14: Intro to Employment Law

Question 1

Where are many employment law rights enforced?

Answer 1

In employment tribunals rather than through the normal court system.

Question 2

What is employment law based on?

Answer 2

The law of contract.

Question 3

What are the requirements for forming an employment contract?

Answer 3

An agreement, intention to create legal relations, consideration, and sufficient certainty.

Question 4

Which remedies will the courts not force either party to do after an employment hearing?

Answer 4

Perform a contract for personal services or obtain an order for specific performance.

Question 5

What is the normal remedy for breach of contract for personal services?

Answer 5

Damages.

Question 6

What must employers indemnify the employee against according to implied terms?

Answer 6

Employers must indemnify their employees for expenses and liabilities incurred in the course of their employment.

Question 7

What is the employer’s duty regarding the employee’s safety?

Answer 7

Employers must take reasonable care of the employee’s safety, provide safe premises and equipment, and a safe system of work.

Question 8

What is the duty for employees to provide personal service?

Answer 8

Employees (and other workers) cannot delegate the performance of their duties or provide a substitute to perform them.

Question 9

What does the duty to obey reasonable instructions involve?

Answer 9

Employees must follow lawful and reasonable orders given by their employer.

Question 10

What is the employee’s duty of good faith?

Answer 10

Employees must act in good faith towards their employer, avoiding conflicts of interest and maintaining confidentiality.

Question 11

What is the duty to take reasonable care on the employee’s part?

Answer 11

Employees must take reasonable care in performing their duties to avoid harm to themselves or others.

Question 12

What happens if an employee makes secret profits?

Answer 12

They must account for these profits to their employer, as making secret profits breaches their duty of loyalty.

Question 13

How does the duty of good faith affect employees’ actions outside of work?

Answer 13

Employees must avoid conflicts of interest, such as working for a rival café outside of their working hours.

Question 14

Under what conditions can employers refuse to provide work?

Answer 14

Employers can refuse to provide work as long as they continue to pay wages, unless it harms the employee’s skills or business reputation.

Question 15

What is the Employment Rights Act 1996 (ERA 1996)?

Answer 15

It sets out rules on the termination of employment and claims for unfair dismissal or redundancy payment.

Question 16

What is the National Minimum Wage Act 1998?

Answer 16

It obliges employers to pay employees and other workers aged less than 25 at least the national minimum wage, reviewed regularly.

Question 17

What is the Working Time Regulations 1998?

Answer 17

They set maximum weekly working hours, entitle workers to rest breaks and annual holiday, with many exceptions.

Question 18

What does the Equality Act 2010 (EA 2010) protect?

Answer 18

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.

Question 19

What does TUPE 2006 deal with?

Answer 19

The rights of employees when their employer transfers its business to a new owner.

Question 20

What does TUPE 2006 do to protect current employees?

Answer 20

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.

Question 21

What is the contractual difference between an employee and an independent contractor?

Answer 21

An employee works under a contract of service, while an independent contractor works under a contract for services.

Question 22

What is a zero-hours contract?

Answer 22

A contract that does not oblige the employer to offer a specified number of hours and does not oblige the employee to accept work.

Question 23

What is a key feature of zero-hours contracts?

Answer 23

Flexibility for the individual as well as the employer, but it mainly benefits the employer.

Question 24

What makes someone an independent contractor?

Answer 24

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.

Question 25

What are the features of an employee’s work arrangement?

Answer 25

Must:
- work fixed hours,
- follow instructions,
- paid regularly,
- cannot provide a substitute,
- may be provided with tools,
- and tax is deducted under PAYE.

Question 26

What are the three traditional tests to determine employment status?

Answer 26

1. the control test
2. the integration/organisation test
3. the multiple/economic reality test

Question 27

What does the control test examine?

Answer 27

The degree of control exercised by the employer over how, when, and where the worker performs their job. (oldest test)

Question 28

What does the integration/organisation test examine?

Answer 28

Whether the worker is an integral part of the business.

Question 29

Why was the integration/organisation test introduced?

Answer 29

For skilled professionals (like doctors) who were considered an essential part of the organisation.

Question 30

What does the multiple/economic reality test examine?

Answer 30

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.

Question 31

What is mutual obligation?

Answer 31

The obligation to offer the workers work, or the workers to accept any work they are offered.

Question 32

What does the application of tests to zero-hours contracts reveal about mutuality of obligation?

Answer 32

There is no mutuality of obligation because the employer is not obliged to offer work, and the employee is not obliged to accept work.

Question 33

What does the term “worker” include under ERA 1996?

Answer 33

Both employees and other individuals performing personal work or services, other than for clients or customers of their profession or business.

Question 34

What is a key factor in determining whether someone is a worker?

Answer 34

Whether the individual agrees to perform services personally.

Question 35

What was the focus of the court in Uber BV v Aslam [2021] regarding worker status?

Answer 35

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.

Question 36

Why does it matter whether someone’s employment status is employee or not?

Answer 36

Implied statutory rights will mainly apply to employees, but not to workers.

Question 37

What are some implied statutory rights that the employee will get, but mostly not workers or independent contractors?

Answer 37

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)

Question 38

Who is entitled to a minimum wage or living wage?

Answer 38

Employees and workers under 25, but not independent contractors.

Question 39

Who must be automatically enrolled in a pension scheme?

Answer 39

Employees and also workers, if they earn enough to qualify.

Question 40

What rights do the Working Time Regulations 1998 provide?

Answer 40

Rights to maximum weekly working hours, rest breaks, and annual holiday for both employees and other workers.

Question 41

Who is entitled to paid maternity leave and family-friendly rights?

Answer 41

Only employees, not other workers such as those under zero-hours contracts.

Question 42

Who has the right to statutory sick pay?

Answer 42

Available to employees and workers if their earnings are subject to National Insurance contributions.

Question 43

Who is covered by the protection under Health and Safety at Work Act 1974?

Answer 43

Both employees and non-employees, but the duty is more stringent for employees.

Question 44

What does TUPE 2006 protect?

Answer 44

Rights of employees when their employer transfers its business to a new owner, potentially including workers who are not employees.

Question 45

What does the ERA 1996 provide regarding competition and zero-hour contracts?

Answer 45

It prohibits zero-hours contracts from preventing workers or employees from working for competitors.

Question 46

When are employers required to deduct tax and National Insurance?

Answer 46

From an individual’s earnings under PAYE only if the individual is an employee.

Question 47

What is vicarious liability?

Answer 47

Legal responsibility for another person’s actions if they are legally liable for any harm done by that person.

Question 48

When is an employer vicariously liable?

Answer 48

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.