Employment Law

Front 1

Employee

Back 1

Contact of service

Front 2

Self employed

Back 2

Independent contractor

# contact for service

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Tests to determine employment

Back 3

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

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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

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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

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# 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)

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- independent contractor

- no mutuality of obligation

- no duty to accept it

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Home worker or outworkers

Back 8

- 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)

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- 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

Back 10

Front 11

Contents of contract of employment

Back 11

- 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)

Back 12

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:

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- 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

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# 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

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- 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

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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

Back 18

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Unfair dismissal ( under employment act 1996)

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- 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

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Aft 6 April 2012- 2 yrs continuously employed

Bft 6april 1 yr

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Type of dismissal

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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

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- 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

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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

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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

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# 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

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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

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# 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

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Reinstatement ( treated as not dismissed)

Re-engagement ( comparable employment)

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Award unfair dismissal

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# 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

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The employer has ceased or intends 2 cease

- business

- place

- particular kind

Where d employee was employed

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Collective redundancy situation

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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

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30 days bfor 1st redundancy- 20 to 99 proposed redundancies

90 days in advance where 100 or +

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Procedure- redundancy

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- 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

Back 34

Same as basic award for unfair dismissal