14: Intro to Employment Law Flashcards
Where are many employment law rights enforced?
In employment tribunals rather than through the normal court system.
What is employment law based on?
The law of contract.
What are the requirements for forming an employment contract?
An agreement, intention to create legal relations, consideration, and sufficient certainty.
Which remedies will the courts not force either party to do after an employment hearing?
Perform a contract for personal services or obtain an order for specific performance.
What is the normal remedy for breach of contract for personal services?
Damages.
What must employers indemnify the employee against according to implied terms?
Employers must indemnify their employees for expenses and liabilities incurred in the course of their employment.
What is the employer’s duty regarding the employee’s safety?
Employers must take reasonable care of the employee’s safety, provide safe premises and equipment, and a safe system of work.
What is the duty for employees to provide personal service?
Employees (and other workers) cannot delegate the performance of their duties or provide a substitute to perform them.
What does the duty to obey reasonable instructions involve?
Employees must follow lawful and reasonable orders given by their employer.
What is the employee’s duty of good faith?
Employees must act in good faith towards their employer, avoiding conflicts of interest and maintaining confidentiality.
What is the duty to take reasonable care on the employee’s part?
Employees must take reasonable care in performing their duties to avoid harm to themselves or others.
What happens if an employee makes secret profits?
They must account for these profits to their employer, as making secret profits breaches their duty of loyalty.
How does the duty of good faith affect employees’ actions outside of work?
Employees must avoid conflicts of interest, such as working for a rival café outside of their working hours.
Under what conditions can employers refuse to provide work?
Employers can refuse to provide work as long as they continue to pay wages, unless it harms the employee’s skills or business reputation.
What is the Employment Rights Act 1996 (ERA 1996)?
It sets out rules on the termination of employment and claims for unfair dismissal or redundancy payment.
What is the National Minimum Wage Act 1998?
It obliges employers to pay employees and other workers aged less than 25 at least the national minimum wage, reviewed regularly.
What is the Working Time Regulations 1998?
They set maximum weekly working hours, entitle workers to rest breaks and annual holiday, with many exceptions.
What does the Equality Act 2010 (EA 2010) protect?
A Dragon Guards My Precious Ring, Relentlessly Seeking Shiny Objects.
It protects individuals against discrimination based on:
age,
disability,
gender reassignment,
marriage and civil partnership,
pregnancy and maternity,
race,
religion or belief,
sex,
and sexual orientation.
What does TUPE 2006 deal with?
The rights of employees when their employer transfers its business to a new owner.
What does TUPE 2006 do to protect current employees?
It ensures that employees have their employment automatically transferred to the new owner of the business. If they are dismissed, they have grounds for an unfair dismissal claim or a redundancy payment.
What is the contractual difference between an employee and an independent contractor?
An employee works under a contract of service, while an independent contractor works under a contract for services.
What is a zero-hours contract?
A contract that does not oblige the employer to offer a specified number of hours and does not oblige the employee to accept work.
What is a key feature of zero-hours contracts?
Flexibility for the individual as well as the employer, but it mainly benefits the employer.
What makes someone an independent contractor?
They are not obliged to:
- accept work,
- work under their own direction,
- can nominate someone else to do their work,
- provide their own tools,
- and are not under PAYE scheme or National Insurance.
What are the features of an employee’s work arrangement?
Must:
- work fixed hours,
- follow instructions,
- paid regularly,
- cannot provide a substitute,
- may be provided with tools,
- and tax is deducted under PAYE.
What are the three traditional tests to determine employment status?
- the control test
- the integration/organisation test
- the multiple/economic reality test
What does the control test examine?
The degree of control exercised by the employer over how, when, and where the worker performs their job. (oldest test)
What does the integration/organisation test examine?
Whether the worker is an integral part of the business.
Why was the integration/organisation test introduced?
For skilled professionals (like doctors) who were considered an essential part of the organisation.
What does the multiple/economic reality test examine?
The economic reality of the situation, including how much control the employer has over the worker’s activities, and how the worker is paid and taxed.
What is mutual obligation?
The obligation to offer the workers work, or the workers to accept any work they are offered.
What does the application of tests to zero-hours contracts reveal about mutuality of obligation?
There is no mutuality of obligation because the employer is not obliged to offer work, and the employee is not obliged to accept work.
What does the term “worker” include under ERA 1996?
Both employees and other individuals performing personal work or services, other than for clients or customers of their profession or business.
What is a key factor in determining whether someone is a worker?
Whether the individual agrees to perform services personally.
What was the focus of the court in Uber BV v Aslam [2021] regarding worker status?
The lack of control over their relationship with Uber and how they dealt with their passengers, and the fact that the drivers were not operating independent businesses.
Why does it matter whether someone’s employment status is employee or not?
Implied statutory rights will mainly apply to employees, but not to workers.
What are some implied statutory rights that the employee will get, but mostly not workers or independent contractors?
Right to not be unfairly dismissed
Right to a statutory period of notice
Right to a redundancy payment
Right to maternity leave/pay
Right to a minimum/living wage (+ workers)
Automatic pension enrolment (+ workers)
Who is entitled to a minimum wage or living wage?
Employees and workers under 25, but not independent contractors.
Who must be automatically enrolled in a pension scheme?
Employees and also workers, if they earn enough to qualify.
What rights do the Working Time Regulations 1998 provide?
Rights to maximum weekly working hours, rest breaks, and annual holiday for both employees and other workers.
Who is entitled to paid maternity leave and family-friendly rights?
Only employees, not other workers such as those under zero-hours contracts.
Who has the right to statutory sick pay?
Available to employees and workers if their earnings are subject to National Insurance contributions.
Who is covered by the protection under Health and Safety at Work Act 1974?
Both employees and non-employees, but the duty is more stringent for employees.
What does TUPE 2006 protect?
Rights of employees when their employer transfers its business to a new owner, potentially including workers who are not employees.
What does the ERA 1996 provide regarding competition and zero-hour contracts?
It prohibits zero-hours contracts from preventing workers or employees from working for competitors.
When are employers required to deduct tax and National Insurance?
From an individual’s earnings under PAYE only if the individual is an employee.
What is vicarious liability?
Legal responsibility for another person’s actions if they are legally liable for any harm done by that person.
When is an employer vicariously liable?
For any wrongful acts committed by their employees during the course of their employment. Cox v Ministry of Justice also said that they can be held vicariously liable for individuals who are integral to the business.
