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36 Cards in this Set

  • Front
  • Back

"Employee"

- Definition in the ERA s230(1) and (2)




- Includes apprentices:


Daley v Allied Suppliers [1983] - state determined whole relationship so it was a contract of training not employment


Fleet v Matheson [2006] - training was provided by the state but employment rules were governed by the employer so the apprentice was an employee.





Sham terms

Snook [1967] - sham "means acts done or documents executed by the parties to the 'sham' which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create.




Autoclenz v Belcher [2011] - must ask "what was the true agreement between the parties"? To find this you need to a) take account of relative bargaining power of parties; b) look at terms of any written agreement and; c) other circumstances of the case e.g. conduct/other evidence.

Control Test

Ready Mixed Concrete - a person would be an employee if "he agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master".




It also defined control as including "the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done".




Stevenson, Jordan & Harrison v MacDonald & Evans [1952] - if there's no control, integration into the organisation is sufficient, where the ultimate authority lies with an employer.




Troutbeck v White & Todd [2013] - people working on a remote Scottish farm as labourers on behalf of absentee owner were employees as the instructions were specific and there was a clear hierarchy. They were expected to work and were paid for it. There was also ultimate control of the employer.

Risk Test

Where does the financial risk lie?




Market Investigations v Minister of Social Security [1969] - factors to look at with this test: own equipment; degree of financial risk; responsibility for investment and management; opportunity for profit.




Lane v Shire Roofing [1995] - for the duration of the contract he couldn't work for anyone else so was an employee.




Stringfellows v Quashie - lap dancer was not an employee as there was no mutuality of obligations and the financial risk was on her. Stringfellows was not under any obligation to pay her anything - she paid them to be able to dance at the club and she was paid by the customers.

Mutuality of Obligations Test

O'Kelly v Trust House Forte [1984] - no obligation for company to provide work and no obligation for individuals to say yes so were not employees.




No mutuality clauses can be overridden by the Autoclenz approach.

Statutory Continuity

A period of continuous employment is required for certain rights e.g. ERA s108(1) - two year qualifying period for unfair dismissal.




1. Continuous employment begins on the day the employee starts work - s211(1)(a) ERA. Any week during the whole or part of the contract counts - s212(1).


Cornwall CC v Prater [2006] - there was no break in continuity with successive individual teaching assignments.


Welton v Deluxe Retail [2013] - there was continuity when he was working at the Sheffield store that closed down so accepted an offer to start working at the Blackpool store a week later.




2. A week which does not count in computing the length of a period of continuous employment breaks continuity of employment - s212(4).





Statutory Continuity cont.

3. Certain weeks in which there is no contract of employment do not break continuity and do count - s212(3). This rule applies where the employee is:


a. incapable of work in consequence of sickness or injury (for not more than 26 weeks - s212(4).


b. absent from work on account of temporary cessation:


Fitzgerald v Hall Russell [1970] - where gaps are short in comparison of period of employment as a whole it indicates cessation.


Ford v Warwickshire County Council [1982] - lecturer for 8 years but had a 9-month academic year contract each year. Court said cessation is a question of fact and degree in each case and applied Fitzgerald - entitled to protection.


c. Absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose


Curr v Marks & Spencer [2003] - career break permitted up to 4 years to bring up a child and then return. CA said yes this was an employer scheme but this did not mean there was continuity as there was no actual agreement that there would be continuity.



4. Employment during any period is presumed to be continuous unless contrary is shown - s210(5).



5. Any agreement between the parties to waive continuity would be void - s203.

Employee Shareholder

Employee can choose to lose some rights (unfair dismissal; right to statutory redundancy pay; right to request flexible working time; certain statutory rights to request time off to train) in exchange for shares.




Parliament has laid down six conditions that must be met for someone to be an employee shareholder:


1. Individual and company must agree for employee to be an ES.


2. Employer must give the employee fully paid up shares in the company which are worth at least £2,000.


3. Shares must be a gift.


4. Employer must give the individual a written statement of the particulars of the status of ES.


5. Individual must obtain advice from a relevant independent adviser on the terms and effect of the written statement and the company must pay for this advice.


6. Individual cannot accept ES job until 7 days after the advice has been received.




Employees who refuse to become ES's are protected from suffering any detriment or being dismissed for their decision to refuse - ERA s47G and s104G.

Worker

Definition is in s230(3) ERA.



Autoclenz v Belcher [2011] applies equally to worker concept.



Byrne Bros v Baird [2002] - must be some kind of mutuality of obligations



McFarlane v Glasgow City Council [2001] - if the substitution clause is not likely to be used and is only there to deny a status then it may not reflect the true agreement.



Express and Echo v Tanton [1999] - if you have a strict substitution clause where unfettered power of substitution then you cannot be an employee or worker as you are not undertaking to perform work if they can provide a substitute.

Worker continued

Hospital Medical Group v Westwood [2012] - supplying exclusive services to medical practice was a worker even though he was only paid when patients required services. He was sufficiently integrated into the group so was a worker.




Clyde & Co v Bates van Winkelhof - fixed term equity partner of a firm of solicitors was a "worker".

Cases where individuals found not to be workers

Community Dental Centres v Sultan-Darmon [2010] – dentist was under a contract to provide dental services under the NHS but EAT found there was “an absence of an obligation to perform services personally” therefore he was self-employed.



Halawi v World Duty Free [2013] – not a “worker” if no economic dependency.



Mingley v Pennock [2004] – taxi drivers who can take own fares are not workers.

Non-standard working

Four categories:


- zero hours contracts


- fixed term work


- agency work


- part time work

Zero hours contracts

Government has outlawed exclusive zero hours contracts - s27(a) ERA.



It also has been suggested that ZHC might be unlawful via Autoclenz.



Borrer v Cardinal Security [2013] - despite line manager having contractual discretion to unilaterally alter working hours they could not do that so as to drastically reduce his working hours as there was a normal expectation in the contract that he would have a 48 hour week.



Pulse Healthcare v Carewatch Care Services [2012] - contract stated it was a ZHC but the three care workers had been working for years under it and had always had regular shifts of 24 or 36 hours a week so Autoclenz was applied and it was a contract of specific hours of employment.

Fixed term work - equal treatment principle: equal treatment in respect of all employment conditions.

Impact v Minister of Agriculture and Food [2008] - equal treatment includes all aspects of pay including occupational pensions.



There has to be an actual comparable, permanent employee for you to compare yourself to. Employee can rely on equal treatment as it has direct effect.



Employer can mount a defence of objective treatment if they can justify the difference in contract terms between a permanent and a fixed term employee.


Santana [2011] - CoJ said if duties were comparable then any difference of treatment could only be objectively justified by precise and specific factors meeting a genuine need. The reasons must be appropriate for the objective pursued and necessary.

Protection against abuse of successive fixed term contracts

The UK decided that fixed term contracts cannot be renewed for more than 4 years - EU Directive was vague.



Impact - contracts renewed for 8 years was deemed to be an abuse as it was "unreasonably long".



Duncombe v Secretary of State for Children, Schools and Families [2011] - contract had been over a 9 year period but was not successive fixed term contracts so no abuse.



Agency work

They are in a triangular relationship with themselves, the agency and the "end user".




Is it possible to imply a contract between the worker and the end user?




Motorola v Davidson [2001] - EAT implied the control test because he used M's tools, wore their uniform, booked their holidays with them and there was a procedure for him to raise his grievances with them and they terminated him so the had control and a contractual relationship was implied.




Cable & Wireless v Muscat [2006] - he worked in their office for over two years, they provided him with equipment, paid his mobile phone bill and he had an employee number so there was an implied contract of employment.




James v LB of Greenwich - confined Muscat and Motorola to their facts. Applied a strict literal interpretation of the contract between the agency and employee and said that length of time does not make an agency worker an employee. Council could not insist on the agency supplying Ms James so insufficient mutuality and both had contracts with the agency so no necessity to imply additional contract.

Agency work continues

Smith v Carillion [2014] - agency worker was neither an employee nor a worker of the end user.



Agency Work Regulations 2010 gave more protection:



There is a right to equal treatment in respect of the same basic employment conditions as a directly employed worker/employee doing the same job. These conditions cover: pay, the duration of working time, night work, rest periods, rest breaks and annual leave.



Possibility of a hypothetical comparison as it refers to “would” have had. So could compare to workers at a different site or different establishment if there are no directly hired employees at the same establishment.



Qualifying period for equal treatment is 12 weeks.

Part time workers

All rights are contained in the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

Contract Terms - Construction of the employment contract

Much is determined by Parliament such as minimum wage, sick pay, minimum requirements regarding paid annual leave.




The common law is also important as it is used to fill gaps and evolve duties.

Express terms

Contract of employment can be oral or in writing - s230 ERA no formalities so general contract rules apply.



Stransky v Bristol Rugby Ltd [2002] - a conversation about S being suitable to take on the role of coach and him accepting and starting to make arrangements was enough evidence that a contract of employment had been entered into and they were in breach of that contract so S was entitled to damages when they said he would not be taken on.



Dresdner Kleinwort v Attrill [2013] - announcement of bonus for all employees amounted to a binding contractual promise as it was clear and precise and he had set it up to inform employees they would get a specific amount as a bonus.



Judge v Crown Leisure [2005] - employee claimed director had promised that he would be put on a higher salary within two years but the Tribunal said it was at most a statement of intention not a clear agreement.



Autoclenz - any express terms need to be understood in the context of the agreements - written agreement must be the "true agreement" and this covers all employment contracts.

Collective agreements

British Leyland v McQuilken [1978] - procedural clause from a collective agreement could not be incorporated so breach of it was not a breach of contract.



Kaur v MG Rover Group [2005] - collective agreement containing a reference to an aspiration that there should be no compulsory redundancies. Court found it was insufficiently precise and it was essentially aspirational.



Malone v British Airways [2010] - collective agreement set out the number of cabin crew to employed on different types of aircraft and BA sought to unilaterally reduce that. CA said account had to be taken of whether or not the parties would have actually agreed to maintain the collective agreement level knowing what the consequences would be. Found to have somewhat uncertain meaning and it had to be interpreted as to whether the parties intended it to be individually enforceable.

Works rules

Secretary of State for Employment v ASLEF [1972] – train drivers decided to “work to rule” but they were in breach of a general duty of cooperation as the works rules were guidance but should not be used in such a way so as to disrupt the business of the employer.



Keeley v Fosroc International [2006] – statement in staff handbook set out the level of redundancy payments but the employer argued it was not contractual. However the court pointed to the clear language of the handbook which said it was an entitlement.



Sagar v Ridehalgh [1931] – reasonable deductions for careless work were sufficiently well known and established that they amounted to custom and practice and were capable of incorporation into the employment contract.



Bond v CAV Ltd [1983]– collective agreements will now be stronger than custom and practice.



Park Cakes v Shumba[2013] – employer had a long standing practice of making additional redundancy payments. It had taken place over a sufficiently long period that it had built up an expectation that the employees would receive this additional redundancy payment.


Statutory written statement of particulars of employment

S1 ERA places a duty on the employer to give a written statement of particulars of the contract within two months of employment.



System Floors v Daniel [1982] – can be that a clause in the statutory statement provides the court with persuasive but not conclusive evidence of what has been agreed between the parties. In the absence of other evidence or if there is other evidence which might be contradictory.



Terms derived from statute

e.g. s66 Equality Actwhich incorporates a sex equality clause into every employment contract.



Barber v RJB Mining [1999] – employee required under contract to work on average more than 48 hours a week which exceeded the maximum working hours permitted by statute and he had not signed an individual opt out so the statutory maximum applied as aterm of the contract.



Also unlawful for terms to be in contract which would amount to a contracting out of a statutory entitlement e.g. you can’t contract out of health and safety.

Terms implied at common law

Mears v Safecar Security [1982] – statement didn’t state whether he was entitled to sickpay and CA said the Tribunal can insert missing terms into a contract which are a necessary incident of the employment relationship.



Jones v Associated Tunnelling [1981] - it was reasonable in the employment relationship on the facts for the parties to have agreed to a term allowing some mobility within a reasonable travelling distance.



Johnstone v Bloomsbury Health Authority [1992] - you have to interpret express terms with implied terms and the implied terms include protection of employees health and safety so they couldn't agree to almost unlimited working hours as the effect of that was detrimental on health and safety of employees.

Duties of employees: Skill and care

Lister v Romford Ice and Cold Storage [1957] – employer’s insurers sued Lister after an accident in a company vehicle which injured another employee. He had breached his duty of care as an employee by not exercising skill and care.

Obedience, co-operation, trust and confidence

Basic principle is that the employee must obey the lawful and reasonable instructions of the employers in the scope of the contract.



Sim v Rotherham MBC[1987] – if an employee refuses to carry out one part of their duties as part of industrial action that would be a violation of the duty to co-operate.



Cresswell - with the introduction of new technology the requirement to be trained to use it would normally fall within the scope of the contract provided it is necessary for their job.

Obedience, co-operation, trust and confidence continued

Bull [2007] - it was acceptable for firefighters sent out with wholly inadequate safety equipment to refuse to fulfil the instruction in those circumstances as employers were in breach of their obligation to protect the health and safety of their employees.



Morrish v Henlys [1973] - employee refused to falsify records concerning amount of petrol used in car leasing business but the employer argued it was custom in the business. Found that it was an unlawful order so it was reasonable for the employee to refuse.



Barber v RJB Mining [1999] – employee instructed to work more than the statutory limit of 48 hours and had not signed an opt out so it amounted to a violation as it was an unlawful order.


Fidelity

Employee should complete their work in a manner which is loyal to the employer, shouldn't damage the employers reputation, make undisclosed profits by virtue of their position or work for a competitor during the course of their employment.



Hivac v Park Royal Scientific Instruments [1946] – employees went to work for a rival company in their spare time and as it was a deliberate action which was destructive to the employer’s business and so was a breach of contract.


Further fiduciary duty owed by very senior employees not to disclose certain information

Neary v Dean of Westminster [1999] – senior organist at Westminster Abbey unbeknownst to the Abbey was recording his performances and selling them for profit. Because it was not agreed they found a breach of a specific fiduciary duty which arose from his seniority within the organisation.



East England Schools CIC v Palmer [2013] – traditional approach still applies in the social media age.

Duties of employers: Skill and care

Brown v Corus [2004]– work involved dangers that the employer knew about therefore requiring employees to carry it out was endangering them.



Walker – employer should, when issuing instructions, take account of any reasonably foreseeable risk to the employee’s mental health.

Skill and care continued

Sutherland v Hatton[2002] – duty applies to work related stress if the employer failed to take steps that he could reasonably be expected to take to address the issues.



Legal test is whether the employer in their actions has contributed to the stress and it was reasonably foreseeable that it would cause stress – must be a causal link.



Waters v Commissioner of Police of the Metropolis [2000] – police officer reported sexual assault by another officer (outside of the employment relationship). She was being bullied and harassed at work and the employer had not done anything so it was a breach of the duty of care.



Scally v Southern Health and Social Services Board [1992] – employee was not given the correct info about his pension so he lost out on potential benefits. It was the employer’s duty to make sure the employee had this information as the economic wellbeing of the employee is important (maybe less so with senior employees – Eyett).

Skill and care - references

If employer gives a reference with highly detrimental opinions that are not objective that could be a breach and can arise in a post-employment context.



Spring v Guardian Assurance [1994] – employers are free to give honest, frank and robust views in a reference but they should take reasonable care about the factual content and expressing opinions. Duty of care is to the recipient because of the importance of the reference.



McKie v Swindon College [2011] – reference with statements about investigations into Mr McKie was not supported by sufficient evidence and flouted standards of justice as the allegations had not been put to him at the time. They had a continuing obligation to him and had breached it.



A new employer is entitled to request evidence based information from a previous employer if they have concerns about safeguarding.



Camurat v Thurrock BC [2014] – distinguished from McKie as it was a legitimate safeguarding issue.


Trust and confidence

Malik v BCCI [1997]– bank collapsed because of fraud that M was not involved in. He sought damages from the bank and their creditors on the basis that by perpetuating the fraud they had destroyed the mutual trust and confidence of the employees. HOL said have to take into account the behaviour and its impact on the employee – it must be reasonable foreseeable that it will have a detrimental impact.



Horkulak v Cantor Fitzgerald International [2003] – employer must not act “arbitrarily, capriciously or irrationally”.

Variation of terms

Jones v Associated Tunnelling [1981] – normally any variation must be agreed to by both the parties but can sometimes be implied where both parties would have agreed to that term.



Has been used to protect employees as the employer cannot vary the terms where there would not be any agreement.



Only situation where employee may be in a weaker situation is if there is an express term allowing for variation - Bateman v ASDA Stores [2010].


Post-employment constraints

There could be a term in the contract preventing working for a competitor after leaving the company.



Penwell Publishing v Ornstein [2007] – express term not to compete for two years after leaving but he took his personal contact list. Held he wasn’t liable as it was merely something he acquired during working there, not anything confidential about the employer or a trade secret.



Some cases such as Roger Bullivant v Ellis [1987] have gone the other way. If it is a genuine trade secret and there is an express term it will be a breach. But a term will not normally be implied if the employer forgets to put one in.