Employment Law

Front 1

People covered by Employment Law

Back 1

1. Employees s 230 (1,2) ERA 1996
2. Workers s230(3) ERA 1996
3. Self- employed

Front 2

Ferguson V John Dawson & Partners (Vontractors ) ltd (1976)

Back 2

"Self- employed labour -only-subcontractor" contractual wording was a "device" that could be used to the advantage of both parties, but did not affect the reality of the relationship between the parties.

Hint 2

Distinguishing Employees from Self employed

Front 3

Massey V Crown Life Insurance Co (1978)

Back 3

A written contract was an acurate representation of the agreement and there was no evidence to contradict it.

Hint 3

Distinguishing Employees from Self employed

Front 4

tests to determine person's employment status

Back 4

1. the control test
2. the integration organisation test
3. the multiple/economic test
4. the mutuality of obligation
5. the personal service

Hint 4

5 test

Front 5

Dacas V Brook Street bureau (2004)

Back 5

Implied contract of employment existed between the claimant and the organisations for which she was providing her services.

Hint 5

The control test

Front 6

Cassidy V Minister of health

Back 6

Hospital authority was vicariously liable for the negligence of full time medical staff because they were part of the organisation of the hospital.

Hint 6

The integration/organisation test

Front 7

Ready mixed concrete (South East) Ltd vMinister of Pensions (1968)

Back 7

The power to delegate the work to others was a decisive factor for the decision of the court- self employed

Hint 7

The multiple/"economic reality" test

Front 8

Montgomery V Johnson underwood Ltd 2001

Back 8

Mutual obligations and degree of control by the employer over the worker constituted the "irreducible minimum" required to constitute a contract of service.

Hint 8

Mutuality of obligation

Front 9

MacFarlane and Another V Glasgow CIty Council (2001)

Back 9

The permitted degree of delegation may be the key factor in determining whether employer- employee relationship exists.

Hint 9

Personal service

Front 10

Rights and duties of employed and self employed

Back 10

1. Statutory rights
2. Protection under Health and safety at work act 1974
3. Deductions from income
4. Freedom of contract
5. Negotiation of contractual terms
6. Vicarious liability

Hint 10

6 rights and duties

Front 11

Express terms of the employemnt contract

Back 11

1. Intelectual property rights
2.Garden leave provisions
3. Restrictive Covenants
4. A confidentiality agreement
5. Conditional training

Hint 11

5 terms

Front 12

Terms implied by statute

Back 12

1. Rights relating to working time WTR 1998
2. Rights relating to pay (NMWA 1998, s66 EA 2010)
3. The right to a minimum period of notice.(s86 ERA 1996).

Hint 12

3 terms

Front 13

Terms implied by common law

Back 13

1. Business efficacy- Reigate V Union Manufacturing Co. Ltd (1918)
2. Officious bystander- Shirlaw V Southern Foundries (1926)

Hint 13

2 terms

Front 14

Implied Duties of Employer

Back 14

1. Trust and Confidence- Morroww V Safeway Stores Plc (2002)
2. Pay wages
3. Take reasonable care for an employee's health and safety- Wilsons & Clyde Coal Co v English (1938)
4. Provide work
5. Provide reference with due care and skill: Spring v Guardian Assurance plc (1994)

Hint 14

5 duties

Front 15

Implied duties of employee

Back 15

1. Duty to obey lawful orders: Pepper v Webb (1969)
2. Duty to provide personal service with due care: Superflux v Plaisted (1958)
3. Fidelity: not working for competitor- Hivac v Park Royal Scientific Instruments [1946]
not disclosing confidential information- Faccenda Chicken
Ltd v Fowler [1986], not accepting bribes or secret commissions- Boston Deep Sea Fishing & Ice Company v Ansell (1888)

Hint 15

3+3 duties

Front 16

The s1 statement must contain

Back 16

1. Names
2. Date
3. Continuous employment ss210-219
4. pay
5. Hours of work
6. Holidays
7. Notice
8. Job title
9. Duration
10. Place of work
11.Collective agreements
12. Details of work outside the UK
13. Terms relating to sick pay, pensions, notice periods, disciplinary and grievance procedures.

Hint 16

13 terms

Front 17

Discrimination

Back 17

1. A person commits a form of prohibited conduct.
2. on the grounds of a protected characteristic.
3. in specified circumstances

Hint 17

3

Front 18

Protected Characteristics

Back 18

1. Age
2. Sex
4. Sexual orienation
5. Marriage
6. Pregnancy
7. Religion
8. Disability
9. Race

Hint 18

9

Front 19

Prohibited conduct

Back 19

1. Direct discrimination
2. Indirect discrimination
3. Harassment
4. Victimization
5. Discrimination arising from a disability
6. Duty to make reasonable adjustments
7. Pregnancy and maternity discrimination at work

Hint 19

7

Front 20

Prohibited Conduct
Direct discrimination

Back 20

1) Direct discrimination:
A. dress code- Smith v Safeway plc [1996]
B. swimming tickets- James v
Eastleigh Borough Council [1990]
C. denial of flexible work- Coleman v Attridge Law and Another [2006]
D. inter-generational fairness- Seldon v Clarkson Wright and Jakes (a Partnership) [2012]

Hint 20

4

Front 21

Prohibited Conduct
Indirect discrimination

Back 21

1. Williams-Drabble v Pathway Care Solutions Ltd and Another
[2005] – changing the rota of a practising Christian employee;
2. British Airways plc v Starmer [2005] – refusing to allow a full-time,
female airline pilot with childcare responsibilities to reduce her hours.
3. McFarlane v Relate Avon Ltd [2010], requiring employees to comply with an employer’s equal
opportunities policy was a legitimate aim

Hint 21

3

Front 22

Prohibited Conduct
Harassment

Back 22

1.violating the claimant’s dignity; or
2. creating an intimidating, hostile, degrading, humiliating or offensive
environment for the claimant.
3.Richmond Pharmacology v Dhaliwal [2009] (married off in india)

Hint 22

3

Front 23

Prohibited Conduct
Victimisation

Back 23

Victimisation occurs when a person is treated less favourably because he has
enforced, or attempted to enforce, his own or someone else’s legal right to be
protected from discrimination (s27)

Chief Constable of West Yorkshire v Khan [2001]- reasonable not to provide reference

Hint 23

2

Front 24

Prohibited Conduct
Discrimination arising from disability

Back 24

1. A treats B unfavourably because of something arising in consequence of
B’s disability;
2. A cannot show that the treatment is a proportionate means of achieving
a legitimate aim.

Hint 24

2

Front 25

Prohibited Conduct
Duty to make reasonable adjustments

Back 25

1. Avoid any disadvantage caused to B by a provision, criterion or
practice of A’s;
2. Avoid any substantial disadvantage caused to B by a physical feature;
3. Provide an auxiliary aid to overcome a substantial disadvantage
experienced by B.

4. Archibald v Fife Council [2004]- disable person treated more favourably than others

5. Cordell v Foreign and Commonwealth Office [2011]- reasonable to withdraw an offer which would have costes additionally 300k

Hint 25

5

Front 26

Prohibited Conduct
Pregnancy and maternity discrimination at work

Back 26

A treats her less favourably
because of a pregnancy or because of illness suffered as a result of it.

Hint 26

1

Front 27

Exceptions

Back 27

1. possession of a particular protected characteristic is an occupational
requirement;

2. being of a particular sex, marital status or sexual orientation is necessary
for employment for the purposes of an organised religion;

3. workers with longer periods of service are given enhanced benefits;

4. younger workers are paid lower wages, provided that the requirements relating to the national minimum wage are met;

5. older workers receive higher redundancy payments.

6. Reinhard Prigge and Others v Deutsche Lufthansa AG [2011]- it is appropriate to have a compulsory retirement age for airline pilots in order to ensure public safety.

Hint 27

6

Front 28

Enforcement and remedies

Back 28

For sex race and disability

1. Declaration
2. Recommendation
3. Damages

Hint 28

3

Front 29

Contract of employment ends

Back 29

1. Operation of Law (death or winding up)
2. Frustration (reasons beyond the control of either the employer or the employee)
3. Agreement (both must give notice)
4. Resignation
5. Dismissal

Hint 29

5

Front 30

Dismissal

Back 30

1.wrongful dismissal: dismissal without due notice (a common law
breach of contract);
2. unfair dismissal: dismissal, with or without due notice, but without a fair reason (statutory);
3. wrongful and unfair dismissal;
4. neither wrongful nor unfair dismissal.

Hint 30

4

Front 31

Dismissal can occur in three ways

Back 31

1. Termination of the contract with or without notice- Futty v Brekkes Ltd [1974] was not unequivocal. Willoughby v CF Capital plc [2011]- clear unambigous notice couldnt be retracted.
2. Not extending the fixed term contract
3. Constructive dismissal

Front 32

Constructive dismissal

Back 32

Constructive dismissal occurs when the employee resigns in circumstances where the employer’s conduct effectively forces him to do so.

British Aircraft Corporation v Austin [1978]- it was
reasonable for an employee to resign after the employer did not respond to her request for eye protection that would fit over her spectacles.

Hint 32

2

Front 33

Summary dismissal

Back 33

occurs where the employer terminates the contract of the employee and asks the employee to leave immediately.

Hint 33

1

Front 34

Wrongful Dismissal

Back 34

Is a common law action for breach of contract when:

- the employee is dismissed without notice (summary dismissal) or with
insufficient notice;

- the employee has not received payment in lieu of notice;

- the employee has not repudiated the contract of employment.

Hint 34

3

Front 35

Repudiation

Back 35

If the employee has repudiated, the employer is
entitled to dismiss him summarily, so there is no wrongful dismissal.

Pepper v Webb [1969]- “I couldn’t
care less about your bloody greenhouse or your sodding garden."

Other examples of repudiatory conduct by an employee are dishonesty, assault and disobedience.

Hint 35

3

Front 36

Bringing a wrongful dismissal claim

Back 36

Claim in ET must be brought within 3 months. For claims in county court or high court it has to be brought within 6 years.

Hint 36

1

Front 37

Wrongful dismisal claims can be heard in 3 courts

Back 37

ET- damages up to £25k. “fast-track” scheme by which High Court Enforcement Officers assist successful claimants to recover the compensation awarded to them.

County court- Requires a court fee, cost can be ordered and the damages can be enforced.

High court- award of damages at least £25k

Hint 37

3

Front 38

Remedies for wrongful dismissal

Back 38

Damages include as many of the following as they apply:

1. arrears of wages;

2. net wages or salary that the employee would have been paid during his notice period;

3. the monetary value of contractual benefits that the employee would have received during his notice period;

4. net pay in lieu of holiday that would have been accrued until the date when the employee would have left if he had received notice.

Johnson v Unisys Ltd [2001]- The employee is not entitled to compensation for psychiatric injury arising from the manner of his dismissal.

Hint 38

5

Front 39

Unfair Dismissal

Back 39

1. dismissal with or without
notice for a reason that is unlawful.

The statutory framework is contained in Part X ERA 1996, and ETs also take
account of the ACAS Code of Practice 1 (2004) (CP1).
s92 ERA 1996 provides that a dismissed employee has the right to be given a written statement of the reason for his dismissal.

Hint 39

2

Front 40

Preliminary requirements for unfair dismissal

Back 40

The employee must be eligible to claim u.dismissal.

Has to be dismissed.

Futty v Brekkes Ltd [1974]- if you dont like the job f..- was not a dismissal.

Employer needs to show:

• potentially fair reason for dismissal;

• the employer acted with procedural and substantive fairness.

Hint 40

5

Front 41

Employees excluded from claiming unfair dismissal

Back 41

1. Certain employees of the Crown

2. Employees based abroad

3. Share fishermen

4. New Testament Church of God v Stewart [2007], the Court of Appeal held that the claimant minister was an employee.

Hint 41

4

Front 42

Period of employment to claim unfair dismissal

Back 42

1. 1 y. before 5/4/2012

2. 2y. after 6/4/2012

3. Cornwall County Council v Prater [2006]- continuous employment on a shortterm engagements governed by one contract of employment.

4. Continuity is not broken illness or injury of up to 26 weeks: s212(3)(a) ERA 1996;
• laying-off or short-time working due to lack of work: s212(3)(b);
• an arrangement between the employer and employee: s212(3)(c) – this
definition excludes “career breaks” to look after children (Curr v Marks
& Spencer plc [2003]); continuity is broken in such cases.

Hint 42

3

Front 43

Continuity is not broken

Back 43

1. Illnes or injury of up to 26 weeks: s212(3)(a) ERA 1996;

2. laying-off or short-time working due to lack of work: s212(3)(b);

3. an arrangement between the employer and employee: s212(3)(c) – this definition excludes “career breaks” to look after children (Curr v Marks & Spencer plc [2003]); continuity is broken in such cases.

Hint 43

3

Front 44

Automatically unfair reasons for dismissal

Back 44

No need to have one year’s
qualifying service in order to qualify for unfair dismissal compensation.

1. a matter covered by EA 2010;

2. leave for family reasons: s99 ERA 1996;

3. assertion of a statutory right: s104;

4. the identity of the employer has changed (reg 7 Transfer of
Undertakings (Protection of Employment) Regulations 2006),
unless the dismissal is for an economic, technical or organisational reason;

5. “whistle-blowing” (Part IVA ERA 1996): s103A;

6. serving on a jury, unless the employer would be likely be likely to suffer substantial injury because of the employee’s absence: s98B.

Hint 44

6

Front 45

Automatically fair reasons for dismissal

Back 45

1. the employee took part in unofficial industrial action;

2. the protection of national security.

Hint 45

2

Front 46

Potentially fair reasons for dismissal

Back 46

1. lack of the capability or qualifications required to do
his job;

2. The conduct was unsatisfactory;

3. the employee was redundant;

4. the employee could not continue to work in the position he held without illegality;

5. there was some other substantial reason to dismiss the employee.

Hint 46

5

Front 47

Capability or qualifications

Back 47

Taylor v Alidair Ltd [1978]- one incompetence justified the dismissal.

McAdie v Royal Bank of Scotland [2007]- fairy dismissed if impossible to return to work.

Tayside Regional Council v McIntosh [1982]- Dismissal due to loss of, or failure to attain, a relevant qualification, such as a
driving licence, may be fair.

Hint 47

3

Front 48

Conduct

Back 48

Singh v London Country Bus Service Ltd [1976]- relative misconduct outside work- fair reason.

Bradshaw v Rugby Portland Cement Company [1972]- misconduct outside work, irrelevant to the job- unfair reason

Boychuk v H J Symons
(Holdings) Ltd [1977]- Inappropriate dress with lesbian badges was the reason for the dismissal

Hint 48

3

Front 49

Redundancy

Back 49

occurs when the employer’s business has ceased to trade;

1. The employer has closed the employee’s workplace;

2. The employer has a reduced need for people to do work of the
particular kind that the employee did;

3. The employer has a reduced need for people to do work of the
particular kind that the employee did at the employee’s workplace.

4. High Table v Horst [1998]- place of employment was a question of fact of which the contract was not the sole determinant.

5. North Riding Garages v Butterwick [1967]- an employee was fairly dismissed for
incompetence (capability and qualifications), rather than redundancy, when his
duties changed from vehicle repairs to administration.

6. Vaux & Associated Breweries Ltd v Ward [1968]- 57-year-old waitress was not redundant
when she was dismissed for being unable and/or unwilling to dress as a bunny
girl, because the job was essentially the same as before

Hint 49

3+3

Front 50

Statutory restriction-

Back 50

Appleyard v F M Smith (Hull) Ltd [1972]- unfair dismissal of the driver who lost licence as the employer could have transferred him to a non-mobile job

Enfield Technical Services v Payne
[2008]- a document stating that
an employee was self-employed was not sufficient to make the continued employment of the claimant illegal

Hint 50

2

Front 51

Some other substantial reason

Back 51

1. incompatibility and hostility between employees, as in Treganowan v
Robert Knee & Company Ltd [1975];

2. dismissal and re-engagement on different contractual terms:
Martland v Cooperative Insurance Society [2008].

Hint 51

2

Front 52

Procedural fairness

Back 52

1. establishing the facts of the case;

2. giving the employee a written statement of the problem;

3. inviting the employee to a meeting to discuss the problem;

4. permitting the employee to be accompanied at the meeting;

5. deciding on appropriate action, such as a written warning or
dismissal;

6. providing an opportunity for the employee to appeal;

7. permitting the employee to be accompanied at the appeal hearing;

8. giving the employee a written record of the outcome of the appeal;

9. acting promptly and consistently throughout the whole procedure.

If the employer does not comply with CP1 the compensation might be increased by 25%

Hint 52

9

Front 53

Employer must investigate the alleged misconduct thoroughly

Back 53

British Home Stores v Burchell [1978], it was held that the employer must believe on reasonable grounds that the employee is guilty, and must carry
out as much investigation as is reasonable to confirm this.

Hint 53

1

Front 54

Employer doesnt need to behave in strict procedural fairness

Back 54

Polkey v A E Dayton Services Ltd [1987], the House of Lords held that an employer need not behave with strict procedural fairness if he could prove
that doing so would have made no difference to the decision to dismiss the
employee.

Hint 54

1

Front 55

Bringing an unfair dismissal claim

Back 55

Claim to be presented within 3 months from dismissal. ET3 to be returned to the ET within 28 days.

Unfair dismissal can only be heard in ET.

ET can also hear the following matters:
discrimination in the workplace;
1.the failure to give a s1 statement;
2.unlawful deductions from wages;
3. working time;
4. wrongful dismissal; and
5. the minimum wage.

Hint 55

6

Front 56

Remedies for unfair dismissal

Back 56

1.Re-engagement is re-employment in a different post, while preserving continuity of employment.

2. Reinstatement is re-employment in the same post, providing continuity of
employment.

3. Compensation consists of:
• a basic award – calculated in accordance with a formula involving age, length of service and pay, subject to a statutory maximum of £12,900;
• a compensatory award – compensates for the actual loss suffered up to the statutory maximum of £72,300 – following the House of Lords decision in Dunnachie v Kingston-upon-Hull City Council [2004], damages for unfair dismissal may not include compensation for injury to feelings.

Hint 56

3