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22 Cards in this Set
- Front
- Back
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What happens when there is a dispute between the employer and employee... |
It goes through an employment tribunal and the stage of legal action takes place and then eventually, it may end up in court of appeal or supreme court to decide |
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A self employed |
Is an independent contracter who are contracted to deliver their services. They can engage other workers to help them or substitute their work for other people. The full time control will put you in the category of self employed |
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An Employee |
Gives themselves to you as an employer in a period of time. They have their work controlled by the employer. There is no substitutability, they cant substitue themselves from someone else to do the work The less control, the more your work is controlles and defined by your employer and your generally an employee. |
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Employment Rights |
As an employee you have different rights to other status. There is a long list of right you have as an employee for instance, rest breaks, the right to request flexible working, etc. These are the things the employer has to give on gurantee to you as an employee if they are in their employment. Some of them are major, some of them are minor. |
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Employment rights for 'self employed, independent contractor' |
They dont have any rights, because they are not employees. Of course they have rights through contract, but dont have any employment rights because they are not employees |
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Employment rights for 'Workers' |
These people fall in the middle and therefore have some rights but not total employment rights. |
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How do we know whether someone is a worker, employee or a self employed contracter? |
What happens is, tribunals and courtd have to make the judgements based on certain criteria and the criteria they use are: 1) The control of work 2) The mutuality of obligation So, if we were making an assessment about different sorts of workers. The assessment you're making is who controls the work and to what extent is there an obligation on both sides, a mutuality of obligation. |
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The control of work |
Is about the tribunal or whoever would sit down and say ok, what work is done, where is it done, how is it done, and importantly WHO does the work. So they would ask these series of questions about the nature of work that is being done. Who is doing the job is important because if you are an employee, you cannot substitue someone for your work If you are self employed, you can bring someone else to do your work And if you are a work you cannot substitute someone to do you work |
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Worker |
Is someone who has to do the work themselves personally, they cannot bring someone else in, so that gives them automatically certain rights. They have less control over work and that brings with certain rights. The more control you have individually, the more likely you to be a worker |
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Mutuality of obligation |
Is the obligation of the employer to provide work and the obligation for the person that is working for them. So, if someone is an employee, they tend to work, they go into work and provide work with work. They have to be provided with work and they have to be paid if there is no work |
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Employees: there are 2 types of contract to consider |
1) The contract of employment 2) The psychological contract Both is really important for delivering performance but are very different in terms of the form |
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The Contract of Employment |
- is legally binding - may be oral or in writing (better to have written contracts) most employment contracts will be written down - consists of two aspects which are express terms and implied terms |
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Express Terms |
Are easy to understand. Express terms must be written down and they are generally about pay and benefits, working hours, holiday entitlement, etc. The express terms normally cover these and must be provided to the employee in writing. These express terms are covered specifically for you.
Conduct and behaviour is important, particularly gross misconduct. Conduct and behaviour need to be specfic and gross misconduct needs to be clearly specfic in the contract of employment
So that forms the express terms, in addition to that it might be all sorts of supplementary documents which also express terms of a contract will. Such as, staff handbook covering procedures, social media use policy, dress and appearance code, etc. These are written for everyone in the organisatio. |
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What happens if there is a dispute about the nature of the contract? |
You end up with the two seperate processes depending on which side it is 1) The disciplinary procedure driven by the EMPLOYER 2) The grievance procedure driven by the EMPLOYEE Both of which are arguing quite often that the contract has been broken by the other party |
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Disciplinary procedure |
If the employer believes the employee has breached the terms of the contract and breached the express terms, then it starts a disciplinary procedure |
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Grievance procedure |
If on the other hand, the EMPLOYEE thinks the employer has breached the contract in some way, it starts a grievance procedure |
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Repudiatory breach |
If a contract is broken, theres something called a repudiatory breach which means effectively that you as an individual are not obliged to fulfil your side. If someone breaks their side of thr contract, you're not obligated to comply with your side of the contract because of that breach, the breach repudiates the contract of low |
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Implied terms are not written into the individuals contract but they are implied in the nature of the work that is done, the delivery of the contract and are implied by a number of things: |
- they are implied first of all by the statue (laws) set by the parliment - implied by collective agreements (e.g. agreement with trade unions recognised by the employer in the way of working or terms) - implied by the need to make the contract work properly (e.g. arrive on time, being polite to customers) - implied by customs and practice arrangements at the workplace So if an organisation has agreed to do things in a certain way for a number of years, it becomes custom practice |
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The Psychological Contract (second contract) |
The psychological contract is very different. Its about the expectations an employee has of the employer and the expectations the employer has of the employee. - Not legally binding - Not normally written down and given to employees - Broad and not clearly defined - It is related to performance For instances, an employer may be expecting certain things from the employee such as, high level of performance or growing into the job. From the employee point of view, maybe you're expecting promotion, recognition, reward, feeling of satisfaction from the work you do. None of this is written down, its part of the psychological contract that people have in entering work and being employed. |
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The psychological contract Organisational Citizenship Behaviour can include: |
- Organisational loyalty - Altruism and interpersonal helping - Self development - Organisational compliance - Social as well as functional participation |
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So how does a prospective employee get to understand the psychological contract? |
1) Individual perception influenced by: a) past experiences of work in general b) specific knowledge of the organisation through being a customer 2) Organisational clues Recuitment information- a lot of stuff to the recruitment information is giving clues about what the organisatoon is like and what the deal is there Selection processes- will tell you a lot, the induction process, when you've been selected tells a huge amount Together these two things of what you bring and what the organisation gives out helps to form that psychological contract |
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What happens when one party believes the other has violated the psychological contract? |
It could be a violation where there is inconsistency between what employees were expecting and what was actually given. The employee could withdraw effort, become less cooperative, etc. The employer on the other hand, when they proceed that the employee is not doing the deal they thought they were getting from them, its violated the contract in some way. They may take action using performance, they may use informal methods to manage, they may use disciplinary procedures. So, there are different ways in which the two sides can act when they believe the other one has violated the contract in some way. |
