Representation:

1. in determining whether a person is self-employed or is a worker for the purposes of the minimum wage legislation, the test to be applied is to ask whether the "dominant purpose" of the contractual relationship is the provision of personal services. If so, the person is likely to be a worker and therefore covered by the minimum wage legislation and entitled to the National Minimum Wage.
   
2. the fact that there is no mutuality of obligation when the work is not being performed is of little significance in determining the status of the relationship when the person is actually at work. It is simply one of the factors to take into account in deciding whether a person is a worker, an employee or is 'self-employed'.

editor's note.
The case was remitted to a new employment tribunal to decide whether on the facts Mrs James was a worker in the light of guidance on the law provided by the EAT. In February 2008 the Cardiff employment tribunal ruled that she was indeed "to be regarded as a worker and also as a home worker within the provisions of" the National Minimum Wage Act 1998 (see James v Redcats (Brands) Ltd Cardiff Employment Tribunal on 1st February 2008).

For general relevant notes see Minimum Wage/what workers are covered? and/or Employee/employee or self-employed? and/or Employee/employee or worker? and/or Homeworkers