13: The Contract Of Employment And Its Termination Flashcards
(30 cards)
13.1: What is employment law
Governs the workplace and covers different work relationships : full time, part time, agency workers, contractors, remote workers etc
13.1: what are key distinctions in these type of workers
Employees: have more legal protections
Contractors include :
- workers ( have some legal protections )
- self-employed ( almost no legal protection)
Only employees can have an official employment contract
13.1: Why does employment status matter
Employees can claim:
- Protection from unfair dismissal
- redundancy pay
Workers: get basic rights ( minimum pay, holiday pay)
Self-employed rely on what their contracts say
13.1: how employment contracts formed?
Written or verbal include expressed or implied terms
13.1: What does the key legal source include?
Common law, statutes and EU directives
- Disputes generally begin in employment tribunal and can progress to higher courts
13.2: What are issues in employment law?
- Is the person an employee?
- What are the contract terms
- Was the dismissal fair and legally compliant
13.3: What are the 4 categories of employment status?
- Employee ( full legal rights)
- Employee Shareholder ( gives up some rights for company shares)
- Worker ( limited rights )
- Independent contractors ( few rights mostly governed by contract terms)
- Contracts are divided into: Contract of service ( employee) and contract for services ( contractor)
- Zero- hours contracts offer flexibility for employers, minimal rights for workers
13.3.1: Employee
No strict statutory definition of employee, but courts apply multiple tests:
1. Control test: Does the employer direct the work?
2. Integration test: Is the worker embedded in the company?
3. Economic reality test: Is the person in business for themselves?
4. Mutuality of obligation test: Is there a duty to provide/accept work?
Cases:
Ready Mixed Concrete: Drivers were self-employed despite company uniform
13.3.2: What is a worker?
A worker sits between employee and self-employed. They do not have:
- Unfair dismissal protection
- Redundancy rights
- Flexible working rights
But they do get:
- Minimum wage
- Paid holidays
- Protection from discrimination
Eg: agency, some casual/home workers
Cases: Bates van Winkelhof - LLP member was a worker due to personal service and integration
13.3.3: What is independent self-employed contractor
These individuals:
- Run their own businesses
- Use their own tools
- Have no employment rights unless written into their contracts
Courts look past labels to determine actual employment status
Eg: Autoclenz v Belcher - workers labelled as ‘self-employed’ were actually employees
13.4 What are express and implied terms?
Express terms: agreed upon between employer and employee. May be written, spoken, incorporated from another document.
- include: wages, work location, holiday entitlement
Implied terms: not explicitly agreed upon but are included automatically . Two main sources
- common law: implied because they are necessary to make the contract workable
- statute: Terms inserted by legal provisions
13.4: what are included in common law implied terms?
- Employee’s duty to obey lawful instructions: employees must follow reasonable and lawful orders
- Employees duty of reasonable care and skill: employees must meet the standards expected of someone in their role or profession
- Employers duty to provide work: generally not required unless the employee needs work to earn commission, develop skill or maintain reputation
- Employer’s duty to provide support: The employer should provide adequate staff and resources to let the employee perform effectively
- Duty of fidelity: employees must not harm their employer’s interests or compete with them while employed
- Mutual duty of trust and confidence: both employer and employee must not act in ways that would damage the working relationship. Including public humiliation, unjustified medical checks
Eg: Courtaulds v Andrew: an a player must not act in ways that damage trust without good reason.
13.4: What are statutory implied terms?
Laws automatically insert certain terms into all employment contracts:
- National Minimum Wage: employers must pay at least this
- Working Time Regulations 1998: These regulate maximum working hours, rest breaks and paid leave
13.6: Explain statutory notice periods
When ending an employment relationship, proper notice must usually be given unless certain exceptions apply,
Two exceptions where no notice is required:
1. Gross misconduct: the employee has committed a serious breach allowing for instant termination
2. Serious breach by Employer: The employee may resign immediately and claim constructive dismissal if the employer’s conduct makes staying unreasonable
13.6.1: what are the guidelines an employer has to follow when giving a notice
Employers must follow the statutory notice table
- The law sets only a minimum- longer periods can be contractually agreed, but shorter ones can’t override the legal minimum
13.6.2:What are the guidelines of an employee giving a notice?
If employed for at least one month, the employee must give at least one week’s notice
If employed for less than one month, the employee must give reasonable notice
Employees can agree to longer notice periods by contract, but not shorter
Payment in lieu of notice ( PILON) may be allowed if the contract provides for it or if both parties agree
13.7: What are the 3 types of dismissal claims
- Wrongful dismissal
- Unfair dismissal
- Constructive dismissal
13.7.1: Explain wrongful dismissal
When an employer breaches the employment contract, usually by failing to provide proper notice or not following agreed procedures
- This is a breach of contract claim, so the employee can bring it to either a civil court or an employment tribunal
13.7.2: Explain unfair dismissal
Focuses on whether the reason for dismissal and whether the employer acted reasonably
To qualify the claimant must be an employee with 2 years continuous service - unless the dismissal is for an automatic unfair reason eg: whistleblowing
13.7.2: What are the 3 routes for proving dismissal ?
- Employer ends the contract
- a fixed-term contract expires
3.the employee resigns due to constructive dismissal
Tribunals ask: was there a dismissal, what was the reason, was the employers conduct reasonable
13.7.2.1: What are potentially fair reasons for dismissal ?
- Capability: poor performance, lack of qualifications, I’ll health. The employer should investigate, provide support, issue warnings before dismissal
- Conduct: misconduct ( latenesses), gross misconduct ( violence) - issued without warning
- Redundancy: job role is no longer needed
- Statutory bar: legal restriction prevent continued employment ( driver losing his license )
- Some other substantial reason: including third party pressure or breakdown in relationships
13.7.2.2: What is automatically reasons for dismissal?
Some reasons are always unfair, regardless of process or conduct. These include:
- Pregnancy and family-related leave
- Health and safety concerns
- Trade union membership or activities
- Asking for legal rights ( eg: minimum wage)
- Whistleblowing ( protected disclosures)
- Transfers of undertakings (TUPE) without valid justification
No 2 year qualifying period is needed, and tribunals are more likely to rule in favour of the employee
13.7.2.3: What is the band of reasonable responses
To assess fairness, tribunals apply the ‘band of reasonable responses’ test: Would a reasonable employer have acted similarly?
1. Procedure: was a proper process followed? Polkey v Dayton
2. Consistency: we’re similar cases treated alike?
3. Appropriate sanction: Was dismissal too harsh?
Employers are encouraged to follow the ACAS Code of Practice
13.7.2.4: who can bring an unfair dismissal?
- An employee of 2 years continuous service
- The claim must be made within 3 months of dismissal & go through ACAS Early Conciliation
- Workers, self-employed & certain categories are excluded
