In some cases, it will be necessary for the Employment Rights Tribunal or the court to decide the issue of whether a particular worker is an employee or independent contractor.
A feature of protective legislation such as the Employment Rights Act, the Severance Payment Act and the Safety And Health At Work Act is that they all apply to employees and for this reason, in some circumstances, it will be necessary as a preliminary issue to determine whether a worker is an employee or independent contractor.
As with the other pieces of legislation cited above, there is a definition of “employee” in the Employment Rights Act 2012. Section 2 stipulates that “employee” means an individual who has entered into or works under, or where the employment has ended, worked under, a contract of employment.
Section 3 says that “contract of employment” means a contract of service or apprenticeship, whether expressed or implied and if it is expressed, whether oral or in writing.
Unlike the other pieces of legislation mentioned above, the act goes on to list the factors that must be considered in determining in any particular case whether a contract of employment exists.
However, at the bottom of the list of factors, there is a cautionary note which reads: “This list is not exhaustive and the factors outlined are all elements in a balancing exercise to determine the nature of the contract. No one factor, therefore, is by itself conclusive and the weight to be attached to any one of the factors is a matter for adjudication.”
The factors, although not so stated, are in fact distilled from the cases decided by the courts.
It is for this reason, and because it is impossible to define with precision what constitutes a “contract of service”, that it will be necessary to have regard to the tests that have been developed by the courts to resolve the issue of whether a person is an employee or self-employed (that is, an independent contractor).
Lawyers differ
Recently, there was animated discussion between two lawyers who expressed different views on the legal status of the West Indian cricketer.
In my research, I have come across standard player contracts which describe players as independent contractors and others which describe them as employees. However, it is well known that the label the parties put on their relationship is not conclusive and the court or tribunal considering the issue can determine the status of the worker based on the substance of the relationship.
In the context of team sports, it seems to be fairly well settled that in normal circumstances a professional player is an employee. It is submitted that the following extract from Halsbury Laws Of England correctly states the law:
“Sportsmen who are contractually bound to a particular club or a team are likely to be employees while participants in non-team sports are likely not to be. Skills exhibited by players in a team sport do not take them beyond the control of their club and therefore do not render them non-employees as they are bound to follow the general directions of the club or the team captain or other delegated authority of the club.”
In the English Court of Appeal case of Walker v Crystal Palace Football Club Ltd (1910), the court had to consider the legal status of a professional football player who had entered into a written contract to serve the respondents for one year at a weekly wage by playing football with the respondents’ team when required and attend regularly to training and observe the training and general instructions of the club. The training regulations required the players to attend at the ground every day at 10:30 a.m. and to be under the orders of the trainer for the day.
Own initiative
One of the arguments advanced by the appellants was that there was no contract of service with an employer because the footballer was at liberty to exercise his own initiative in playing the game. Farwell L. J. dismissed this argument with these words:
“That appears to me to be no answer. There are many employments in which the workman exercises initiative, but he may or may not be bound to obey the directions of his employer when given to him. If he has no duty to obey them, it may very well be that there is no service, but here not only is the agreement by the player that he will serve, but he also agrees to obey the training and general instructions of the club.
“I cannot doubt that he is bound to obey any directions which the captain, as the delegate of the club, may give him during the course of the game – that is to say, any direction that is within the terms of his employment as a football player.”
It is submitted that the extent of control or the right to exercise control over players, especially those with central contracts, will result in the creation of an employer-employee relationship between the players and the West Indies Cricket Board.
Merry Christmas to all.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@ caribsurf.com.