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You are in: Home Page | About Thompsons | Publications | LELR Issue 41
The band (of reasonable responses) falls silent
The relations are coming
Getting in on the act
Protecting collective agreements
Still waiting for pensions for transsexuals
Social policy is no defence for employers
Full time pay for full time courses
Bain v Post Office Counters [1999] ET 27 August 1999 unreported; Edmunds v Lawson [1999] Times Law Reports 11 October 1999
There have been two recent cases looking at the definition of 'worker' as defined in the National Minimum Wage Act 1998 (the Act). Both decisions are encouraging for potential applicants and perhaps an indication that tribunals are going to interpret the legislation widely.
Mrs Bains, a sub-postmistress, claimed she was a worker under the Act and entitled to the minimum wage. She accepted that her contract was a contract for services and therefore she was not an employee, but argued that her contract did fall within the definition of 'worker' as defined by the Act. The Respondents argued that she was not a worker as her services were not 'personal' (see section 54(3)(b)) but the tribunal disagreed stating that many of her duties and responsibilities would be virtually impossible to fulfil without a fair degree of personal input. Her contract stipulated that she had a duty to ensure that transactions were carried out accurately, with reasonable steps to prevent fraud, that documentation was properly completed and timeously dispatched, and any losses incurred by her assistants were to be discharged by the applicant. She was also expected to undertake training sessions in putting the customer first. Her claim was found to have fitted into the definition of worker in accordance with section 54(3)(b).
Ms Edmunds, a pupil barrister, was also successful in her claim. A pupillage was held to be an apprenticeship. She was not there as a volunteer neither was her twelve months as a pupil purely educational both suggested by the respondents. It was held that the claimant (Ms Edmonds had sought a declaration from the Queens Bench Division of the High Court) was a worker under section 54(3)(a) under a contact of apprenticeship. It should be noted, however, that permission to appeal was granted.
Until now there has been little case law on what is a worker. Most of the case law is on who is an employee. With the extension of some employment rights to workers as well as employees, these cases will have implications beyond the minimum wage legislation.