Chapter 11 - Employment, data protection and intellectual property law Flashcards
What is the difference between an employee and an independent contractor?
An employee is someone who is employed under a contract of service, ie, a contract of employment, which can be express or implied and oral or in writing.
An independent contractor is someone who works under a contract for services and is also described as ‘self-employed’.
What are three essential elements that must be present in order for a contract of service to exist?
- Personal service
- Control
- Mutuality in obligations
What additional factors are used to determine whether there is a contract of service?
- Personal performance
- Degree of control
- Mutuality of obligations
- Contractual provisions
- Tools and equipment
- Uniform
- Employer’s support staff
- Payment of tax, NI
- Financial responsibility
- Sole ‘employer’
- Length of service
Give some practical reasons why the distinction between a contract of service (employed) and a contract for services (self-employed) is important.
- Wrongful dismissal
- Employment protection
- Insolvency
- Implied terms
- Tortious acts
- Taxation
- VAT
- Social security
By when must an employer provide a written statement of particulars when there is no written contract of employment?
Where there is no written contract covering them, an employer must provide a written statement of prescribed particulars within two months of the commencement of the employment.
What should a written statement of prescribed particulars of employment include?
- Names of employer and employee
- Date employment begun
- Whether any service with a previous employer forms part of the employee’s continuous period of employment.
- Pay
- Hours of work
- Title of the job or brief job description
- Holiday and holiday pay entitlement
- Sick leave and sick pay
- Pensions and pension schemes
- Notice period
- Disciplinary procedures
What are employees’ implied duties?
- Duty of faithful service
- To obey lawful and reasonable orders
- Not to misuse confidential information
- To exercise reasonable care and skill
- Personal service
- Trust and confidence
What are employers’ implied duties?
- To pay reasonable remuneration
- To indemnify employees
- Health and safety
- To provide work
- To provide accurate reference (where one is provided)
- Not to disclose confidential information
- To maintain mutual trust and confidence
What are the statutory minimum notice for various lengths of continuous employment?
>= 1 month but < 2 years: Not less than 1 week >= 2 years but < 12 years: Not less than 1 week per year of continuous employment >= 12 years: Not less than 12 weeks
What is the pay that an employee is entitled to during a period of notice?
During the period of notice an employee is entitled to pay at a rate not less than the average of their earnings over the previous 12 weeks.
What categories of employees are excluded from the statutory unfair dismissal code?
Persons employed to work outside Great Britain and employees dismissed while taking unofficial strike or other industrial action.
In order to pursue a claim for unfair dismissal, for how long must the employee have been continuously employed?
The employee must have been continuously employed for at least two years, whether full-time or part-time, with the same (or an associated) employer.
What is wrongful dismissal?
Wrongful dismissal is a common law action that applies where an employer dismisses an employee in breach of contract.
What is the usual remedy for wrongful dismissal?
The usual remedy for wrongful dismissal is damages but an injunction or declaration may be awarded.
Within what timeframe can an action for wrongful dismissal be brought?
Within six years of the breach.
