review of Bend it like bekham
...chael & anor v National Power plc (HL) 1999 ICR 1226, House of Lords and Stevedoring & Haulage Services Ltd v Fuller 2001 IRLR 627, CA). Although the distinction between "employee" and "self-employed" is still extremely important, it is gradually becoming less so for employment law purposes as working practices change and various forms of flexible working become more normal. The current trend is to extend statutory employment rights not only to "employees" as such but also to those who come within the less restrictive definition of worker (see for example notes on DEDUCTIONS FROM WAGES ETC/workers to whom the ERA rules apply , on the 1998 Working Time Regulations and on Flexible working ). By the same token it is fair to say that although the distinction between employee and "self-employed" may be gradually becoming less important as employment rights are extended to anyone who qualifies as a worker , it is also the case that it is becoming more difficult to know where to draw the line as the nature of work relationships become more complex and diverse (for recent examples see Franks v Reuters CA 2003 EWCA Civ 417, Court of Appeal on 10th April 2003 and Dacas v Brook Street Bureau (UK) Ltd & anr EAT 2003 IRLR 190, EAT on 11th December 2002). It must be remembered that even if a person is an "employee" he will only enjoy many of the statutory rights of "employees" if he has completed a minimum period of continuous employment (see notes at Qualifying periods of service for rights/an outline summary ). So if he works only when called on, for example as a "pool" nurse working for a hospital, he may be an employee while working but might not be able to claim continuous employment for a full year and thus might not be able to claim unfair dismissal (see notes at Qualifying periods of service for rights/unfair dismissal and see for example Clark v Oxfordshire Health Authority CA 1998 RLR 125, CA and HCA International Ltd v Leamy & anor, EAT on 16th July 2003). The government stated in November 2001 that it was intending to "embark on a review of the provisions of general employment law that relate to the distinction between an employee and a worker" (see Hansard, House of Commons for 27th November 2001 at col 865). This was followed in July 1992 by a DTI consultation document (consultation ended 11th December 2002) on whether rights currently enjoyed only by employees should be extended to other types of worker. See also EMPLOYMENT and/or Definitions and interpretation/worker and/or EMPLOYEE/casual and home workers and/or Company Directors/a general introductory note. These notes should be read subject to the general points re implied terms in IMPLIED TERMS IN EMPLOYMENT CONTRACTS/a general introductory note and in particular to the overriding point that courts and tribunals exercise considerable caution before implying terms into any contract (Liverpool City Council v Irwin 1976 2 All ER, HL). That being said, it is normal for many duties of an employee to be unspoken. They will be "implied contractual terms" but no contract will, or could, include every term governing the relationship of the employee and employer. Many terms will simply be "implied". An example is the duty of an employee to take reasonable care of the employer's property, normally implied if not expressly set out in the employee's contract (Lister v Romford Ice and Cold Storage Co Ltd [1957] 1 All ER 125). If sufficiently serious, breach of an implied term can justify disciplinary action, and sometimes even dismissal, just as much as breach of an express term. For this reason industrial action such as a work to rule, in which by definition there can be no breach of any express contract provision, can nevertheless sometimes justify disciplinary action and even dismissal ( British Telecom plc v Ticehurst CA 1992 ICR 383, CA). Although there is an implied duty of "trust and confidence" in employment contracts there is no overall implied duty of disclosure and in normal cases neither party is obliged to disclose to the other all facts which the other may consider relevant to deciding to enter into or cont...