What does the examiner want to see in your answer?
The examiner wants you to resolve the legal problem outlined in the exam question. In order to do this you are expected to show your ability to apply the law to the set of facts outlined in the problem question.
How should I answer law problem questions?
There are two approaches to answering problem questions. One approach is the FLAC approach, and the other is the IRAC approach. I normally use the IRAC approach.
How does the IRAC approach work?
First you identify legal issue raised in the problem question.
Then you state the relevant rule or law.
Then you apply the law to the facts.
Finally, you reach a conclusion on the issue.
What common mistakes do students make when answering problem questions?
Commonly students fail to structure their work well. Using the IRAC approach helps students to structure their answers well, and avoid this common mistake. Additionally, students often fail to mention relevant law. It is crucial that you do not mention irrelevant law. When relevant law is discussed, it is important to support it by referencing legal authorities such as cases and statutes.
In the UK legal system an individual working with an organisation can be classified as either 'worker', 'employee' or 'self-employed'. You can learn more out more about the differences between the three classifications here. The Employment Rights Act and the Working Time Regulations 1998 provide statutory definitions. However, these definitions are limited. Consequently, over the years, the courts have developed three tests to determine which category individuals fall under. They are the control test, the integration test and the multi-factor test.
What is the control test?
This test questions the level or degree of control that was exercised by the employer over the employee. It was applied in Ready Mixed Concrete (South East) Ltd v Minister Pensions and National Insurance (1968) 2 QB 497.
The courts decided that a lorry driver was self-employed and not an employee because he could occasionally substitute another driver to do his work.
What is the integration test?
This test questions whether the person's work is done as an 'integral part of the business' or whether it is merely an accessory to it. The test was first identified in Cassidy v Ministry of Health 1951, 2 KB 343, CA.
The court decided that a surgeon was an an employee for the NHS even though his work could not be controlled by the NHS.
What is the multi-factor test?
This test does not focus on one factor. Instead, it considers all factors. It recognises that some factors may point to self-employment status and some may point to employee status. However, its main question is whether the evidence overall points to the individual being an employee or self-employed?
The test was applied in Market Investigations v Minister of Social Security 1969 2 QB 173.
In this case Cook J stated that the fundamental question is, 'Is the person who has engaged himself to perform these services performing them as a person in business or on his own account?'
In the UK employment relationships fall into one of three categories. They are 'worker', 'employee' or 'self-employed'. Determining the category that an individual falls under is significant for both the individual and contracting organisation, because at the heart of these categories lies three key issues.
The issues are as follows:
(1) Who has responsibility for liability matters such as tax and National Insurance Contributions (NIC), workplace injury and damage to others,
(2) what contractual rights does the contracting party have with respect to the individual's activities, and
(3) what statutory rights does the individual accrues such as unfair dismissal rights, maternity rights, redundancy pay, etc.
So, who is a 'worker'?
Most individuals except for self-employed persons, are workers.
The Working Time Regulations 1998 defines 'worker' as an individual who has entered into or works under a 'contract of employment or any other contract, whether express or implied, the individual undertakes to perform or to do personally any work or services for another party.'
In James v Redcats (Brands) (2007) IRLR 296 the Employment Tribunal outlined two factors that are critical to identifying whether an individual is a worker. It was stated that this depends on whether the individual and organisation are involved in mutuality of obligations during the time the worker undertakes work for the organisation and personal service being the the dominant purpose of the contract.
Being a worker affords us rights including working time limits and minimum wage. However, more rights are afforded to an 'employee'. For example s 94 (1) ERA affords employees the right to not be unfairly dismissed, but this right is not afforded to workers.
Who is an 'employee'?
Section 230(1) Employment Rights Act defines an employee as an individual who has entered into or works under a contract of employment.
Section 230 (2) defines a 'contract of employment' as a contract of service or apprenticeship, whether express or implied, and (if its express) whether oral or in writing'.
Who is 'self-employed'?
Unlike the employee, the self-employed person lacks a contract of employment with an employer. Such an individual is usually contracted to provide services for a fee that they have likely decided independently. The self-employed person has particular legal rights, but under existing statutes, these are fewer than those afforded to employees.
The limits of statutes in determining the category that individuals fall under:
Statutes have not always been sufficient in determining which of the three categories an individual falls under. As a result, case law has been used to help us determine who is a worker, employee or self-employed. A significant amount of the case law focuses on the differences between an employee and self-employed. Three tests have been developed to determine the differences between them. They are the control test, the integration test and the multiple test. You can read more about them here.