The European Working Conditions Observatory

Atypical work

An employee is an individual who has entered into or works under (or, where the work has ceased, worked under) a contract of employment (ERA 1996).

An employee is that individual hired to do a specific job for the employer. The employee is hired after he/she applied for the job, interviewed and is accepted by the employer to do the job. The terms of an individual's employment are specified by an offer letter, an employment contract, or verbally.

The growth of atypical employment has made people not to know where they belong. That means people now fall into somewhere between employment and self-employment (Taylor and Emir 2006). Though, people are entitled to the full protection of employment law, some are but not all are under this protection. Painter and Holmes (2002) see this law as useless in their view; the government should reform this law so that one can be able to define who fall under the category of who an "employee" is. Earnshaw et al (2002) suggest who an employee is, a distinction between (a) an individual who performs services for another person and (b) an individual who provides a service. This distinction according to Earnshaw et al (2002) shows that the former is a worker while the latter is self-employed.

Atypical workers

Casual workers

Sub contractors employed for long term basis

Home workers

Agency worker

Part-time workers

Atypical worker refers to employment relationships not conforming to the 'typical' model of full-time, regular, open-ended employment with a single employer over a long time span. This kind of employment is referred to as socially secure or stable. Full or regular job guaranty a regular income and part goes in as tax for social security and pension payment (EWCO 2010).

Over the years, there have been significant increases in the non standard employment; there have been different cases about this issue. Expect an employee is properly defined as according to Painter and Holmes (2002) there will always be a question to answer.

The European Working Conditions Observatory (EWCO) (2010) carried out a study to explore actions which seek to guarantee both flexibility and security in the labour market through a degree of regulation and monitoring of these forms of work. EWCO came up with the finding that the use of very atypical workers raises some particular challenges, such as who is responsible in terms of health and safety of workers, the risk of poverty and the propensity for undeclared work. These are issues that governments have to look at to consider which best solution to take.

In the case of Byrne Brothers (Formwork) Ltd v Baird and others (2002) the EAT came to a different decision when considering whether or not a group of sub-contractors working in the construction industry were entitled to rights under the Working Time Regulations. It was decided that these people were not genuinely self -employed and were instead dependent workers. They have worked for the same employer for some time; they were fully integrated into the workforce, used the employer's equipments and took no economic risk themselves. The only factor that pointer the other way was that they have a limited power to appoint substitutes to work in their place on days when they themselves could not. The EAT decided that this power was not inconsistent with in an obligation to provide personal service because of the majority of the time a personal service was provided.

Casual workers: these workers are at work to perform a service on behalf of the employer and not there to provide a service to the employer. People work casually in pubs, cinemas and restaurants they cover shifts for full staffs as when required. Most casual workers according to Taylor and Emir (2006) would be classified as workers for employment law purposes. This is because the organisation they work for control their activities when they are at work and act as employees.

Carmichael and another v National power plc (2000) in 1989 Mrs Carmichael and Mrs Leese applied for a job at Blythe power stations in Northumberland as tour guides. The job requires them to supervise parties of visitors on preselected tour routes around the power station site. The job was part time had no fix hours they can be called on at anytime and they were paid on an hourly basis. They can work more or less hours all these were made clear to them in their offer letters that it was on a casual as required basis. In 1995, they asked the employer to provide them with written particulars of their terms and conditions of employment. Their request was refused on the ground that they were not employees working under contracts of service. The ladies were unsuccessful at the tribunal on the grounds that their case founders on the rock of absence of mutuality. The women were later successful at the Court of Appeal by a majority, that there was mutuality of obligation via an umbrella contract, because there was an obligation to accept and perform some reasonable amount of work for the power station.

Sub-contractors employed on a long term basis: these are self employed people who sometime work in a particular place for up to four to five months. The relationship that exists here is unlikely to constitute a contract of service. But if the employment last longer the relationship will change not withstanding that there is a written contract. In the case of Byrne Brothers (formwork) Ltd v Baird and others (2002) the court decided that they were workers despite having signed contract which clearly identified them as working on a self employed basis and pay tax as self employed persons. The findings were that the men provided personal services, and they were not carrying on a business undertaking.

Home workers these kinds of workers carry out their jobs just like every other atypical worker. In some cases, they work for one or more employer they carry out jobs that could be done in an office or factory that may previously have been. These home workers were proven to have the same employment right as anyone else would doing similar work on an employer's premises. In the case of Airfix Footwear Ltd v Cope (1978) and in Nethermere (St Neots) Ltd v Taverna and another 1984, in which individuals were employed under contracts of service. Despite working away from their factories, the same level of quality control was exercised and there was found to be mutuality of obligation.

Agency worker temporary workers are on the increase in the UK they provide assistance from temporary clerical staffs to nursing staffs. A temporary worker