Chapter 12 Flashcards
When is someone employed rather than self employed?
Employed = under contract of services under common law
Self-employed = under contract for services
How do you define someone’s employment status?
There is not one rule in determining someone’s status, look at remuneration / who has control
Name the factors considered in the irreducible minima requirements - all have to be present in a relationship for it to be contract of service
- Mutuality of obligation - one party work & other party pays (important to determine status of casual workers)
- Wage - employee must pay the employee
- Personal service - Where the worked has a right in the contract to substitute another’s service for their own
- Control in a sufficient degree - looks at extend to which employer has control over individuals’ activities
What is the economic reality (Multiple) test?
A multiple test which considers 2 main factors:
- How far the person is integrated into the organisation
- Whether the person is in business on their own account
List some of the attributes of self employment
- Provision of equipment - SE = more likely to supply to self
- Basis of payment - SE = usually submits invoice
- Financial risk - SE = more likely to risk own money
- Opportunity to profit from effectual management
- Business organisation - SE more likely to set up business-like organisation of their own
- Number and length of engagements
- Name of the contract and position of parties
The terms of an employee-employer relationship are derived from a number of sources - what are they?
- There terms of the contract
- Correspondance
- Staff handbooks
- Collective bargaining agreements
- Articles of association
- Any custom and practice applicable
- Employment protection
List the duties of an employee
- Duty of faithful service
- Obey the employer’s instructions
- Duty to perform with care, skill and reasonable competence
- Duty to account for all money & property received
- Duty of personal service
- Do not use for personal benefit the employer’s trade secrets / confidential info
List the duties of the employer
- Indemnify the employee against expenses incurred in employment
- Pay reasonable remuneration
- To provide work
- Take care of employee’s health and safety
- To uphold relationship of trust and confidence
An employer by S.1 Employments Rights Act 1996 has to give and employee a written statement setting out the terms, list what the statement must include
- Names of employer & employee
- Dates
- Remuneration
- Hours of work & holiday
- Where health and safety info is found
- Notice required
- Period of employment
- Job title
- Place of work
- Any collective agreements that affect the terms
- Details of currency for remuneration
Who is held liable for wrongful acts of employees?
The employer
List some of the things that distinguish employees from self-employed individuals
Employees have: • Pension scheme • Social security benefits • To pay income tax & Class 1 NICs • Enjoy rights under employment protection legislation • Employees are preferential creditors
List the ways a contract of an employment can end without a breach of its terms
- By Notice
- Otherwise in accordance of its terms (employer makes a payment in lieu of notice)
- By passage of time - FTC expires
- By Mutual agreement
- By frustration (impossible to perform)
- Summary dismissal with cause
Name the ways in which as contract of employment can end by breach
- Summary dismissal without cause (unjustifiable dismisses)
- Constructive dismissal (employee forced to resign)
Wrongful dismissal = leads to damages for employee
Describe the difference between wrongful dismissal and unfair dismissal?
Wrongful dismissal where employment ends due to breach in contract by their employer
Unfair dismissal occurs where either:
• Procedure for dismissal wasn’t fair
• Reason for dismissal isn’t fair (pregnancy etc)
List some of the fair and unfair reasons for dismissal
Fair: ability / Conduct / redundancy
Unfair: Discrimination / trade union membership / jury service / pregnancy
What are the 3 awards for unfair dismissal?
- Re-instatement in same job
- Re-engagement in another suitable job
- Compensation (basic / compensatory / punitive additional award)
Compensation isn’t taxed
When must a statutory redundancy payment be made?
When the employee has been working for company continuously for two or more years
Name the 3 categories of office-holder
- An office holder whose rights and duties are defined by the office
- An office-holder who has the title “office-holder” but holds no office (just an employee)
- An office-holder who an also an employee with a contract of service
