Chapter 12 - Employment Law Flashcards
(142 cards)
1
Q
A
2
Q
What is the difference between an employee and a self-employed person in terms of contracts?
A
An employee will have a ‘contract of service,’ while a self-employed person will have a ‘contract for services.’
3
Q
Why is employee status important?
A
Employee status determines the rights and responsibilities of both the employee and the employer. It is crucial in cases such as tax or tort law.
4
Q
What are the three key factors that are essential for determining employee status?
A
1) Can the individual delegate or subcontract? 2) Control: Does the employer dictate how the job is done? 3) Mutuality of obligations: Is there a reciprocal obligation between the employer and employee?
5
Q
What does the ability to delegate or subcontract indicate about employment status?
A
An employee has a duty of personal service and cannot delegate tasks, whereas the ability to delegate often indicates self-employment.
6
Q
What does ‘control’ mean in the context of employee status?
A
‘Control’ refers to the employer’s ability to dictate how and when the individual performs their job, indicating an employment relationship.
7
Q
What does ‘mutuality of obligations’ indicate about employee status?
A
If there is an obligation on the employer to provide work and on the employee to perform it, this indicates an employment relationship.
8
Q
How do contractual provisions help determine employee status?
A
The terms of the contract, such as sick pay and holiday pay, can provide evidence of an employment relationship but are not conclusive.
9
Q
What does the provision of tools and equipment indicate about employment status?
A
A self-employed person is more likely to provide their own tools and equipment, while employees rely on the employer.
10
Q
What role does wearing a uniform play in determining employee status?
A
An employee is more likely to wear a uniform provided by the employer, indicating integration into the organization.
11
Q
How does payment of tax and National Insurance (NI) indicate employee status?
A
Deduction of tax and NI directly from wages indicates an employment relationship, whereas self-employed individuals manage their own tax and NI.
12
Q
What does financial risk indicate about employee status?
A
Individuals who take financial risks and share profits are more likely to be considered self-employed.
13
Q
How does the number of employments affect employee status?
A
A person working for more than one organization is more likely to be considered self-employed.
14
Q
How does the length of service impact employee status?
A
The longer the relationship between the worker and the employer, the more likely it is to indicate an employment relationship.
15
Q
What are the implications of wrongful dismissal for employees and self-employed individuals?
A
Employees can claim wrongful dismissal, whereas self-employed individuals cannot as they lack employment contracts.
16
Q
What employment protections are available to employees compared to self-employed individuals?
A
Employees are entitled to minimum notice periods, statutory redundancy pay, unfair dismissal protection, and health and safety protections. Self-employed individuals are subject to statutory protections for workers, including working time and health and safety obligations.
17
Q
What are the insolvency implications for employees and self-employed individuals?
A
Employees have preferential creditor rights for outstanding salary and redundancy payments, whereas self-employed individuals do not have preferential rights.
18
Q
What are the implied terms in employment contracts versus contracts for services?
A
Employment contracts include implied rights and duties under common law and statute, such as mutual trust and confidence. Contracts for services typically do not include these implied rights and duties.
19
Q
Who is liable for tortious acts under employment versus self-employment?
A
Employers are vicariously liable for the tortious acts of employees committed in the course of employment. For self-employed individuals, liability is limited unless strict liability applies.
20
Q
How does taxation differ between employees and self-employed individuals?
A
Employees are taxed via PAYE from their salary, while self-employed individuals are taxed under self-assessment and are directly responsible for their tax payments.
21
Q
How does VAT differ between employees and self-employed individuals?
A
Employees are not subject to VAT, whereas self-employed individuals may need to register for and charge VAT.
22
Q
What are the social security contributions for employees versus self-employed individuals?
A
Employers pay secondary Class 1 contributions, and employees pay primary Class 1 contributions. Self-employed individuals pay Class 2 and Class 4 contributions.
23
Q
What is the ‘worker’ category in UK employment law?
A
Workers fall between employees and independent contractors. They have some protections like the right to minimum wage and paid leave, but not full employment protections, such as protection from unfair dismissal.
24
Q
What is an example of a worker in UK employment law?
A
Uber drivers, as per the case Uber BV v Aslam and others (2021), are considered workers under UK employment law.
25
What is an employment contract?
An employment contract is an agreement between the employer and employee that creates legal relations. It may be written or oral and typically includes terms such as pay, hours, and place of work.
26
What happens when changes are made to the terms of an employment contract?
Any changes to the terms of an employment contract are considered amendments to the existing contract. These changes typically require the consent of both parties unless new legislation requires it or an express term in the contract allows for variation.
27
What are express terms that allow for variation in an employment contract?
Express terms, such as a 'mobility clause,' may allow an employer to require an employee to work at a different location. Employers must exercise these powers reasonably, respecting terms of trust and fairness.
28
What did the case United Bank Ltd v Akhtar 1989 establish about implied terms?
The case established that employers must exercise rights under express provisions reasonably, including providing reasonable notice. In this case, the employer’s unreasonable actions led to a successful constructive dismissal claim.
29
What is the principal written statement required for employees?
The principal statement includes: names of employer and employee, job title, pay details, working hours, holiday entitlement, place of work, probation conditions, and other mandatory terms such as sick pay and notice periods.
30
What details must be included in the wider written statement?
The wider statement, to be provided within 2 months, includes: pensions, non-compulsory training rights, and details of grievance or disciplinary procedures.
31
What recourse does an employee have if a written statement is not provided?
An employee may raise a grievance or apply to the employment tribunal to declare the terms. The tribunal may offer additional compensation if the absence of a statement has caused issues.
32
What is the duty of faithful service (fidelity)?
Employees must not work for a competitor or act in ways that conflict with their employer's interests. For example, accepting personal commissions from suppliers without employer consent is a breach of fidelity.
33
What does the duty to obey lawful and reasonable orders entail?
Employees must obey their employer's reasonable instructions unless the orders: 1) Require unlawful acts, 2) Expose the employee to personal danger (not inherent in their job), or 3) Demand actions outside their contract.
34
What is the duty not to misuse confidential information?
Employees must not misuse confidential information obtained during employment. This duty often continues after employment ends. Intellectual property created during employment usually belongs to the employer.
35
What does the duty to exercise reasonable care and skill mean?
Employees must demonstrate reasonable competence, care, and skill in their work, consistent with the skills and experience they claim to have.
36
What is the duty of personal service?
Employment contracts are personal, meaning employees cannot delegate their duties to others without the employer's express or implied consent.
37
What does the duty of trust and confidence involve?
This mutual obligation requires respect and consideration from both employer and employee. Employees must not make unjustifiable complaints or false accusations about their employer.
38
What is the employer's duty to pay remuneration?
The employer must pay the rate fixed by the contract or, in the absence of work, pay nothing during a lay-off, subject to any express provisions.
39
What does the employer's duty to indemnify employees entail?
The employer must indemnify employees against expenses and losses incurred during the course of employment.
40
What are the three-fold obligations under the employer's duty to ensure health and safety?
1) Provide safe plant and appliances, 2) Provide a safe system of work, 3) Ensure reasonably competent fellow employees.
41
What is the employer's duty to provide work?
The employer is generally not liable for failing to provide work as long as wages are paid. Liability may arise if work is tied to commissions.
42
What is the duty to provide accurate references?
While not obligated to provide references, employers must exercise reasonable care to ensure accuracy and fairness in any provided references. Employers cannot include undisclosed information harmful to the employee.
43
What is the employer's duty regarding confidential information?
The employer must not disclose confidential employee information to third parties without the employee's consent.
44
What does the duty to maintain mutual trust and confidence require?
Employers must treat employees with due respect and consideration to maintain trust and confidence.
45
What is the employer's duty to observe sustainability regulations?
Employers must comply with laws and regulations related to sustainability, such as the Equality Act 2010, Employment Rights Act 1996, Environment Act 2021, and Companies Act 2006.
46
What does the National Minimum Wage Act 1998 ensure?
The act ensures a minimum hourly wage based on the employee's age, updated annually, and promotes social sustainability.
47
What are the general duties of employers under the Health and Safety at Work Act 1974?
Employers must ensure the good health, safety, and welfare of employees by: 1) Providing safe plant and systems of work, 2) Ensuring safe handling, storage, and transport of substances, 3) Providing adequate information, training, and supervision, 4) Maintaining safe workplaces with adequate access and exits.
48
What are the potential penalties for breaches of the Health and Safety at Work Act 1974?
Breaches can result in unlimited fines and/or up to 2 years imprisonment for responsible directors or officers.
49
What is the employer's duty under social security law?
Employers must pay secondary Class 1 contributions on behalf of employees.
50
What rights does an employee have under work-life balance provisions?
Employees have the right to apply for changes to hours, time, or place of work, which cannot be unreasonably refused.
51
What maternity leave and pay entitlements exist for employees?
Employees are entitled to up to 52 weeks of statutory maternity leave with 39 weeks of statutory maternity pay, subject to conditions and a statutory maximum.
52
What are the paternity leave and pay entitlements for employees?
Employees are entitled to one or two consecutive weeks of paid leave with statutory paternity pay, subject to a statutory maximum.
53
What are the parental leave entitlements for employees?
Employees with one year of service can take up to 18 weeks of unpaid parental leave per child to care for the child until their 18th birthday.
54
What is the purpose of the Equality Act 2010?
The Equality Act ensures equal treatment for employees, applicants, and contract workers. It prohibits direct and indirect discrimination, victimisation, and harassment in the workplace.
55
What is direct discrimination?
Treating people less favourably than others because of a protected characteristic.
56
What is indirect discrimination?
Applying a policy or practice that disadvantages people with a protected characteristic.
57
What is harassment in the workplace?
Any unwanted conduct related to a relevant protected characteristic.
58
What is victimisation in the workplace?
Being treated badly because of performing a protected act.
59
What are the protected characteristics under the Equality Act 2010?
1) Age, 2) Disability, 3) Sex (including sexual orientation or gender re-assignment), 4) Race (colour, nationality, ethnic/national origins), 5) Religion or belief, 6) Marriage or civil partnership, 7) Pregnancy or maternity.
60
What is objective justification under the Equality Act 2010?
Employers can avoid liability for discrimination if they prove their actions were a 'proportionate means of meeting a legitimate aim.' Proportionate means the discriminatory effect is outweighed by the benefits, with no reasonable alternative.
61
What are the three considerations for notice provisions?
1) Terms of the employment contract, 2) Common law requires reasonable notice based on the position and nature of the job, 3) Statutory minimum notice based on length of continuous employment.
62
What is the statutory minimum notice for 1 month to less than 2 years of employment?
Not less than 1 week.
63
What is the statutory minimum notice for 2 years to less than 12 years of employment?
Not less than 1 week per year of continuous employment.
64
What is the statutory minimum notice for 12 years or more of employment?
Not less than 12 weeks.
65
Under which act is unfair dismissal governed?
Employment Rights Act 1996, as amended by the Employment Act 2008.
66
Who can bring a claim for unfair dismissal?
Any employee who feels they have been unfairly dismissed.
67
Where must claims for unfair dismissal be made?
Before the employment tribunal.
68
What are the 4 steps required to prove an unfair dismissal?
1. The employee must show they are a qualifying employee. 2. The employee must show they have been dismissed. 3. The employer must show the dismissal was for a fair reason (e.g., capability, misconduct, redundancy). 4. The employer must show they behaved reasonably and followed proper procedures.
69
What is the first step in claiming unfair dismissal?
The employee must show that they are a qualifying employee.
70
Name two categories of employees excluded from the unfair dismissal act.
1) Persons employed to work outside Great Britain, 2) Employees dismissed while taking unofficial strike or other industrial action.
71
What is the time limit for making a claim for unfair dismissal?
Within 3 months of the date of termination.
72
What is constructive dismissal?
It occurs when an employer repudiates some essential term of the contract, leading the employee to resign.
73
What must an employee prove to claim constructive dismissal?
1) Employer committed a serious breach of contract, 2) Employee left because of the breach, 3) Employee has not 'waived' the breach.
74
List two examples of breaches of contract that can lead to constructive dismissal.
1) A reduction in pay, 2) A complete change in the nature of the job.
75
What is required for a dismissal to be considered 'fair'?
The employer must show the dismissal was for a fair reason and that they behaved reasonably and followed procedures.
76
Name the three elements of the reasonableness test for fair dismissal.
1) Relevant procedures followed, 2) Circumstances considered, 3) Actions of a reasonable employer.
77
What can failure to comply with procedures during dismissal lead to?
Damages being increased (employeer) or reduced (employee) by up to 25%.
78
What are the fair reasons for dismissal?
1) Capability/qualifications, 2) Misconduct, 3) Redundancy, 4) Statutory restriction, 5) Some other substantial reason.
79
What must an employer prove in cases of dismissal due to capability?
Lack of capability based on contract requirements, general performance, or previous employee performance.
80
Name one good practice for employers in redundancy cases.
Consultation with the trade union.
81
What does the statutory restriction reason for dismissal include?
Legal prohibition or restriction on either employer or employee that prevents employment continuation.
82
List one example where dismissal has been considered fair for 'some other substantial reason'.
Dismissal on the grounds of age, if proportionate and objectively justified.
83
Multiple Choice: Which of the following is NOT a fair reason for dismissal?
(a) Redundancy
(b) Misconduct
(c) Employee's marital status
(d) Statutory restriction
(c) Employee's marital status.
84
True or False: Employees dismissed while taking unofficial strike action are within the act.
False.
85
True or False: A claim for unfair dismissal must be made within 6 months.
False, it must be made within 3 months.
86
What is reinstatement in the context of remedies for unfair dismissal?
An order that the employee may return to the same job without any break of continuity.
87
What is re-engagement in the context of remedies for unfair dismissal?
An order that the employee is given new employment with the employer (or his successor or associate) on terms comparable with the old job or otherwise suitable.
88
What are the three categories of compensation in remedies for unfair dismissal?
Basic award, compensatory award, and additional award.
89
What is a basic award in compensation for unfair dismissal?
Calculated by reference to the employee's length of service and age, with no link to the loss suffered by the employee.
90
What is a compensatory award in compensation for unfair dismissal?
An amount the tribunal considers 'just and equitable' in all the circumstances, assessed on common law principles.
91
What is an additional award in compensation for unfair dismissal?
An award granted if the employer does not comply with an order for reinstatement or re-engagement and does not show it was impractical to do so.
92
Under what conditions can an additional award be granted in remedies for unfair dismissal?
When the employer fails to comply with a reinstatement or re-engagement order, the additional award comprises between 26 and 52 weeks' pay.
93
What is the statutory maximum for compensation in unfair dismissal remedies updated yearly for?
The statutory maximum is updated yearly to ensure fairness and equity in compensation.
94
What is wrongful dismissal?
Wrongful dismissal occurs when an employer dismisses an employee in breach of an express or implied term of the employment contract, such as giving inadequate or no notice.
95
What are the benefits of bringing a claim for wrongful dismissal compared to unfair dismissal?
1. No maximum amount of damages.
2. Time limit for bringing a claim is 6 years from the breach.
3. No minimum period of employment required.
96
What is the time limit for making a claim for wrongful dismissal?
Time limit for bringing a claim is 6 years from the breach.
97
What are examples of justifications for summary dismissal?
1. Willful refusal to obey a lawful order.
2. Gross misconduct (e.g., acceptance of secret commission, assault).
3. Dishonesty in a position of trust.
4. Gross or persistent negligence.
98
What are the remedies for wrongful dismissal?
1. Damages based on what the employee would have earned if proper notice was given.
2. Mitigation of losses by looking for new employment.
3. Injunctions to restrain contract breaches or declarations of employee rights (rare cases).
99
How is compensation for wrongful dismissal determined?
Compensation is based on earnings and benefits the employee would have received if proper notice was given or the contract breach had not occurred. The employee has a duty to mitigate losses.
100
What can a person claim when made redundant?
Where a person is dismissed in a redundancy situation he may claim a minimum statutory redundancy payment. This is calculated in a similar way to the basic award for unfair dismissal.
101
What constitutes redundancy according to the key terms? 3
A dismissal is treated as caused by redundancy if the only or main reason is that:
- The employer has ceased, or intends to cease, to carry on the business for the purposes for which the employee has been employed, or
- The employer has ceased, or intends to cease to carry on the business in the place where the employee was employed, or
- The requirements of that business for employees to carry out work of a particular kind, or for them to carry out the work in the place where they were so employed, have ceased or diminished.
102
What must an employee show to meet the conditions for redundancy?
1. He must have been employed continuously for 2 years.
2. He must be an employee (not self-employed or a partner).
3. He has brought the claim within 6 months from the date of termination.
103
What must an employee show to prove dismissal by reason of redundancy?
Dismissal here includes being laid off (earns nothing) or kept on short time (earns less than half of normal pay) for 4 or more consecutive weeks or for 6 weeks in a period of 13 weeks.
104
When will an employee not be entitled to a redundancy payment?
1. If he is guilty of misconduct which would justify dismissal.
2. If he refuses an offer to renew his contract.
3. If he unreasonably refuses an offer of alternative employment.
105
What must an employer consider before making redundancies?
Before making redundancies, an employer must consider whether they can offer the employee suitable alternative employment.
106
What is required for an alternative employment offer to be valid?
The alternative employment must be in the same capacity, terms, place and on the same terms and conditions as the original employment and must not be perceived as lower in status.
107
What happens during the four-week trial period for alternative employment?
The employee is entitled to a four-week trial period in the new employment. If either party terminates the new contract during the trial period, it is treated as a case of dismissal for redundancy at the expiry date of the previous employment.
108
INTERACTIVE QUESTION 29: DUTIES
Identify whether the following statements are true or false in relation to the duties of the employer
and the employee.
A There is a duty of mutual trust and confidence between the employer and the employee
B An employer has a duty to pay reasonable remuneration
C An employer does not owe a duty to provide a reference for his employee
D An employee must always obey his employer's instructions
A True.
B False. The duty is to pay the remuneration agreed between the parties (which, arguably, might not be 'reasonable'). However, in the absence of any express provision, the duty is then to pay reasonable remuneration.
C True. However, if he does choose to provide one, he is obliged to ensure that it is accurate and fair.
D False. He need not obey if obedience to the instruction would require him to do an unlawful act, expose himself to personal danger or do something outside his contract.
109
INTERACTIVE QUESTION: 30: NOTICE PERIODS
Indicate whether or not Asif, Beatrice and Cliff have been given sufficient notice in the following
YES OR NO
A Asif has been employed for twelve months and has been given 1 week’s notice of dismissal.
B Beatrice had been employed for four months and was dismissed without notice when her employer discovered that she was pregnant.
C Cliff has been given 1 month notice from his job which he has held for 15 years.
Asif has been given sufficient notice as 1 week is the minimum notice period required between 1 week and 2 years’ service. Beatrice is entitled to one week’s notice.
Cliff has not been given sufficient notice as he is entitled to 12 weeks’ notice.
110
Indicate whether or not each of the following statements is correct. The dismissal of an employee will constitute an unfair dismissal if it:
YES OR NO OR MAYBE
A Is on the grounds of pregnancy
B Relates to an employee seeking to enforce the minimum wage
C Is on the grounds of retirement
D Is due to the employee taking part in unofficial industrial action
A Yes. Pregnancy-related dismissal is automatically unfair.
B Yes. Dismissal as a result of the employee trying to enforce the national minimum wage is automatically unfair.
C Maybe. Retirement is a potentially fair reason for dismissal but the appropriate procedures must have been followed.
D No. An employee dismissed for this reason is not a qualifying employee within the Act.
111
INTERACTIVE QUESTION 32: WRONGFUL DISMISSAL
Indicate whether or not each of the following represents circumstances under which an employer is likely to incur liability for wrongful dismissal:
YES OR NO
A The employee has resigned as a result of his employer's serious breach of contract
B An employee who has worked for an employer for six years is given one month's notice of dismissal
C The contract between employer and employee states that the employee cannot be dismissed during a three month training period and the employer dismisses the employee after two months
D The employee is guilty of gross negligence
The employer is likely to incur liability for wrongful dismissal in all cases except D, since gross negligence on the employee’s part will justify summary dismissal.
112
INTERACTIVE QUESTION 28: EMPLOYEE V INDEPENDENT CONTRACTOR
Charles saw a sign advertising vacancies at a local building site. He contacted the foreman and was told that he would be required but that, because work depended on the weather conditions, he would work as and when required and would not be given an employment contract. He was also told that he would be accountable for his own income tax and national insurance. The foreman added that, like all of his employees, he would be provided with tools and that at the beginning of each day he would be told whether he would be needed and, if so, which site he would be working on that day. Lateness or theft of materials would lead to his dismissal. Which of the following best describes his legal status?
A Charles is an employee because the provision of tools and control over his work, plus the fact that he is told that he could be dismissed for lateness or theft indicate that he is an employee.
B Charles is not an employee due to the fact that he has to account for his own tax and national insurance.
C Charles is an employee because he has responded to a job advertisement and the foreman referred to the contractors as employees.
D Charles is not an employee because the fact that work is dependent on weather conditions means that there is no mutuality of obligations.
D Assuming that there is no intention for Charles to be paid even when he is not required to work, then he is a casual worker and not an employee because there is no mutuality of obligations. If he were to be paid even in the absence of work, he would be an employee. In those circumstances, even though he does not receive an employment contract, the facts indicate a contract of service, since the employer provides the tools, controls when and where he works and reserves the right to dismiss him.
113
1 All of the following, except one, are indicators of a contract of service.
Requirement
Which is the exception?
A Mutuality of obligation
B Some element of control exercisable by the employer over the employee
C Deduction of tax at source by the employer
D Some element of personal service by the employee
1 Correct answer(s):
C Deduction of tax at source by the employer
Deduction of tax at source is consistent with and suggestive of a contract for services, but it is not conclusive.
114
2 All of the following, except one, must be included in a written statement of employment particulars.
Requirement
Which is the exception?
A The title of the employee’s job
B Sick leave entitlement
C Details of appraisal procedures
D Details of entitlement to holiday and holiday pay
2 Correct answer(s):
C Details of appraisal procedures
In accordance with the Employment Rights Act 1996, this information is not required to be included.
115
4 Are the following statements true or false in relation to determining whether a working arrangement
is between an employer and employee or between an employer and an independent contractor? Provided there is an element of control and personal service and mutuality of obligations present,
then the arrangement is a contract of employment.
A True
B False
Where a person is only offered work on an as-and-when required basis by their employer, the working arrangement cannot be a contract of service.
C True D False
4 Correct answer(s): B False
Although the existence of these elements is absolutely essential in order for a contract to be held to be a contract of service rather than a contract for services, their existence does not necessarily mean that this will be the case. The application of the multiple test may still result in the arrangement being a contract for services.
Correct answer(s): C True
In such cases there is an absence of mutuality of obligations, which is an essential ingredient for the existence of a contract of service.
116
5 Linda works as a driver for Wally’s Warehouses. She wears a Wally’s uniform and drives a Wally’s van belonging to her employer. She is paid gross and accounts for tax and national insurance herself. Each day, she is told by the manager of Wally’s Warehouses what to deliver and to whom. She is allowed to ask her partner to make deliveries for her in the event that she is ill. She is not permitted to work for anyone else and is entitled to receive six weeks’ holiday pay from Wally’s Warehouses.
Requirement
Which of the following best describes Linda’s employment status?
A She is an independent contractor because she is paid gross and accounts for tax and national insurance herself.
B She is an employee. The fact that she is paid gross and can substitute her partner to provide the services are not conclusive and the other factors point to her being an employee.
C She is an independent contractor because there is not a sufficient level of personal service for a contract of employment to exist, since her partner is allowed to do her work for her in the event that she is ill.
D She is an employee because the fact that she is only permitted to delegate in limited circumstances means that she cannot be an independent contractor.
5 Correct answer(s):
B She is an employee. The fact that she is paid gross and can substitute her partner to provide the services are not conclusive and the other factors point to her being an employee.
The courts apply a multiple test and all the factors, save with regard to payment of tax and delegation to some extent, suggest a contract of employment. A limited power of delegation is not inconsistent with a contract of employment.
117
8 Terms that form part of an employment contract have a number of sources.
Requirements
Are the prescribed particulars in a written statement of employment particulars a source of terms in an employment contract? A Yes B No
Is legislation, such as the Health and Safety at Work Act 1974, a source of terms in an employment contract?
C Yes D No
8 Correct answer(s): B No
A written statement of employment particulars, provided in accordance with the Employment Rights Act 1996, does not form part of a contract of employment but may serve as evidence of its terms.
Correct answer(s):
C Yes
Terms can be implied into an employment contract from legislation.
118
9 Are the following legal consequences of someone being held to be an ‘independent contractor’ rather than an employee?
They may need to register for and charge VAT.
A Yes
B No
They have the right to bring a claim for unfair dismissal under the Employment Rights Act 1996. C Yes
D No
9 Correct answer(s): A Yes
An employee, on the other hand, would not register for VAT separately from their employer.
Correct answer(s):
D No
Under the Employment Rights Act 1996, only employees have the right to bring a claim for unfair dismissal.
119
11 Are the following statements true or false?
A contract of employment must be either in writing or evidenced in writing.
A True
B False
LO 4b
The law may imply terms into a contract of employment even where the parties to it have not expressly agreed that they should be included.
C True D False
11 Correct answer(s): B False
An employment contract can be created orally.
Correct answer(s):
C True
Terms may be implied by common law or statute. For example, legislation provides that all employees should have equality of terms and conditions of employment relating to pay.
120
12 When must an employer provide a written statement of employment particulars to an employee (in the absence of an employment contract)?
A On or before the day employment commences
B Within 28 days of employment commencing
C Within 2 months of employment commencing
D Within 3 months of employment commencing
12 Correct answer(s):
A On or before the day employment commences
To comply with the Employment Rights Act 1996, written particulars must be provided on or before the day employment commences.
121
15 Are the following implied duties of the employer in a contract of employment? To assess the employee’s performance on an annual basis
A Yes
B No
To pay reasonable remuneration C Yes
D No
15 Correct answer(s): B No
There is no such duty on the employer implied by common law. Correct answer(s):
C Yes
The employer owes a duty at common law to pay reasonable remuneration. This duty is subject to any express provision, for example to pay a rate fixed by the parties, or to pay nothing during a lay- off.
122
16 Amran is employed on a part-time basis by Lady Noble, to manage her portfolio of property and equities. He is paid on a commission only basis. The parties have agreed that Amran will be paid an agreed commission every time he makes a profit on a sale transaction for Lady Noble. Last year, Amran was very happy with his earnings but in the past eight months, he has earned very little because Lady Noble has been planning a new business project and has failed to give Amram instructions when requested.
Requirements
Might Lady Noble be liable for breach of her common law duty to pay Amran remuneration? A Yes
B No
Might Lady Noble be liable for breach of her common law duty to provide Amran with work? C Yes
D No
16 Correct answer(s): B No
The duty is to pay the agreed remuneration and, in the absence of express provision, to pay a reasonable amount (subject to the legal requirements concerning the minimum wage).
Correct answer(s): C Yes
Generally speaking, there is an implied obligation to provide work or to continue to pay wages where no work is provided. Where an employee is paid on a commission only basis (as Amran is here), the duty is to give the employee the opportunity to earn their commission.
123
17 Are the following statements true or false?
An employer has a common law duty not to pass confidential information to a third party about an employee.
A True B False
An employer owes a common law duty to provide an accurate and fair reference for their employee on termination of their employment.
C True D False
17 Correct answer(s): A True
However, he may do so in those cases where he has received the employee’s consent. Correct answer(s):
D False
There is no obligation on an employer to provide a reference, but if an employer chooses to do so, they must exercise reasonable care and skill in order to ensure that the information relayed in the reference is accurate and fair.
124
21 Martha has been working for Mark-Up Cars Ltd for 13 years.
Requirement
What is the statutory minimum notice period to which she is entitled under the Employment Rights Act 1996?
A At least one month
B At least 13 weeks
C At least 12 weeks
D At least one year
21 Correct answer(s):
C At least 12 weeks
The Employment Rights Act 1996 provides that the minimum period of notice is not less than 12 weeks where an employee has continuous employment with the same or an associated employer of 12 years or more.
125
23 Tia and Ricki were both recently dismissed from their roles at Heave plc. Tia was told that the reason for her dismissal is because she had reached the normal retirement age for someone in her profession. Ricki was told that she was dismissed because she took too much time off work when there were complications with her pregnancy.
Requirements
Was the reason given to Tia for her dismissal an automatically unfair reason for dismissal? A Yes
B No
Was the reason given to Ricki for her dismissal an automatically unfair reason for dismissal? C Yes
D No
23 Correct answer(s): B No
Dismissal at retirement age is a potentially fair reason for dismissal if it is shown to be proportionate and objectively justifiable in order to constitute “some other substantial reason” for the dismissal.
Correct answer(s):
C Yes
Pregnancy or related matters is an automatically unfair reason for dismissal.
126
26 Nathan is employed by Clifford to manage the catering at a conference of the South East Police Service in Brighton over a two-week period.
Requirement
All of the following except one would constitute dismissal for the purposes of an unfair dismissal claim. Which is the exception?
A If Clifford were to tell him a month in advance that he has found someone to provide the same services more cheaply and Nathan is not required.
B If Clifford were to send Nathan home on the third day because the vol-au-vents were uncooked.
C If Clifford were to say that he was no longer needed Nathan because fewer delegates than expected had attended the conference.
D If the conference were to be cancelled because a large proportion of the delegates were required to report for duty in view of a major earthquake in Brighton.
26 Correct answer(s):
D If the conference were to be cancelled because a large proportion of the delegates were required to report for duty in view of a major earthquake in Brighton.
These circumstances would frustrate the contract. Frustration of a contract does not constitute dismissal for the purposes of unfair dismissal protection.
127
33 Under the Employment Rights Act 1996 can a compensatory award for unfair dismissal be reduced in the following circumstances?
Where the employee’s conduct causes or contributes to their dismissal
A Yes
B No
Where the employee fails to mitigate their loss, eg, by seeking employment elsewhere C Yes
D No
33 Correct answer(s): A Yes
Correct answer(s): C Yes
128
35 Oliver has been employed by Hots Ltd to deliver pizza for the past 10 months. His manager, Lucia, is regularly rude and swears at Oliver and one day accuses him of stealing pizzas, which is not true. Lucia then pushes Oliver off his delivery bike and tells him to get lost. Oliver leaves and has not been back to work at Hots Ltd since. Requirements
Can Oliver bring a claim for unfair constructive dismissal? A Yes
B No
Can Oliver bring an action for wrongful dismissal?
C Yes D No
35 Correct answer(s): B No
He does not have a sufficient period of continuous employment (of two years) with Hots Ltd. Correct answer(s):
C Yes
Wrongful dismissal is a common law action where the employer dismisses the employee in breach of contract. In the present case Oliver’s employer has acted in breach of his implied duty of mutual trust and confidence.
129
36 Raita works as a receptionist for Bayview Hotel. Her contract provides that the employer may terminate the contract without notice but subject to paying the equivalent of six months’ salary. After working there for only nine months, Raita is handed notice of termination with immediate effect.
Requirement
Which of the following best describes her legal position?
A Raita can bring an action for wrongful dismissal without notice.
B Raita is unable to bring an action because she has only been employed for nine months.
C Raita has no right to sue for wrongful dismissal but may enforce the obligation to pay six months’ salary.
D Raita may bring an action for wrongful dismissal and damages will be the equivalent of six months’ salary.
36 Correct answer(s):
C Raita has no right to sue for wrongful dismissal but may enforce the obligation to pay six months’ salary.
Raita may sue for the agreed sum, ie, the equivalent of six months’ salary, under the contract and will be under no duty to mitigate her loss. Continuous employment is irrelevant to an action for wrongful dismissal (B).
130
37 The following employees have recently left App Design Ltd.
Don was dismissed with 28 days’ notice. His contract states that he is entitled to 35 days’ notice.
Jaz was employed for a fixed contract term of six months which was not renewed when it expired.
Amol was made redundant, but he was selected for redundancy in contravention of App Design Ltd’s contractual redundancy selection procedure.
Dimitri resigned following the repudiation of his employment contract by App Design Ltd.
Requirement
Which employees were wrongfully dismissed? A Don and Jaz only
B Amol and Dimitri only
C Don, Amol and Dimitri only
D Jaz, Amol and Dimitri only
37 Correct answer(s):
C Don, Amol and Dimitri only
Non-renewal of a fixed-term contract on expiry may constitute an unfair dismissal but it is not a wrongful dismissal. The other options are all examples of wrongful dismissal.
131
38 A contract between Gary and his employer, Go-Go Ltd, contains, amongst others, the following two provisions.
Provision 1: “Gary is ‘the employee’ and Go-Go Ltd is ‘the employer’.”
Provision 2: “Gary must perform his duties himself unless he is ill, in which case he can delegate them to another person that he chooses.”
Requirements
Are the following statements true or false? Provision 1 is conclusive proof that a contract of employment exists. A True
B False
Provision 2 is conclusive proof that a contract of employment exists. C True
D False
38 Correct answer(s): B False
The labels attached by the parties (ie, ‘employee ‘and ‘employer’) are relevant but are not critical or conclusive.
Correct answer(s):
D False
The ability to delegate work indicates self-employment not employment.
132
39 Arthur works as an accountant for the Churchill High School. He embezzles £30,000 of the school’s funds and is subsequently arrested and charged with theft. The Governors of the school dismiss him from his post with immediate effect following a disciplinary hearing, during the course of which Arthur was offered the right to appeal against their final decision but turned it down.
Requirement
Which of the following best describes the legal position?
A The school is justified in dismissing Arthur without notice as he has engaged in gross misconduct and the school therefore has no liability, particularly since disciplinary and dismissal procedures appear to have been followed.
B The school is justified in dismissing Arthur (as he has engaged in gross misconduct) and will only be liable for nominal damages as a result of terminating his contract with less than the statutory minimum period of notice under the Employment Rights Act 1996.
C The school is liable for wrongful dismissal, as a reasonable employer would have given Arthur a warning first in the circumstances.
D Arthur is entitled to claim wrongful dismissal because he has been dismissed in breach of his employment contract.
39 Correct answer(s):
A The school is justified in dismissing Arthur without notice as he has engaged in gross misconduct and the school therefore has no liability, particularly since disciplinary and dismissal procedures appear to have been followed.
This is not a wrongful dismissal because Arthur has engaged in gross misconduct justifying his summary dismissal.
133
40 Are the following statements true or false? Redundancy is a form of dismissal.
A True
B False
A statutory redundancy payment is calculated in the same way as the basic award in unfair dismissal cases.
C True D False
40 Correct answer(s): A True
Correct answer(s): C True
It is calculated in the same way as a basic award for unfair dismissal (based on an employee’s age and length of service).
134
41 Raphael performs work for Big Build Ltd, but it is not clear whether he is employed or is an independent contractor.
Requirements
Are the following statements true or false?
The fact that Raphael only does work for Big Build Ltd is an indication that he is an independent contractor.
A True B False
41 Correct answer(s): B False
Correct answer(s): C True
Only working for one ‘employer’ and being given all the tools necessary to perform a role are both indications of employment, not of being an independent contractor.
135
44 Kate has been working as a payroll clerk in the local office of Bespoke Windows Ltd for the past 18 months. When the company installs new IT systems for all its financial and administrative operations, it informs Kate that she is no longer required and advertises for a new employee who is competent in the use of its new IT system (which Kate is not).
Requirements
Has Kate been made redundant in accordance with the Employment Rights Act 1996?
A Yes
B No
Is Kate entitled to claim a statutory redundancy payment under the Employment Rights Act 1996? C Yes
D No
44 Correct answer(s): A Yes
The requirements of Bespoke Windows Ltd for work of a particular type have ceased.
Correct answer(s):
D No
An employee must have two years or more continuous employment with the same or an associated employer at the relevant date, in order to be entitled to claim a statutory redundancy payment.
136
48 Aktar has undertaken work as a lorry driver for Hopeless Haulage Ltd for the past three years under the following terms:
He is responsible for maintaining his own lorry. He pays his own tax and national insurance and may substitute another lorry driver for himself, but only on receipt of written permission from the company.
Requirements
Advise Aktar as to whether he is in fact an employee by indicating whether or not each of the following statements is true or false.
Aktar is under a degree of financial risk. This is inconsistent with a contract of employment.
A True
B False
The fact that Aktar’s ability to delegate his work is limited is consistent with the existence of a contract of employment.
C True D False
48 Correct answer(s): A True
Where the worker undertakes a degree of financial risk, this is generally regarded as a factor consistent with a contract for services.
Correct answer(s):
C True
This power of limited delegation is consistent with Aktar being an employee.
137
51 Sources of contractual terms which can come together to form an employment contract include the following:
Terms implied by the common law.
A Yes
B No
Terms contained in a written statement of employment particulars where the employee has signed the statement itself.
C Yes D No
51 Correct answer(s): A Yes
Terms may be implied into a contract of employment by common law and by statute where no express provision is made.
Correct answer(s): D No
The prescribed particulars may provide evidence of the terms of a contract of employment, but the written statement does not actually form part of that contract.
138
57 Which of the following statements regarding the Equality Act 2010 is correct?
LO 4e
A The Equality Act 2010 only protects individuals who are employed by an organisation, but there is no minimum length of service to have this protection.
B The Equality Act 2010 protects all employees who work for an organisation plus anyone who applies to work there.
C The Equality Act 2010 only protects employees who have worked for an organisation for more than six months.
D The Equality Act 2010 only protects individuals whilst they are in an organisation’s recruitment and selection process.
57 Correct answer(s):
B The Equality Act 2010 protects all employees who work for an organisation plus anyone who applies to work there.
The Equality Act 2010 protects all employees regardless of how long they have worked there. It also protects anyone applying to work for the organisation.
139
58 Westcourt Ltd is an engineering company. It has a policy of employing recent graduates into roles that make use of cutting-edge technology and paying large bonuses to them. Employees with 10 years’ experience or more are transferred to more traditional, manual engineering roles. Although the basic pay of these roles is the same as paid to those in the cutting-edge technology roles, the manual roles do not attract the same large bonuses.
Requirement
Which of the following statements is correct?
A Westcourt Ltd’s policy is an example of direct discrimination.
B Westcourt Ltd’s policy is an example of indirect discrimination.
C Westcourt Ltd’s policy is an example of victimisation.
D Westcourt Ltd’s policy is not discriminatory nor an example of victimisation.
58 Correct answer(s):
B Westcourt Ltd’s policy is an example of indirect discrimination.
Indirect discrimination involves applying a policy or practice which disadvantages people with a protected characteristic. In Westcourt Ltd’s case, the policy discriminates on age because older workers are likely to have more experience and therefore are likely to only be employed in the manual engineering roles which attract lower bonuses.
140
59 Can employers ever avoid liability if they commit discrimination?
A No. Discrimination is never justified so liability cannot be avoided.
B Yes. But only if the discrimination is a proportionate means of achieving a legitimate aim.
C Yes. But only if the discrimination is morally acceptable.
D Yes. But only if the discrimination is unavoidable.
59 Correct answer(s):
B Yes. But only if the discrimination is a proportionate means of achieving a legitimate aim.
If a discrimination case goes to court, employers can avoid liability if they can prove that their actions were a ‘proportionate means of meeting a legitimate aim’.
141
61 Mila is employed by Fashions First Ltd to order the new season’s clothing for men from various suppliers. In many cases, when she places an order, she receives a commission from the supplier and keeps this commission for herself, regarding it as a perk of the job.
Requirement
In respect of which implied common law duty is Mila in breach?
A The duty of fidelity
B The duty to obey lawful and reasonable orders
C The duty not to misuse confidential information
D The duty to exercise reasonable care and skill
61 Correct answer(s):
A The duty of fidelity
The duty of fidelity is a common law duty owed by an employee to their employer to provide faithful service. Mila is liable to be dismissed because she has acted in breach of this implied term of her employment contract and will be liable to account to Fashions First Ltd for all the secret commissions that she has received.
142
63 Which of the following national insurance contributions are employers obliged to pay on behalf of their employees?
A Class 1 primary
B Class 1 secondary
C Class 2
D Class 4
63 Correct answer(s):
B Class 1 secondary
Employers must pay secondary Class 1 contributions on behalf of employees. Employees pay primary Class 1 contributions. Independent contractors pay Class 2 and 4 contributions.
