Below is an example of an essay question with its corresponding introduction. Generally, I would very much advise against wasting words (by that I mean, not sticking strictly to the most pertinent aspects of the case) when the word limit is so demanding. However, the introduction is the one place where you should feel free to exercise a bit more freedom as a means to engaging the reader. Remember, you are permitted to exceed the coursework’s word limit by up to 10%.
Discuss the legal position of Pasquale as to the contractual relationship existing between him and both Giorgio Armani Hotel and the Agency, discussing the case law as well as the debate currently blossoming among scholars on this matter.
1. Introduction
The integration of temporary agency workers into the UK labour force has reached almost ubiquitous proportions over the past fifteen years with figures of said workers ranging from 275 000 to 1.3 million, although an estimation of 600 000 is regarded as eminently reliable (Deakin and Morris 2009). A rather more pertinent issue however is that, irrespective of the validity of numbers,“cases involving agency workers pose a great deal of difficulty for legal analysis” (Brodie 2008: 13). The intricate nuances of common law provide the yardstick(s) against which Pasquale’s possible contractual relationship with either the agency or end user can be assessed. As a precursor to such further discussion, a brief yet rigorous distinction must be drawn between the terminologies of ’employee’ and the ‘self-employed’ while the ‘unique’ status of agency workers is deserving of attention. Previous case law exploring the importance attached to the control and mutuality tests in addition to the new ‘phenomenon’ of the implied contract will do much of the groundwork for a subsequent analysis of Pasquale’s employment status which will be augmented by a brief overview of current debates relating to the status of the agency worker.
2. ‘Employees’, the ‘Self-Employed’ and ‘Agency Workers’
The law governing over the relationship between an employer and employee is based on the common law of contract where an employee is defined as “an individual who has entered into or works under……a contract of employment” and the contract of employment defined as “a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.” The wording of the aforementioned definitions is critical in distinguishing the ’employee’ and ‘worker’ from the ‘self-employed worker’ who enters into a contract for services as opposed to a contract of services – a seemingly minor divergence which, in abstaining from conferring employee status, dramatically curtails the individual’s statutory rights.
The crux of the debate regarding ‘agency workers’ therefore revolves around which of the two categories these workers fall into: an employee engaging in a contract of services or a self-employed worker delivering a contract for services. The sense of ambiguity surrounding this issue could be alleviated by the statutory regulations set out in the Employment Agencies Act 1973 and replaced by the Conduct of Employment Agencies and Employment Businesses Regulations 2003 , although the case of Wickens v Champion Employment was instrumental in illustrating the limitations of such an approach. In Wickens, it was held that, even though a written contract of services existed between the agency and workers, they were not employees based on lack of control and lack of mutual obligation (Pitt 2004). The flames of confusion were fanned further by the ruling in Ironmonger v Movefield Ltd that an agency worker was neither an employee nor self-employed but rather “thought to have a unique ‘sui generis’ status” (Deakin and Morris 2009: 153). Two conclusions can thus be drawn from the discussion so far; that the 2003 Regulations fail to define the status of agency workers leaving the task in the hands of common law and that, in establishing such status, the common law courts will pay particular attention to the ‘tests’ of control and mutuality of obligation.
BIBLIOGRAPHY
Bell, A. (2009), Nutshells: Employment Law, (4th ed.), Sweet & Maxwell.
Black, B. (2006), ‘Temporary Agency Workers: What are their rights and what are yours?’, Engineering Management, Vol. 16, No. 1, pp. 32-33.
Brodie, D. (2008), The Contract of Employment, Thomson Green.
Brown, E. (2008), ‘Protecting Agency Workers: Implied Contract or Legislation?’, Industrial Law Journal, Vol. 37, No. 2, pp. 178-187.
City Law School (2008), Employment Law In Practice, (8th ed.), Oxford University Press: OUP.
Countouris, N. and Horton, R. (2009), ‘The Temporary Agency Work Directive: Another Broken Promise?’, Industrial Law Journal, Vol. 38, No. 3, pp. 329-338.
Craig, V. and Walker, S. (2007), Employment Law: An Introduction, (3rd ed.), Thomson W. Green.
