriding the contractual allocation of risks? This question is especially pertinent due to the nature of modern work arrangements e.g. the presence of an intermediary personal service company. See: Abbey Life Assurance Co Ltd v Tansell [2000] IRLR 387: In this case, the complainant had set up his own personal service company for the supply of his services as a complete consultant (intelligents). He had contracted with an employment agency (MHC) to supply his services to the end user (Abbey Life). 5 months into the agreement Abbey Life terminated the services of Tansell shortly after he had been diagnosed with diabetes. He brought a claim against MHC and Abbey Life for disability discrimination. The Court of Appeal held that it was Abbey Life and not MHC that was liable. The legislation concerned (the Disability Discrimination Act) imposes equal treatment obligation on a “Principal” to whom the labour of a contract worker is 4
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supplied under the terms of a contract entered into between the Principal and another person.
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  • Winter '12
  • kariuki
  • Tribunal, Simon Deakin, Ms Sarkar

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