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Published online by Cambridge University Press: 17 January 2008
This article provides a thorough analysis of the employment contract in comparative European private law and Community law. It argues that a common concept of employment contract should prevail in European private law. In that respect, the autonomous and broad interpretation which has been given to the term ‘worker’ in Community law could be a basis for adoption of an autonomous concept of the employment contract in European private law.
1 In France: Pélissier, J, A Supiot and A Jeammaud Droit du travail (21st ednDalloz Paris 2002); in Italy:Google ScholarCarinci, F, Tamajo, R De Luca, Tosi, P and Treu, TDiritto del Lavoro 2, Il Rapporto di lavoro subordinato(5th ednUtet Turin 2002); in England:Google ScholarDeakin, SF and Morris, GSLabour Law (3rd ednButterworths London);Google ScholarUpex, R, Benny, R, and Hardy, S, Labour Law (1st ednOUP Oxford 2004); in Spain:Google ScholarValverde, M, Gutirrez, Rodriguez-Sanudo, and Murcia, GarciaDerecho del Trabajo (10th edn Tecnos Madrid 2001); for comparative law in matters of labour law, there are two permanent encyclopaedias: one is bilingual French/German, Droit du travail (Editions Techniques Paris); the other is in English, R Blanpain (General Editor) International Encyclopedia of Labour Law (Deventer, Kluwer).Google Scholar
2 For labour law, see Art L. 121–1 s of the French Labour Law Code. In English law, the main statutory provision is section 230(1) of the Employment Rights Act 1996.
3 For example, in the case of the law of tort, it may be necessary to determine whether a person is an employee or not: see particularly T Weir Tort Law (OUP Oxford 2002) 99 et seq, and in French law, art 1384 of the Civil Code which particularly states: ‘Masters and employers [are liable] for the damage caused by their servants and employees in the functions for which they have been employed…’
4 There is now a single definition in French law in the area of labour and social security law: see Cass Soc (13 Nov 1996) Société Générale v URSSAF de la Haute Garonne JCP 1997. E.II.911, note J Bathélémy, Dr Soc 1996, p. 1067, note J-J Dupeyroux. Dutch social security law uses the definition set out in Art 610 of the Dutch Civil Code to describe the relation of salaried work for the purposes of social security. However, the interpretation of this text in matters relating to social security is different from that used by labour judges. In the UK, the position is governed by the Social Security Contributions and Benefits Act 1992 (as amended). Section 1 divides what it calls ‘earners’ into different categories, the following of which are relevant for present purposes: ‘employed earners’ (who pay national insurance contributions under Class 1) and ‘self-employed earners’ (who pay contributions under Classes 2 and 4): see ss 1, 6, 11, and 15. The two terms are defined in section 2. It is generally accepted that the test for determining status under the social security legislation is the test for determining employment status under employment law. In other words, those areas of the law which depend upon the categories of employment and self-employment for their application (such as social security law and tax law) follow the tests adopted in employment law. See Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173, Smith v Reliance Water Controls Ltd [2003] EWCA Civ 1153, Hall (Inspector of Taxes) v Lorimer [1994] ICR 218; also see generally D Clutterbuck ‘Employed or self employed?’ Taxation 2004, 547–9.
5 In English law, the definition of ‘employee’ in employment law is also used in tax law. Thus, employees are liable to taxation under the Income Tax (Earnings and Pensions) Act 2003, s 9 (formerly the Income and Corporation Tax Act 1988 (ICTA), s 19(1) and Schedule E), whereas the self-employed are liable under ICTA, s 18 and Schedule D. In French law, employees are taxed in a separate schedule titled ‘Traitements, salaires, pensions et rentes viagères’ allowing special deductions.
6 Art 18 et seqq of Brussels I Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments, Civil and Commercial Matters of 22 December 2000; see also Art 6 of the Rome Convention on the Law Applicable to Contractual Obligations, dated 19 June 1980.
7 See above.
8 This proposition is clearly stated in ECJ decision, Case C-85/96 Maria Martinez Sala v Freistaat Bayern [12 May 1998] ECR I-2691, [2000] CMLR 449, note by C Tamuschat. See also O'Leary in (1999) 24 European Law Review 68, for a discussion of this case.
9 For the position in English Law, see Upex, R, Benny, R and Hardy, SLabour Law (1st ednOUP Oxford 2004) 51–69; andGoogle ScholarUpex, RThe Law of Termination of Employment (7th ednJordans Bristol 2006) 7–35. But this is not always true. Thus Spanish law prefers the term ‘worker’ (‘trabajadores’) to that of ‘employee’ (‘salariado’): Ley del Estatuto de los Trabajadores, Real Decreto Legislativo 1/1995, of 24 Mar 1995, por el que se aprueba el Texto Fefundido de la Ley all Estatuto de los Trabajadores, Bulletin Official del Estado, 29 Mar 1995 and personal conversation with M Font, on 4 Nov 2003, Nijmegen. This is also true of Italian law, which prefers the term ‘lavatore’ to ‘salariato’ (see Art 2094 of the Italian Civil Code, available at <http://www.jus.unitn.it/cardozo/Obiter_Dictum/codciv.htm>), and—outside the EU—Brazilian law which prefers the term ‘empregado’ to ‘assalariado’ (Consolidacao das Leis do Trabalho—Decreto-Lei no 5.452/2943, available at <http:www.planalto.gov.br/ccivil_03/decretolei/De15452.htm>).Google Scholar
10 See P Coursier La notion de travailleur salarié en droit social communautaire (Dr Soc 2003) no 3, p 305; R Rebhahn ‘Les clauses générales dans le droit du travail européen’ in La clause générale dans le droit européen des contrats Symposium of 27–28 June 2003, Paris, Society of European Contract Law; P Rodière Droit social de l'Union européenne (LGDJ Paris 2002); B Reynes La notion de travailleur salarié en droit communautaire: une notion en devenir, in Mélanges dédiés au Président Michel Despax (Presse de l'Université des Sciences Sociales de Toulouse Toulouse 2002) 239; D Martin La libre circulation des personnes dans l'Union européenne (Bruylant Bruxelles 1995) no 17; G Desolre De la notion au concept communautaire de travailleur (Cah dr eur 1979) 38.
11 ECJ Case 6/64 Flaminio Costa v ENEL (15 July 1964) Rec 1141.
12 A Supiot, ME Casas, J de Munck, P Hanau, A Johansson, P Meadows, E Mingoine, R Salais, and P van der Heijden Au-delà de l'emploi—Transformations du travail et devenir du droit du travail en Europe, Rapport pour la Commission des Communautés européennes avec la collaboration de l'Université Carlos III de Madrid (known as Rapport Supiot or Rapport du Groupe de Madrid) (Flammarion Paris 1999). On the Rapport Supiot, see generally Ignacio Camo Victoria and Eduardo Rojo Torrecilla A propos du rapport Supiot: réflexions sur les changements dans le monde du travail et en droit du travail Les Cahiers de Droit 2002, vol 43, no 3; and J Lojkine A propos du rapport Supiot—Dépassement du marché du travail ou simple adaptation du droit du travail aux nouvelles stratégies des entreprises capitalistes Droit social 1999, nos 7–8, p 669 and the references cited.
13 ‘Employee’ is defined as ‘an individual who has entered into or works under…a contract of employment’. ‘Contract of employment’ means ‘a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing’.
14 In French law, see Pelissier, J, A Supiot and A Jeammaud Droit du travail (21st ednDalloz Paris 2002) no 131 et seq.Google Scholar
15 Note that Industrial Tribunals were renamed Employment Tribunals by the Employment Rights (Dispute Resolution) Act 1998.
16 [1968] 2 QB 497. For commentaries on this case, see C Drake ‘Wage Slave or Entrepreneur?’ (1968) 31 MLR 408, and Brown ‘The Test of Service’ [1969] JBL 177. The case is also noted by Clarke: see 31 MLR 450. Reference should also be made to Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173. For a note on the later case of O'Kelly v Trusthouse Forte see P Leighton (1984) 13 ILJ 62.
17 ibid 515. It should be noted that, at the time this case was decided, it was customary to use the terminology ‘master’, ‘servant’ and ‘contract of service’. This usage is now archaic and the terminology ‘employer’, ‘employee’ and ‘contract of employment’ are to be preferred. Debate amongst academics in England has tended to take place during general discussions on the employment status tests developed by the courts: D Clutterbuck ‘Employed or self employed?’ (2004) Taxation 547–9; Williams, A ‘A Critical Appraisal of the Criteria Determining Employee Status’ (2003) Business Law Review 239–47;Google ScholarHemming, J ‘A Question of Status’ (2003) New Law Journal 1213–14; A Williams ‘What’s in a Name: Defining Employee Status’ (2002) Legal Executive 23–5.Google Scholar
18 [1999] ICR 693. There is a vast wealth of information available on this issue, see generally: Vaines, P ‘Taxing Matters’ (1999) New Law Journal 1041;Google ScholarLeighton, P ‘Problems Continue For Zero-Hours Workers’ (2002) Industrial Law Journal 71; D Clutterbuck ‘Employed or Self employed?’ (2004) Taxation 547–9; ‘Employment relationship—Worker Not Obliged to Perform Services Personally’ (1999) Employment Lawyer 10; ‘Employment Status: Contract of Employment Must Require Employee to Provide Services Personally’ (1999) 2–3.CrossRefGoogle Scholar
19 ibid 699–700.
20 [2001] IRLR 7.
21 ibid 11. cf Staffordshire Sentinel Newspapers Ltd v Potter [2004] IRLR 752.
22 [1992] ICR 739, 744–5. The Court of Appeal upheld his decision that the taxpayer was not an employee: see [1994] ICR 218. See also Lee Ting Sang v Chung Chi-Keung [1990] ICR 409, 414, where the Privy Council uses similar language.
23 See (n 38).
24 This provision gives ‘workers’ the right not to suffer unauthorized deductions from their wages. It started life as s 1 of the Wages Act 1986.
25 This provision gives protection to ‘whistleblowers’, ie those who make what are called ‘qualifying disclosures’. In brief, a worker will be protected by this provision if he or she makes a disclosure in relation to one of the specified categories of subject-matter and uses one of the specified manners of procedure to make the disclosure. Interestingly, this particular group of statutory provisions has its own special definition of ‘worker’, to be found in s 43K(1). It widens the definition of ‘worker’ set out in ERA 1996, s 230(3).
26 This provision gives workers the right to be accompanied by a companion to a disciplinary or grievance hearing.
27 This Act entitles ‘workers’ to be paid the national minimum wage. The term ‘worker’ is defined in s 54(3) of that Act. The definition is the same as that in ERA 1996, s 230(3), given below.
28 These Regulations were introduced to implement Council Directive 93/104/EC (now Council Directive 2003/88/EC) concerning certain aspects of the organization of working time. Interestingly, the statutory provision which offers protection against ‘action short of dismissal’ in working time cases, ERA 1996 s 45A, extends to ‘workers’ whereas other provisions in this group (ERA 1996, ss 44–9) extend to employees only.
29 Implementing 97/81/EC concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC.
30 This provision defines a worker as someone who has entered into or works under ‘(a) a contract of employment; or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual…’
31 See s 54(3) of the National Minimum Wage Act 1998, s 13(1) of the Employment Relations Act 1999, reg 2(1) of the Working Time Regulations and reg 1(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
32 In ERA 1996 s 43K.
33 In cases involving jury service, health and safety cases, Sunday working cases, cases where an employee is a trustee of an occupational pension scheme, cases involving employee representatives, cases involving employees exercising the right to time off work for study or training, employees taking leave for domestic or family reasons, employees taking advantage of their right to tax credits under the Tax Credits Act 2000 and employees exercising their rights to flexible working.
34 In working time cases. A similar protection is offered to ‘workers’ who suffer a detriment because they exercised their statutory right to be accompanied at a disciplinary or grievance hearing: see Employment Relations Act 1999, s 12(1) and (2).
35 ERA 1996, ss 98B–105.
36 Pelissier, J, A Supiot, and A Jeammaud Droit du travail (21st ednDalloz Paris 2002) no 127.Google Scholar
37 ibid no 127.
38 Cass civ (6 July 1931) Bardou D P 1931.1.121, Pic note (M Pic, proponent of the theor adopted by the Cour de cassation, in preference to the test of economic dependence proposed b P Cuche).
39 Pelissier, J, A Supiot, and A Jeammaud Droit du travail (21st ednDalloz Paris 2002) no 12 and the case law cited.Google Scholar
40 Law of 11 Feb 1994 relating to initiative and individual undertaking (known as the ‘Madeli Act’) created a presumption (simple) whose effect is that some contracts are presumed not to b a contract of employment (Art L 120–3 of the French Labour Code).
41 Cass soc Société Générale v URSSAF de la Haute-Garonne (13 Nov 1996) JCP 199 E.II.911, note J Bathélémy, Dr soc (1996) 1067, note J-J Dupeyroux. See also Cass Soc (19 De 2000), Dr soc (2001) 227, A Jeammaud note.
42 §622 BGB. See also Manfred Lieb Arbeitsrecht (CF Müller Heidelberg 2003) §622 para 28
43 BVerfGE 82, 126.
44 Lieb (no 46) §622 para 83.
45 There is no executive worker, by the way: see Manfred Löwisch and Günter Spinte, Kommentar zum Kündigungsschutzgesetz (Verlagsgesellschaft Recht und Wirtschaft Heidelberg 2004) § 14 para 23.
46 Wolfdieter Küttner Personalbuch 2004 (Beck Verlag München 2004) § 14 para 17.
47 BAG Neue Zeitschrift für Arbeitsrecht 51 (2001).
48 ibid 1102 (2000).
49 BAG Betriebsberater 1876 (1999); BAG Neue Zeitschrift für Arbeitsrecht 595 (1998).
50 BAG Der Betrieb 1996 (1980).
51 ibid.
52 Küttner (n 50) 1132.
53 BAG NZA 1998, 364.
54 Thus, Council Directive 80/987/EEC of 20 Oct 1980 on the protection of employees in the event of the insolvency of the employer applies to the claims of ‘employees’ and leaves the definition of ‘employee’ to national law: Art 2(2). Council Directive 91/533/EEC, mentioned below, is expressed to apply to ‘every paid employee having a contract of employment relationship defined by the law in force in a Member State …’ Council Directive 2001/23/EC of 12 Mar 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights on the event of transfers of undertakings, businesses or parts of undertakings or businesses is expressed to apply to ‘employees’; the word ‘employee’ is defined as ‘any person who, in the Member State concerned, is protected as an employee under national employment law’: Art 2(1)(d). A similar position is taken by European Parliament and Council Directive 2002/14/EC of 11 Mar 2002 establishing a general framework for informing and consulting employees in the European Community: see Art 1(1) and 2(d). The transposing instruments in UK law also apply to employees.
55 This group of directives tend to be health and safety measures, which probably accounts for the fact that they apply to ‘workers’ as opposed to ‘employees’. Thus, Council Directive 89/391/EC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (the ‘1989 Directive’ or the ‘Heath and Safety Directive of 1989’) applies to ‘workers’. These are defined by Art 3 as ‘any person employed by an employer, including trainees and apprentices but excluding domestic servants’. Art 3 goes on to define ‘employer’ as ‘any natural or legal person who has an employment relationship with the worker…’ Following on from this Directive are Council Directive 92/85/EEC of 19 Oct 1992 (‘the Pregnant Workers Directive’) and Directive of the European Parliament and of the Council 2003/88/EC of 4 Nov 2003 concerning certain aspects of the organisation of working time, both of which refer back to the 1989 Directive. In addition, the Parental Leave Directive (96/34/EC of 3 June 1996) applies to ‘workers…who have an employment relationship…as defined by the law…in each Member State’: see clause 1(2) of the Annex; the Posted Workers Directive (96/71/EC of 16 Dec 1996) applies to ‘workers’, the definition being ‘that which applies in the law of the Member State to whose territory the worker is posted’: art 2(2); and the Part-time Workers Directive (98/23/EC of 7 Apr 1998) applies to ‘part-time workers who have an employment contract or employment relationship as defined by the law…in force in each Member State’: Art 2(1). The Fixed-Term Workers Directive (99/70/EC of 28 June 1999) uses a definition identical to that used by the previous directive.
56 See Directive 91/533/EEC of the Council, of 14 Oct 1991 on the employer' obligation to inform employees of the conditions applicable to the contract or employment relationship, OJEC no L 288 of 18 Oct 1991, 32 (Art 1.1). No specific domestic legislation was introduced to implement this Directive, but the predecessor of the Employment Rights Act 1996 (the Employment Protection (Consolidation) Act 1978) was amended by the Trade Union Reform and Employment Rights Act 1993 so as to bring it into conformity with the Directive. Those provisions as amended (ss 1–12) were then consolidated into the Employment Rights Act 1996 as ss 1–12.
57 SI 2002 no 2034.
58 Directive 1999/70/EC of the Council, of 28 June 1999, concerning the ETUC, UNICE and ECPE framework agreement on fixed-term work, OJEC no L 175 of 10 July 1999, 43.
59 And it would not appear that this adaptation is defective, insofar as the directive leaves the definition of the term in the hands of Member States.
60 Compare Art 8 of the Pregnant Workers Directive (which gives a right to a minimum period of maternity leave) with ERA 1996, s 72 (which implements that right into UK law). The latter provisions applies only to ‘employees’. So too with the Parental Leave Directive, which gives the right to parental leave to ‘workers’. The relevant provision of the ERA 1996—ss 76–80—and of the Maternity and Parental Leave Regulations 1999 (SI 1999/3312) apply to ‘employees’.
61 See the Part-time Workers (Prevention of Less favourable Treatment) Regulations 2000 (SI 2000/1551), reg 1(2), and the Working Time Regulations 1998 (as amended), reg 2(1).
62 Directive 96/34/EC of the Council of 3 June 1996 concerning the framework agreement on parental leave concluded by UNICE, ECPE and ETUC, OJEC no L 145 of 19 June 1996, 4 (clause 1.2 of framework partnership). The 1997 directive on part-time work adopts a similar wording: thus, it applies ‘to part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State’ (see Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 concerning the protection of consumers in the area of distance contracts, OJEC no L 144 of 4 June 1997 p 19 (Art 2.1 of the Agreement annexed to the directive)).
63 Posted Workers Directive Art 2.2.
64 Directive 91/533/EEC of the Council of 14 Oct 1991, on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship, OJEC no L 288 of 18 Oct 1991, 32 (Art 1.1).
65 Council Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of under-takings or businesses. This is a consolidation of the 1977 Directive (77/187/EEC) and the amending Directive (98/50/EC).
66 Regulation (EEC) no 14087/71 of the Council, of 14 June 1971, relative to the application of social security schemes to employees and their family who move within the Community, OJEC no L 149 of 5 July 1971, 2, Celex no 3197IR1408 9 (Art 1. a) (i)).
67 ECJ case C-221/95 EJM de Jaeck v Staatssecretaris van Financiën et Institut national d'assurances sociales pour travailleurs indépendants v C Hervein et Hervillier SA (30 Jan 1997) 2 decisions, Rec p I-461, Europe 1997, comm 111, Travail et Protection Sociale 1997, comm 196, obs Ph Coursier.
68 ibid point 16.
69 ibid point 28.
70 ECJ C-85/96 Maria Martinez Sala v Freistaat Bayern (12 May 1998) Rec p I-2691 (point 36), CMLR 2000, 449, note by C Tomuschat.
71 Which is no longer the case in French law: see (n 4).
72 One of the Directives to derive from the main 1989 Directive is Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health of pregnant workers and workers who have recently given birth or are breastfeeding. The Directive appears to adopt the definition of worker given in the main directive. As with other implementing UK legislation mentioned earlier, the legislation applies to employees: see Employment Rights Act 1996, ss 71–75, as substituted by the Employment Relations Act 1999, s 7 and Sch 4, Pt I and amended by the Employment Act 2002, s 17(1) and (2).
73 Formerly Art 118A. See also Art 137.
74 Directive 93/104/EC of the Council of 23 Nov 1993, concerning certain aspects of the organization of working time, OJEC no L 307 of 13 Dec 1993, p 18 (Art 1.3). This Directive has now been consolidated into Directive 2003/88/EC of the European Parliament and of the Council, of 4 Nov 2003. The article in the consolidated directive is 1.3.
75 See below.
76 In fact, when the above 1993 Directive was being voted on, the British government claimed that a unanimous vote was necessary because the provision did not qualify as a measure subject to majority voting. They subsequently took proceedings in the ECJ, arguing that, as the directive was a social measure, it required unanimity rather than the qualified majority voting procedure used by the Council. They lost: see United Kingdom v Council of the European Union [1997] ICR 443, Art 137 of the EC Treaty (ex-art 118) states: ‘the Community shall support and complement the activities of the Member States in the following fields: •improvement, in particular, of the working environment to protect the workers’ health and safety; •working conditions; •the information and consultation of workers; (…)’. It goes further: However, ‘the Council shall act unanimously on a proposal from the Commission, after consulting the European Parliament and the Economic and Social Committee and the Committee of the Regions in the following fields: (…) (c) social security and social protection of workers; (…).’
77 ECJ case C66/95 R. v Secretary of State for Social Security, ex parte Eunice Sutton (22 April 1997) Rec I-2163.
78 Previously Art 48 EEC Treaty.
79 See generally Horspool, M et al. European Union Law (3rd ednButterworths London 2003) no 16.7 et seq.Google Scholar
80 ECJ Case 75/63 MKH Unger, wife R. Hoekstra v Bestuur der Bedriijfsvereniging voor Detailhandel en Ambachten à Utrecht (19 Mar 1964) Rec 347 (point 51), Dr soc 1964, p 658 G Lyon-Caen note. Ms Hoekstra was a resident of the Netherlands where she worked for some time. Whilst visiting her family in Germany, she had to undergo medical care for which she demanded reimbursement from the Dutch social security authorities. Her right to reimbursement depended on the question whether she was a ‘worker or an assimilated worker’ in the sense of regulation no 3 concerning social security of migrant workers, implementing the EEC Treaty.
81 ibid (point 51); G Lyon-Caen La jurisprudence sociale de la Cour de justice des Communautés en 1964 (Revue trimestrielle de droit européen) 84 (85); A Supiot (under the direction of) Au-delà de l'emploi: transformations du travail et devenir du droit du travail en Europe (Flammarion Paris 1999).
82 ECJ Case 53/81 DM Levin v Secrétaire d'Etat à la justice (23 Mar 1982) Rec 1035. The Court later stated that the motives that can influence a national of the Community to look for employment in another Member State are not relevant: ECJ Case 139/85 R H Kempf v Secrétaire d'Etat à la Justice (3 June 1986) Rec 1741.
83 For recent examples, see ECJP case C-107/94 H Asscher v Staatssecretaris von Financiën (27 June 1996) Rec I-3089 (point 25), citing ECJ Case 66/85 Deborah Lawrie Blum v Land Baden-Württemberg (3 July 1986) Rec 2121 (point 17).
84 ECJ Case 66/85 Deborah Lawrie Blum v Land Baden-Württemberg (3 July 1986) Rec 2121 (point 17).
85 ECJ Case 53/81 D M Levin v Secrétaire d'Etat à la Justice (23 Mar 1982) Rec 1035.
86 ECJ Case 66/85 Deborah Lawrie Blum v Land Baden-Württemberg (3 July 1986) Rec 2121 (point 18). French case law separates the definition of a contract of employment when the work, instead of being the main subject of a contract, constitutes a simple means of training for educational purposes. Thus, there is no contract of employment between an employer and a trainee working in the course of an educational degree: Cass soc, 14 Nov 2000, RJS 2/01, no 157. The English law position on this is best highlighted in Wallace v CA Roofing Services Ltd [1996] IRLR 435, where it was held that despite modern legislation having, for some purposes, assimilated apprenticeships to contracts of employment, the contract of apprenticeship remained a distinct entity in the realms of the common law. Its first purpose was training; the execution of work for the employer was merely secondary, and was therefore not regarded as a contract of employment. The possibility of transforming such a contract for training into a contract of employment was appreciated, but would require precise and clear wording.
87 Previously 59 and 60. Art 50 states that services are to be considered as 'services’ within the Treaty where they are normally provided for remuneration.
88 ECJ Case 196/87 Udo Steymann v Staatssecretaris van Justitie (5 Oct 1988) Rec 6159. On the other hand, in the sense of Art 39 of the EC Treaty, the person exercising an activity within the framework of his rehabilitation in a therapeutic centre for drug addicts is not engaged in an economic activity but only an activity of a social nature: ECJ Case 344/87 I Bettray v Staatssecretaris van Justitie (31 May 1989) Rec 1989 1621. Regarding French law, a worker of the Emmaus Community who ‘submitted himself to the community's rules of life which defines a host environment comprising the participation in a work designed for the integration of workers’ is exclusive of any subordination link: Cass soc 9 May 2001, Communauté d'Emmaus de la Pointe Rouge v José Maria Miralles Barons, Dr soc 2001, 798, J Savatier note, D 2002, 1705, E Alfandari note. Similarly, the agreement concluded between a company and the French National Employment Agency (ANPE) (Association Nationale Pour l'Emploi) to assess a job applicant at a place of work for a period that can extend up to two weeks does not characterize a work contract (Cass soc 18 July 2001, M Duquenne v M. Rapnouil, Dr soc 2001, 1115, obs Y Rousseau). In the United Kingdom, the tendency of the courts and tribunals in all the cases which have come before them in recent years has been effectively to remove from church ministers and priests the temporal jurisdiction of the courts, by holding, irrespective of religious denomination, that they are not employed under a contract of employment. The preferred approach is that of the Court of Appeal in President of the Methodist Conference v Parfitt [1984] ICR 176. The Court's approach in Parfitt's case has been followed in cases involving other religions: see, for example, Santokh Singh v Guru Nanak Gurdwara [1990] ICR 309, and Diocese of Southwark v Coker [1999] ICR 140. For a detailed analysis of the status of priests in the Church of England, see Brodin ‘The Employment Status of Ministers of Religion’ (1996) 25 ILJ 211. On the other hand, employees of the church would have the ordinary protection of Employment Law, for example, the organist or those employed in a shop run by the church, subject, of course, to the proviso that they fulfilled the requirements of the multiple test. This can be inferred through the ecclesiastical cases of Davies v Presbyterian Church of Wales [1986] IRLR 184. A similar position in the UK can also be seen with regard to volunteers. Employee status has been found despite volunteers not being engaged in an economic activity, and only receiving flat rate ‘expense’ payments: Migrant Advisory Service v Chaudri: EAT/1400/97 (28 July 1998).
