ABSTRACT
A purely contractual approach to the employment relationship is unsatisfactory because it suggests that there are two equal parties agreeing the terms of a contract. The contractual approach was adopted by courts in the 1870s, but it is still, in reality, an unequal relationship. The employee needed to have knowledge of employer’s identity and to have given consent to the transfer. Without such knowledge and consent it would not be possible to say that the employee had freely entered into a contractual relationship with the employer. One important factor the courts have examined in order to decide whether a contract of service exists or not is that of mutuality of obligation between employer and individual. The reluctance of the appeal courts to interfere unless there is point of law or a perverse decision may lead to inconsistencies between different employment tribunals. Continuity of employment is important because the right to claim unfair dismissal depends on having two years’ continuous employment.
