CH12 Employment law Flashcards
- Identify who is an employee and the main legal consequences of employment status - Identify the key features of employment contracts and recognise circumstances in which an employment contract may be terminated and the consequences arising - Identify when dismissal constitutes a wrongful or unfair dismissal - Identify the circumstances where an employee can claim a statutory redundancy payment - Identify employers' obligations under social security law - Identify the responsibilities
What are the main three key factors in determining employee status?
- Can the individual delegate or subcontract?
- Control
- Mutuality of obligations
Can an EE claim for wrongful dismissal?
Can self-employed?
Yes
No
What does an employment contract need to be valid? Same as any other contract.
Agreement
Consideration
Intention to create legal relations
Can an employment contract be written or oral?
Yes, either.
Can an employment contract be changed?
Only if what?
Unless what and what?
Yes but only if both parties agree.
Unless a result of new legislation or an express term in the contract gives rights of variation (e.g. saying you could be asked to work anywhere in the UK).
If you do not have a written employment contract, what must your employer give you on or before the start date?
Written statement of particulars.
What is a statement of written particulars broken down into?
Principal statement and wider written statement
Is a written statement of particulars a contract?
No
What is included in the wider written statement of a written statement of particulars?
Must be provided within what time frame?
Pensions and pension schemes
Non compulsory training
Disciplinary and grievance procedures
Two months
What terms are implied into an employee’s employment contract? Six things.
Service
Orders
Confidential
Reasonable
Personal
Trust
- Duty of faithful service
- To obey lawful and reasonable orders
- Not to misuse confidential information
- Exercise reasonable care and skill (including what you professed to have)
- Personal service
- Trust and confidence
What terms are implied into an employer’s employment contract? Six things.
Pay
Indemnify
H&S
Provide
Ref
Confidential
Trust
Sustainability
- To pay remuneration (what was agreed or a reasonable sum)
- To indemnify employees
- Health and safety
- To provide work (means continuing to pay you even if no work available)
- To provide an accurate reference (where one is provided)
- Not disclose confidential information
- Mutual trust and confidence
- To observe sustainability regulations
What can a breach of the Health and Safety at Work Act 1974 result in?
Unlimited fine and/or
2 years imprisonment
How can an employer avoid liability for discrimination?
If they can prove that their actions were a proportionate means of meeting a legitimate aim.
In relation to notice periods, what is the statutory minimum notice period if your length of continuous employment is >=1 month but < 2 years?
Not less than 1 week
In relation to notice periods, what is the statutory minimum notice period if your length of continuous employment is >=2 years but <12 years?
Not less than 1 week per year of continuous employment
In relation to notice periods, what is the statutory minimum notice period if your length of continuous employment is >=12 years?
Not less than 12 weeks
What are the offences under the Modern Slavery Act 2015?
- Holding another person in slavery or servitude
- Requiring a person to perform compulsory or forced labour
- Arranging/facilitating a person’s travel with a view to exploiting them
What are the defences for victims of modern slavery in respect to being compelled to commit crimes?
- Over 18
- Compelled to commit
- Compulsion attributable to slavery/exploitation
- Reasonable person with same characteristics would have done the same
Which organisations need to publish an annual modern slavery statement?
All commercial organisations
Supplying goods or services
Annual turnover of £36 mil
Operates in whole or part in the UK
What must a statement of modern slavery include?
- Steps taken to ensure it is not happening in business or supply chains OR
- Statement that it has not taken steps
What should a statement of modern slavery include?
- Structure of supply chains
- Policies
- Due diligence
- Parts of business/supply chains at risk
- Effectiveness
- Training
What Act is unfair dismissal covered by?
The Employment Rights Act 2008
Can an employee bring a claim before a court or tribunal?
Tribunal
What are the steps you must follow to bring a case of unfair dismissal?
- Show you are a qualifying employee
- Show you have been dismissed
- Employer must show that they dismissed for a fair reason
- Employer must show they behaved reasonably and followed procedures
What four things make you NOT qualify as an employee in terms of unfair dismissal?
- Work outside GB
- Dismissed while on unofficial strike
- Not employed continuously for 2 years or more
- Claim not made within 3 months of termination
How can you show that you have been dismissed according to the statute in unfair dismissal?
- Non-renewal of a contract for a fixed term or specific task
- Termination by employer with or without notice
- Constructive dismissal
What is constructive dismissal?
Where something the employer does makes the employee resign. Employer breaches contract in a big way.
What are the requirements for constructive dismissal to have occurred?
- Employer has committed serious breach
- Employee left because of breach
- Employee has not waived breach
What are examples of breaches of contract that have led to claims of constructive dismissal?
- Reduction in pay
- Complete change in nature of job
- Failure to provide suitable working environment
- Refusal to advance holiday pay was NOT enough
How can an employer show that they have dismissed an employee for a fair reason? I.e. what are examples of fair reasons?
- Capability/qualification
- Misconduct
- Redundancy
- Statutory restriction
- Other substantial reason
If employee is dismissed for an automatically unfair reason, will they be protected by the act even if they have not been employed for the minimum period?
Yes
What are the remedies for unfair dismissal?
- Reinstatement - old job back
- Re-engagement - new job - equivalent role
- Compensation in 3 categories:
- Basic award
- Compensatory award
- Additional award
What is wrongful dismissal?
Where the employer dismisses an employee in breach of an express term in their contract
What are the requirements for bringing a charge of wrongful dismissal?
Damages
Time limit
Minimum period of employment
- No maximum amount of damages
- Time limit to bring claim is 6 years from date of breach
- No minimum period of employment
When is summary dismissal allowed?
- Wilful refusal to obey orders
- Gross misconduct
- Dishonesty in position of trust
- Gross/persistent negligence
- Breach of an express term where employee made aware that breach will not be tolerated
What are the remedies for wrongful dismissal?
Damages
What are damages for wrongful dismissal supposed to do?
Put you back in the position you would have been in had the breach not occurred. Amount you would have earned if the wrongful dismissal had not occurred.
Does an employee have a duty to mitigate their losses in a wrongful dismissal case?
Yes
Can you have an injunction or a declaration of what the employee’s rights are as remedies for wrongful dismissal (equitable remedies)?
Yes
When will a dismissal be treated as redundancy?
- Employer ceases to trade
- Place changes
- Type of work ceases (numerical)
How can an employee meet the conditions for redundancy?
Continuous employment
EE
Within?
- Employed continuously for 2 years
- Must be an employee (not self employed or partner)
- Must bring claim within 6 months from date of termination
How can an employee show that they have been dismissed by reason of redundancy?
- Being laid off (earns nothing)
- Being kept on short time (earns less than half normal pay) for 4 or more consecutive weeks or 6 weeks in a period of 13 weeks
When will an employee not be entitled to redundancy pay?
- Guilty of misconduct
- Refuses offer to renew contract
- Unreasonably refuses offer of alternative employment
