C Employment Law

Question 1

Distinguish between employees and the self employed

Answer 1

The control test:

Employees are subject to control by their employer as to how, where and when they work

The integration test:

Someone is regarded as an employee if their work is an integral part of the business and not merely an accessory to it - difficult to apply solely

Economic reality test (or multiple test) the court takes all surrounding factors into account:

Factors include control, provision of their equipment, financial risk and responsibility, method of payment, hours worked and mutuality of obligations

Importance of the distinction:

Employee receives statutory protection
There are implied terms in a contract of employment
Upon insolvency of employer, an employee is a preferential creditor whereas someone self employed is an unsecured creditor
State benefits e.g. sick pay
Tax under paye system for employees, independent contractors taxed under trading income provisions

Question 2

The nature of a contract of employment and what common law/statutory duties are related

Answer 2

Contracts of employment consist of:

Express terms which are those agreed by parties themselves written or oral

Employment rights act 1996 requires an employer to provide any worker with a written statement upon employment e.g. business name, employee name/start date, job title, pay etc

Any change must be notified by written statement within 1 month, it is only a contract once both parties agree

Terms implied by the courts:

Duties of the employee
Duties to obey lawful and reasonable orders
Duty of good faith
On the employers half, similar duties such as remuneration, safe system of work, cooperation, provision of a reference

Terms implied by statute:

ERA 1996 gives employees the right to not be unfairly dismissed, redundancy payment and minimum notice period
Working time regulations 1998 limit the hours of work to an average of 48 a week and also right to paid leave
Employment act 2002 gives parents of children under 17 the right to request flexible working arrangements
Equality act 2010 deals with protection people from discrimination
National minimum wage act 1998 imposes minimum levels of pay

Question 3

Explain termination of employment by notice

Answer 3

If a period of notice is not agreed expressly the ERA 1996 imposes 1 week min period, then if employed over 2 year it is 1 week per complete year, up to 12+ years where the max is 12 weeks

An employee with at least 4 weeks employment must give their employer at least one weeks notice of them terminating the contract

Question 4

Distinguish between summary and constructive dismissal

Answer 4

Summary dismissal is dismissal without notice:

Usual wrongful dismissal unless the employee waives their rights or accepts payment in lieu, or repudiates the contract themselves or is in fundamental break e.g. refusal to obey orders

Remedies may sue in the county court or high court for damages, limitation period is 6 years

Constructive dismissal:

Normally employees who resign dont make a claim for unfair dismissal, however ERA 1996 covers situations where the employee terminates the contract with or without notice where they are entitled to terminate it without notice by reason of the employers conduct

Question 5

Unfair dismissal procedure and criteria

Answer 5

Unfair dismissal is a statutory right under the employment rights act 1996, only employees can bring an action for unfair dismissal

Criteria for unfair dismissal:

Must be continuously employed for 2 years
Must serve grievance notice on employer
Claim to employment tribunal within 3 months of dismissal
Employee must prove they were dismissed
Employer must prove reason for dismissal for one or more of five statutory fair reasons
Tribunal must be satisfied that the employer has acted reasonably
If found unfair entitled to reinstatement, re engagement or compensation

Question 6

Redundancy definition and procedure

Answer 6

Redundancy:

The employer has ceased or intends to, for the purposes for which the employee is hired

The requirements of the business to carry out work of a particular kind has ceased or diminished

Redundancy consultation process:

If you fail to consult employees dismissal will almost certainly be unfair
If you plan to make 20 or more employees redundant within a 90 day period you must notify the department for business and consult with workplace representatives such as trade unions or employee reps

Redundancy pay:

Calculated in the same way as the basic award for unfair dismissal