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34 Cards in this Set
- Front
- Back
Employee |
Contact of service |
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Self employed |
Independent contractor # contact for service |
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Tests to determine employment |
1 the control test ( employees r subject to control by employer) 2 the integration test ( work z an integral part i.e parcel) 3 the economic reality test or multiple test ( takes all surrounding factors into account) |
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Relevant factor |
Control Provision of own equipment Hires helpers Financial risk Responsibility for investment n mgmt Opportunity of profit Method of payment Work hours Mutuality of obligation |
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Example case of test 1 control 2 integration 3 economic reality |
1 walker v crystal palace football club (control test inappropriate due to insufficient knowledge of employer) 2 Whittaker v minister of pension (employee, entitled claim compensation for injury) 3 market investigation ltd v minister of social security (control n not provided own tool so employee) |
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Temporary or casual workers |
# work offer when require # offer work to him in preference to other # accept work when offered |
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O'Kelly v trust house forte PLC ( wine waiter) |
- independent contractor - no mutuality of obligation - no duty to accept it |
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Home worker or outworkers |
- paid by d no. of pieces they produce - will supply their own equipment - their position is ambiguous - consider themselves as self-employed bt law doesn't always take this view. |
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Nethermere ltd v taverna n Gardiner ( trousers - garments) |
- 2 women, sewed trousers - rarely refused work - submitted time sheets n paid same rate as workers in d factory -machines provided by company Held: employees - continuous period of time - mutuality of obligation |
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Distinction btw employee n self employed |
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Contents of contract of employment |
- Express terms - term implied bt the court - term implied by statute |
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Express terms ( terms agreed by parties themselves, may b written or oral) |
The employment Rights Act 1996 _ requires an employer to provide employee a written statement within 2 months of commencement of employment |
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Express term must include details of: |
- how 2 complain abt a disciplinary or dismissal decision - any changes, notified by written statement within a month |
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Terms implies by d court |
# duties of employee - duty to obey lawful n reasonable orders - duty of mutual cooperation ( employer to give n employee to obey order) - duty to exercise reasonable care n skill ( consider unless gross negligence, in case airline pilots may warrant dismissal) - duty 2 given honest n faithful service - duty 2 render personal service ( not delegate performance of their work to som1 unless employer's express or implied permission)
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Duties of employer |
- duty 2 pay reasonable remuneration- duty 2 indemnity ( secure against losses or damages) d employees- duty 2 provide a safe system of work- duty to give reasonable notice of termination - duty of mutual cooperation - provision of work - provision of reference |
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Terms implied by statute |
1. ERA 1996 ( gives right 2 employees, not 2 b unfairly dismissed, right 2 redundant payment, min period of notice 2 terminate d contract) 2. Working time regulations 1998 (Limit hrs of work, average of 48 a week, 4 weeks paid leave n 1 day off / week) 3. Employment act 2002 ( flexible working arrangement for parents- children under 17 or disabled under 18 _ paternity n adoption leave) 4. Equal pay act 1970 ( pay equal, holiday n sick leave) 5. National minimum wage act 1998 ( min level of pay) |
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Wrongful n unfair dismissal Minimum notice period |
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Wrongful dismissal |
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Unfair dismissal ( under employment act 1996) |
- continuously employed-2yrs - serve grievance notice on employer - claim 2 emplmt tribunal within 3 mths of dismissal - must prove- dismissed by employee - must prove reason for dismissal by employer - tribunal must satisfied by employer act ( reasonable act) - found unfair - reinstatement, re engagement or compensation |
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Employment contract |
Aft 6 April 2012- 2 yrs continuously employed Bft 6april 1 yr |
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Type of dismissal |
1. Contract terminated by employer with/without notice 2. Fixed term contract expired n not renewed 3. Constructive dismissal |
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Constructive dismissal |
- covered by ERA 1996 -employee terminate contract with/without notice by d reason of employer conduct. |
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Statutory fair reasons for dismissal |
1 capabilities/ qualification 2 conduct of employee 3 redundancy 4 continued employment would contravene statue ( fail to conform to a regulation.) 5 other substantial reason |
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Reason for dismissal |
Employee can rely on given reason for dismissal where he knew of it at d date of dismissal |
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Reasonableness of employer |
# whether d reason given was sufficiently serious 2 justify dismissal # whether employer adopted reasonable procedures to n manner of dismissal |
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Cases |
1 incapability- fair warning n opportunity to mendn show he can do 2 misconduct- investigate fully n fairly , provide opportunity to defence or explain 3 redundancy- warns n consult any employees affected |
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Inadmissible reason for dismissal |
# victimisation of health n safety complaints # pregnancy or exercise of maternity leave right # trade Union membership/ non membership activities # assertion of statutory right e.g paternity leave right # unfair selection for redundancy |
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Remedies for unfair dismissal |
Reinstatement ( treated as not dismissed) Re-engagement ( comparable employment) |
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Award unfair dismissal |
# Basic award - 18-21 yrs_ 1/2 weeks pay/ yr of service - 22-40 yes_ 1week's pay/yr of service - 41+_ 1.5 weeks pay/yr of service - max_ 20 yes service @ 464/week
# compensation award - discretionary award up to 76574 based on employee's losses n expenses. - reduced if complainant contributed to his dismissal.
# Additional award ( given where) - employer ignores an order of reinstatement or reengagement - the dismissal is unfair bcoz race, sex or disability discrimination - reason cited for dismissal is an inadmissible 1. |
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The employee is Redundant if |
The employer has ceased or intends 2 cease - business - place - particular kind Where d employee was employed |
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Collective redundancy situation |
Plan 2 make 20 or more employees redundant in 1 place of work within 90 days -must notify dept for business, innovative & skill - consult wid workplace representative (Trade union or employees representative or directly each Ind.) |
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Consultation @ formative stage |
30 days bfor 1st redundancy- 20 to 99 proposed redundancies 90 days in advance where 100 or + |
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Procedure- redundancy |
- continuously employed- 2 yrs - claim 2 employment tribunal- 6 mths of dismissal - employees must prove - dismissed - employer must prove- employee not redundant - if found redundant, pay as per basic award |
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Redundancy pay |
Same as basic award for unfair dismissal |