Employment Status

Florence Smith • 9 November 2020



There are three main types of employment status for employment law purposes – employee, worker and self-employed person/contractor.


Employees have more rights and responsibilities than workers and at common law, certain terms are implied into every contract of employment, but not into other employment relationships. It is therefore crucial that the courts accurately determine an individual’s employment status, as this will dictate their employment rights.


There have been a number of recent high profile cases, to include Pimlico Plumbers Ltd & Anor v Smith [2018] and Uber v Aslam & others [2018] which have scrutinised the issue of employment and worker status.  


In the recent case of Gorman v Terence Paul (Manchester) Ltd [2020] an Employment Tribunal found that a ‘self-employed’ hairdresser was in fact an employee, despite the Claimant being responsible for keeping her own accounts and filing tax returns. 


Several of the leading cases have arisen out of the ever expanding “gig economy”, which has highlighted the importance of the correct classification of employment status in an environment where parties increasingly seek flexibility in working relationships. 


The Courts have increasingly looked behind the label given to a contract and considered the actual nature of the relationship between the parties, taking into consideration factors such as mutuality of obligations, the degree of control exercised by the employer and the right of an individual to send a substitute.  The above-mentioned decisions show that the Courts will not simply accept a false or inaccurate labelling of a contractual relationship, which results in individuals losing out on rights and protection they are in fact entitled to. 


Should you have any concerns in relation to your employment status and your entitlement to certain rights e.g. holiday pay, sick pay or the right not to be unfairly dismissed, please contact our office on 02890244999 or by email info@donnellykinder.com and ask to speak to a member of the Employment Department. 


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RESIDENCE

by C Cummings • 14 April 2025
Are you a parent who has recently separated from the father/mother of your children? A relationship breakdown is a painful time for both parents and the children of a family. It can be made even more painful when arrangements for the children cannot be agreed between both parents. Mediation is typically advisable as a means of negotiating a solution in the best interests of the children. However, in some cases mediation is unsuccessful and an application to the Family Court will need to be made. One question that may arise is where the child will reside, this is referred to as the child’s ‘residence’. Residence refers to where a child will live for the majority of the time. When a relationship breaks down, the question of residency can become a disputed matter. Residency can be resolved by agreement; however, the matter may need to be referred to the court. If you wish to receive tailored advice in relation to your individual family circumstance, please contact our team at Donnelly & Kinder Solicitors. A resident parent will be responsible for making the day-to-day decisions concerning the child. However, if the other parent holds Parental Responsibility, their input will be needed for bigger decisions relating to the upbringing of the child. Residency does not need to be court ordered, however, if there is a Residence Order in place this will define were the child lives until they reach the age of 16. In most cases there will be a resident parent, this is the parent with whom the child lives for the majority of the time. The other parent will then be considered the parent who is having ‘contact’ with the child. ‘Contact’ can range from indirect contact such as the exchange of letters, gifts, cards, text messages etc. to direct contact such as overnight stays. Contact arrangements will vary depending on the individual circumstances of each family. Contact can be court ordered by way of a Contact Order or can be simply agreed between the parents. It is also possible that a shared care arrangement can be agreed between the parents. Alternatively, a Joint Residence Order can be made by the court, which creates a shared care arrangement between the parents. If circumstances change after any court order is granted, an application can be made to ask the court to vary or discharge any order made. If the above is relevant to your circumstances, you will require a Solicitor who is both experienced and empathetic. At Donnelly & Kinder Solicitors, we tailor our advice to your own unique circumstances to achieve the best possible outcome for you and your family. We advise on all aspects of family law including Divorce, Matrimonial Agreements, the division of matrimonial finances and Ancillary Relief. Please contact Céadhra on 02890244999 or ccummings@donnellykinder.com for more information

ENDURING POWERS OF ATTORNEY

by Céadhra Cummings • 20 March 2025
When future planning the focus is often on the preparation of a will. The potential that one may lose capacity during their lifetime can be overlooked. Loss of mental capacity can sadly and suddenly happen at any age; the Department of Health has indicated that most people in Northern Ireland will at some point in their life either lack mental capacity or encounter persons who lack capacity. Thankfully, it is possible to nominate Attorneys who can manage your property and financial affairs should mental incapacity arise. An Enduring Power of Attorney (EPA) allows a person (the Donor) to give another person (their Attorney) authority to act on their behalf in respect of their financial affairs whilst they are still alive but lack capacity. Anyone over the age of 18 with mental capacity can create an EPA. However, if the person no longer has capacity unfortunately it is too late to create an EPA. This is why is it so important when future planning to consider an EPA. An EPA can ease financial stresses for your family at a time of emotional strain. Creating an EPA is inexpensive, yet it can save your family significant future fees, difficulties and delays. Advance planning in legal, financial and personal matters will protect your finances and your independence. Ensuring your affairs are in good order will give you peace of mind and the contentment of knowing that you have taken every action to best protect your interests and that of your family. For further information regarding any of the above or for a free, no obligation discussion please contact us by email on ccummings@donnellykinder.com or call our office on 02890 244 999.

DIVORCE AND FINANCIAL SETTLEMENT

by C CUMMINGS • 3 March 2025
In the wake of the breakdown of a marriage the process of divorce and financial separation can appear overwhelming and confusing. However, it can be made straightforward when the correct advice is given. It is your Solicitor’s responsibility to explain the process thoroughly, so you are able to understand and consider your options. There are two prongs to the breakdown of a marriage, the divorce, and the settlement of the matrimonial finances. It is advisable in most cases that the finances are dealt with in the first instance with a view to coming to an agreement between the parties as to the division of the matrimonial assets. If an agreement can be arrived at, it can be drafted into what is called a Matrimonial Agreement. However, if an agreement cannot be arrived at informally then the matter must proceed to Court for a Judge’s adjudication. In order to apply to the Court for Ancillary Relief (financial settlement) one must petition for divorce. There is only one ground for divorce and that is that the marriage has irretrievably broken down. However, there are five facts that can be relied upon and they are as follows: 1. Two-year separation with consent 2. Five-year separation 3. Unreasonable behaviour 4. Adultery 5. Desertion There are two ‘non-fault’ facts available in this jurisdiction and those are two-year separation with consent and five-year separation. Therefore, it is sometimes necessary for a fault-based petition to be used in order to issue proceedings immediately. Typically couples in this jurisdiction will petition on two-year separation with the consent of both parties. This is seen as one of the most amicable ways to divorce in this jurisdiction but requires a minimum of two years after separation before a petition can be lodged. If you require further advice in relation to divorce or separation, please contact our Céadhra Cummings by phone on 02890 244 999 or by email at ccummings@donnellykinder.com .