Employment Law Flashcards
(26 cards)
Employer + employee duties
Employer:
-can be individual/partnership/company
-must provide safe working environment
-explain role, responsibilities, etc
-provide salary/wage + pay tax+NI
Employee:
-turning up for work
-carry our work duties
-statutory rights (right to annual leave, SMP, sick leave, etc)
Laws governing contracts of employment
-legislation (e.g Employment Rights Act 1996, Equality Act 2010s, Health and Safety at work Act 1974)
-contract + tort law
-equity law
Employment statuses
Employees - under a contract of service
Workers - some rights but limited (can’t bring unfair dismissal claim)
Independent contractors - self employed, less protection
Workers can sue for discrimination case
Bates van Winkelhof v Clyde
Person was found to be a worker so was entitled to sue for discrimination
5 tests determining employment status
1) Control test
2) Integration test
3) Economic reality test
4) Mutuality of obligation test
5) Multiple test
Control test
-req court to enquire about extent of supervision
-more evidence of control provided to court, more likely decision that individual is an employee working under ‘contract of service’
-measures employers control over work performed
Integration test
-examines how necessary individual is to the business
-more integrated individual, more likely they’re working under contract of service
Economic reality test
-looks for evidence of self employment rather than employment
-evaluates financial independence + risk taking
-more evidence of economic evidence found, less likely a contract of service exists
Mutuality of obligation test
-determines if employer must provide work + employee must accept
-mutuality of obligation exists when both parties are bound by the terms of the contract, meaning the employer is not just offering work occasionally and the worker is not just available sporadically (it is an ongoing relationship)
Mutuality of obligation case
Drake v Ipsos Mori
In this case, there was a mutuality of obligation therefore the individual was deemed an employee not self employed
Multiple test
Contract of service exists if:
1) Does he have to turn up to work when expected? =YES
2) Does he have to do what company says? =YES
3) Is he expected to do it personally? = YES
4) Can he send someone else to do it for him? =NO
Multiple test - employee or self employed? Case
Ready mixed concrete v Minister of pensions
Lorry drivers were ruled self employed not employees as they didn’t meet all req of multiple test
Express and implied terms definitions
Express= specifically agreed between parties and stated in contract
Implied = implied into contract by common law or by statute
Terms implied by statute (4)
-Employment Rights Act 1996 (covers unfair dismissal, wage deductions, redundancy, parental leave)
-Equality Act 2010 (protects against discrimination in employment + recruitment)
-Healthy & Safety at work Act 1974 (mandates safe working environment, inspections + criminal liab for non-compliance)
-National Minimum Wage Act 1998 (sets wage standards)
ERA S92
Employee has right to written statement of reasons for dismissal
ERA S86
Notice of dismissal- req employers to give min periods of notice depending on length of employment
Statutory minimum notice periods
- less than 1 month = no notice
-1 month - 2 years = 1 week - 2 years = 2 weeks
- 3 years = 3 weeks
Until max 12 weeks (employers can’t reduce these periods but can extend them)
3 dismissal claims employees can bring to ‘employment tribunal’
- unfair dismissal
-wrongful dismissal
-constructive dismissal
Wrongful dismissal
Employer has breached contract (e.g. employee handbook states how dismissal should be n he didn’t follow it) or hasn’t given proper notice
Constructive dismissal
- Where employee is entitled to resign w/o giving notice cos of employers behaviour
- This exists so employers can’t get away with essentially bullying employees (that they may have wanted to fire) to the point where they resign
- Only applicable to employers of over 2 years
Unfair dismissal
Available to employees minimum 2 years
Tribunal must answer 3 questions:
1) Has employee been dismissed?
2) What was reason for dismissal?
3) Did employer handle it reasonably?
Unfair dismissal - 2) reasons for dismissal
1) Potentially fair reasons :
- capability
-conduct ( ordinary misconduct- not fair if no warnings, gross misconduct - fair)
-redundancy (if dismissal wasn’t in their opinion all for redundancy/ no redundancy payment, employers should have fair selection criteria when deciding who to dismiss)
-statutory bar (fair if continued employment illegal)
-industrial action participation >12 weeks
-some other substantial reason (reorganisation, 3rd party pressure, workplace disruption)
2) Automatically fair reasons:
-unofficial industrial action participation
-dismissal to protect national security
3) Automatically unfair reasons:
-pregnancy/mat leave
-health and safety reasons
-‘spent’ criminal conviction
-refusing to work on Sunday (retail/betting workers only)
-trade union / industrial action <12 weeks
-making flexible working request
-asserting a statutory right
-new business owner dismissing former employee with no valid reason (TUPE regulations 2006)
Unfair dismissal - 3) did employer handle it reasonably?
The band of reasonable responses- test that determines fairness based on:
-procedure
-consistency
-proportionality
ACAS Code of Practice - tribunals can adjust awards up to 25% for unreasonable failure to comply (increase for employer , decrease for employee )
Automatically fair dismissal gross misconduct case
Burchell v British Home Stores Evaluating fairness of dismissal - ruled fair as employer took proper steps to ensure employee committing GROSS MISCONDUCT was fully responsible
