3. The Employment Relationship and the Contract of Employment

Abstract

This chapter analyses the various tests adopted by the courts and tribunals to distinguish between the contract of employment and the contract for services. It considers the history of employment, moving from a master and servant arrangement to the emergence of the ‘mutual’ or ‘reciprocal’ contract of employment. It considers the statutory concept of continuous employment, whereby an individual may be required under statute to establish a period of continuous employment on the basis of a contract of employment in order to avail him/herself of certain statutory employment protection rights. Finally, the chapter turns to the effect of an illegal contract of employment, whether it was illegal in its purpose or objective when it was formed, or expressly or implicitly prohibited by statute. There is also consideration of the illegal performance of a legal contract.