Chapters 11&12 Flashcards
(24 cards)
Contract of employment
Offer, Acceptance, Consideration, Act
No formalities are required to have a written contract, can be oral BUT the employment act 1996 stipulates that a written document outlining the main terms of employment must be supplied within two months of the date of the commencement. It must include
- job title description
- length of notice period
- names of both parties and commencement date
- rate and method of calculating pay
- frequency of payment
- holiday pay entitlements and rates
- hours of work
Employment contract - implied terms?
Will be supplemented by terms implied from 3 main sources?
Statute - eg equality act
Common Law - duties imposed on employ[ers/ees]
Custom - Deductions for poor workmanship were commonplace in the cotton industry
Collective Agreements - eg between employers/trade unions
EMPLOYEE RULEBOOKS may not be implied as contractual terms but disobeying them may mean the employee isn’t following reasonable orders
Common law duties of employers
- mutual trust and confidence
- pay wages
- indemnify employee for losses/expenses occurred
- provide for the health and safety of the employee
- provide a reasonable amount of work for apprentices and piecemeal workers
Common law (implied) duties of employees
- duty of honest and faithful service
- reasonable competence
- obedience of laws and reasonable orders
- account for all monies and property
- reasonable care and skill in the performance of their work
- mutual co-operation
- not to misuse confidential info
- personal service
NO duty to provide a reference when employee leaves service but if they volunteer and don’t provide one, they’re not being fair
Statutory Duties of employers
pay and equality (age,disability,sex,race,religion)
- provide itemised pay statements
- time off work (trade union, public duties)
- time off work (maternity/paternity/redundant looking for work time)
- health and safety at work act 1974
Ending the employment relationship
Can end without a breach of contract in the following ways:
- serving a notice
- payment in lieu of notice
- expiry of a fixed term
- mutual agreement
- frustration
Notice periods
Typically agreed between the parties in the written contract of employment. It depends on the length of the employees service.
1 month - less than 2 years = atleast 1 week required
more than 2 years = 1 week for each continuous year worked
12 years or more = minimum of 12 weeks
Dismissal Definition
Refers to situations where the employer decides to terminate the employment relationship.
Also includes circumstances where the employer chooses not to renew a fixed term contract
(summary, constructive, wrongful and unfair)
Summary Dismissal
Employee sacked on the spot eg without any notice
only justified if employer can demonstrate that the employee has committed an act that equates to a conditional breach of contract eg gross misconduct BUT if not then the employee has been wrongfully/unfairly dismissed.
Constructive dismissal
when an employee has resigned but is able to prove they did so under duress from their employer eg victimising/harassing staff, making significant changes to the location of the work at short notice, changing terms of the contract without consultation
A successful claim = worker can start an unfair dismissal claim
but if the employee doesnt resign, theyve accepted the employers breach and waived any rights
Wrongful Dismissal
common law claim that can be made where an employee has been dismissed without justification, often when they have been denied their required notice period
Commonly claimed by employees that dont qualify for unfair dismissal as theyve been working for less than 2 years.
Comparable to breach of contract and may be a claim for damages.
JUSTIFIABLE REASONS ARE
- wilful disobedience of a lawful order
- misconduct
- dshonesty
- incompetence/neglect
- gross negligence
- immorality
- drunkenness
Unfair dismissal
Statutory claim made by qualified employees who have been ‘unfairly dismissed’
- employees employed for more than 2 years, have been dismissed and unfairly so can seek remedies. cant be people outside of the UK, for taking part in unofficial strike action or an excluded profession eg police.
Must bring a claim to the employment tribunal within 3 months of dismissal. Employer will try to prove 1/5 justifiable reasons:
- lack of capability/qualifications
- gross misconduct
- general redundancy
- breach of employers statutory duty due to legal prohibition/restriction
- other substantial reason eg married competitor
Written Disciplinary Procedures
Companies commonly have these rules and procedures to deal with employee performance and conduct. These rules should:
- be notified to all staff
- state whats acceptable and not
- actions taken if rules broken
- when staff may face disciplinary hearing
- provide the name of someone to appeal to if theyre unhappy with a disciplinary decision
- examples of gross misconduct
Then an organisation disciplinary policy should cover:
- purpose and scope of policy
- disciplinary offences
- formal disciplinary hearing procedure
- what to expect at a disciplinary hearing
- gross misconduct and summary dismissal
- appealing a decision
Redundancy
A fair reason for dismissal:
- cessation of business / business in the place where the employee worked / of the business for the purposes for which the person was employed
- 2 years continuous employment have been solved
BUT an employee can lose the right to claim redundancy if;
- they have been dismissed for misconduct
- the employer makes an offer of alternative employment eg renewing and they refuse
- the claim is made out of time after 6 months
- they decide to leave on hearing the risk of redundancy but before officially being made
The calculation of pay is calculated linked to age and length of service (basic pay compensation)
Remedies
Wrongful dismissal = breach of contract and so the employee can claim damages
- of up to £25,000 to the employment tribunal
- over £25,000 to the county/high court
Bought to employment tribunal and they have the power of;
reinstatement = restored to old position
re-engagement = different but comparable position eg diff department/branch
compensation =
- basic award: linked to age/length of service
- compensatory: loss of wages may be awarded in addition to basic award at the discretion of the tribunal
- additional award: up to 52 weeks’ pay may be granted in cases of sex/race discrimination
Continuity of service?
most rights = contingent upon having sufficient length of continuous services eg 2 years for redundancy payments
rules are
- a week is one in which the employee worked for at least 8 hours
- some periods of absence are included eg sick leave
- if the employee has worked in the same business before its transfer to the present employer, it may be counted
TUPE (transfer of undertakings protection of employment ) says that when an undertaking is transferred, the employees of the business are too automatically with the same terms w unbroken service to the new owner as long as there’s a real change in ownership of the business/continuity before and after the transfer. They can only vary terms if there are economic, technical or organisational reasons to justify this.
Equality and discrimination
Protected against both direct (treating people less favourably because of a characteristic) and indirect (a practice which disadvantages people w a certain characteristic) discrimination at work through the equality act.
Justification is assessed against the following criteria;
- proportionate (effects are outweighed by other benefits)
- legitimate (eg health/safety, business efficacy)
Diversity
Aim of diversity is to focus on maximising the potential of all staff - positive for everyone by recognising/making use of the unique characteristics of a particular group.
Organisations will need to be proactive beyond the requirements of equal opportunity/discrimination;
- tolerance of differences
- communicating effectively
- managing workers w diverse family responsibilities
- adjustments with an ageing workforce
- flexible working/patterns and diverse aspirations
- differences in literacy/numeracy/international qualifications
- co-operative working w diverse teams
Equality, diversity and inclusion policy = company values, culture, framework, expectations and non tolerable areas
Health and Safety
The health and safety at work act 1974
Employers
- suitable/sufficient assessments of risks and staff informed of hazards
- emergency plans
- first aid facilities and safe working environment / working practices
- safe equipment maintained
- prevent health risks
- personal protective equipment
- safety training/info
- keep records of accidents
- safety committee if trade union requests
Employees
- take reasonable care, not putting others at risk
- allow employer to carry out safety measures
- attend safety training
- report any injuries
- not interfere with any machinery
- inform employer of dangerous situations
- use all equipment properly
- can bring civil action for any employer failure
- Contractors need to communicate properly w employers
- safety representatives appointed by trade union to inspect the workplace, employer needs to co-operate with them
- enforcement of the act is by the health and safety comission to; -enter and investigate a workplace -issue improvement notices - issue prohibition notices
Bribery and corruption
Bribery offences are regulated by the Bribery Act 2010.
A) bribing another person (active)
B) receiving a bribe (passive)
C) bribing a foreign public official
D) corporate failure to prevent bribery (not adequate enough processes)
- can be committed by state/privately employed persons/outside of the UK
- companies should have policies and guidance
- max penalty = 10 years and/or unlimited fine
- defences to army/secret services when engaged on active duty
Corruption = abuse of trust in order to gain an unfair advantage eg if there’s a conflict of interest or ‘facilitation payments’ (bribe as an extra payment to perform routine functions)
Money Laundering
process by which the proceeds of a crime (illegitimate origins), converts into assets that appear to be legitimate.
PLACEMENT - disposal of proceeds into legitimate activity
LAYERING - transfer from place-place to conceal origins
INTEGRATION - ^ combined to appear legit
Regulated under the proceeds of crime act 2002 (PCA 02)
offences =
- laundering itself (max 14 yrs/fine/seizure of the assets)
- failing to report (5 yrs/fine)
- tipping off (max 5 yrs/fine)
organisations should have a money laundering policy concerning;
matters, signs of it, reporting suspicions, how to report, what happens after, what to tell client concerned
Data Protection
Aim to protect individuals from misuse of information being held on computer-based/manual info systems.
8 principles to be complied with; fair and lawful processing obtained for a specific/lawful purpose adequate, relevant, not excessive accurate, kept-up-to date not kept for longer than needed within individuals rights kept secure not transferred to other countries
laws often give people right to find out what info is held about them for a small fee -> permission based marketing strategies for companies
they should set up a data protection policy
- purpose of policy, staff responsibility, company procedures, access to office/files, computers IT, data backups, system maintenance and reporting breaches
Whistle Blowing
name given to workers making a disclosure of wrongdoing by their employer
- public interest disclosure act 1998 (PIDA)
- offered to workers generally and no requirements of age/length of service but need to reveal the right type of info (qualifying disclosure) and to the right person in the right way (protected disclosure)
- right type of info =
criminal offence has/is/likely
company has failed with legal obligations
miscarriage of justice occurred
health/safety of someone is endangered
environmental damage
^ any of the above is being deliberately concealed - right way right person =
made in good faith
reasonable belief its true enough and to someone appropriate eg internal, legal advisor, professional(external if internal already tried or not possible), gov minister (only public sector workers), media (stricter rules apply)
right not to suffer eg lack of promotion etc if they’ve made a protected disclosure
An employee who is dismissed/selected for redundancy for making a disclosure = unfair dismissal
company whistleblowing policy should include;
purpose/scope, disclosure, what’s covered, how to report, investigations,safeguards
Social Media
broad term for internet based tools that enable individuals to contact/interact. has affected productivity in workplace. can also affect organisations communications (risk that abuse of social media = impact company reputation etc)
should have social media policy
- purpose definition scope, things to know ab public information, use of social media, excessive use at work, consequences for breaches, monitoring social media during work
Communication by employees shouldn’t
- bring company to direspute, breach confidentiality/copyright, be discriminatory, make false/misleading statements and pass comment on issues not authorised to speak on
organisation usually reserves right to monitor the use of social media by its workers via ‘reasonable use’ clause. but valid reasons for checking eg
- excessive time for non work stuff, acting contrary to company policy, breaching contractual terms
