6 |
The only explanation is that this drafting was done by those more familiar with American English than with British English. |
An employment was once described as a post and as something ‘more or less analogous to an office’,25 but modern cases generally take a different tack and equate employment with a contract of service. In this way tax law uses a concept familiar in other parts of UK domestic law such as tort and employment law and this what is now to be found in section 4(1)(a). In EC law the boundary between Articles 48 and 52 of the EC Treaty (now Articles 39 and 43) builds on the same foundations by characterising the essence of employment (as opposed to self employment) status as being the relationship of subordination; in the absence of subordination an activity carried out for the benefit of other economic operators or consumers is regarded as self-employment.26 If the arrangement under which sums are paid to a taxpayer is one for services, it falls outside the ITEPA. |
The common law courts have used different tests at different times.27 It is not possible to gain much assistance by comparing the facts of previous cases to see which facts are common, which are different and what weight was given to the common facts; the evidence must be weighed separately in each case.28 At one period the approach was based on control.29 Where subjection to a person (the master) was inappropriate the courts looked at subjection to the rules of an organisation—the integration test.30 Another test was based on ‘economic reality’ and took into account methods of payment, the freedom to hire others, whether the workers provided their own equipment, whether they had investments in their own business, arrangements for sick pay and holiday pay and how the worker was treated for income tax and National Insurance.31 This last point is particularly unhelpful when the point in issue one is classification for tax and NIC. A relatively recent development has produced a test based on mutuality of obligation32 and looks at the duration of employment, regularity of employment, whether the workers have the right to refuse work and trade custom. |