Chapter 12 - Employment Law Flashcards
What is the difference between an employee and a self-employed person in terms of contracts?
An employee will have a ‘contract of service,’ while a self-employed person will have a ‘contract for services.’
Why is employee status important?
Employee status determines the rights and responsibilities of both the employee and the employer. It is crucial in cases such as tax or tort law.
What are the three key factors that are essential for determining employee status?
1) Can the individual delegate or subcontract? 2) Control: Does the employer dictate how the job is done? 3) Mutuality of obligations: Is there a reciprocal obligation between the employer and employee?
What does the ability to delegate or subcontract indicate about employment status?
An employee has a duty of personal service and cannot delegate tasks, whereas the ability to delegate often indicates self-employment.
What does ‘control’ mean in the context of employee status?
‘Control’ refers to the employer’s ability to dictate how and when the individual performs their job, indicating an employment relationship.
What does ‘mutuality of obligations’ indicate about employee status?
If there is an obligation on the employer to provide work and on the employee to perform it, this indicates an employment relationship.
How do contractual provisions help determine employee status?
The terms of the contract, such as sick pay and holiday pay, can provide evidence of an employment relationship but are not conclusive.
What does the provision of tools and equipment indicate about employment status?
A self-employed person is more likely to provide their own tools and equipment, while employees rely on the employer.
What role does wearing a uniform play in determining employee status?
An employee is more likely to wear a uniform provided by the employer, indicating integration into the organization.
How does payment of tax and National Insurance (NI) indicate employee status?
Deduction of tax and NI directly from wages indicates an employment relationship, whereas self-employed individuals manage their own tax and NI.
What does financial risk indicate about employee status?
Individuals who take financial risks and share profits are more likely to be considered self-employed.
How does the number of employments affect employee status?
A person working for more than one organization is more likely to be considered self-employed.
How does the length of service impact employee status?
The longer the relationship between the worker and the employer, the more likely it is to indicate an employment relationship.
What are the implications of wrongful dismissal for employees and self-employed individuals?
Employees can claim wrongful dismissal, whereas self-employed individuals cannot as they lack employment contracts.
What employment protections are available to employees compared to self-employed individuals?
Employees are entitled to minimum notice periods, statutory redundancy pay, unfair dismissal protection, and health and safety protections. Self-employed individuals are subject to statutory protections for workers, including working time and health and safety obligations.
What are the insolvency implications for employees and self-employed individuals?
Employees have preferential creditor rights for outstanding salary and redundancy payments, whereas self-employed individuals do not have preferential rights.
What are the implied terms in employment contracts versus contracts for services?
Employment contracts include implied rights and duties under common law and statute, such as mutual trust and confidence. Contracts for services typically do not include these implied rights and duties.
Who is liable for tortious acts under employment versus self-employment?
Employers are vicariously liable for the tortious acts of employees committed in the course of employment. For self-employed individuals, liability is limited unless strict liability applies.
How does taxation differ between employees and self-employed individuals?
Employees are taxed via PAYE from their salary, while self-employed individuals are taxed under self-assessment and are directly responsible for their tax payments.
How does VAT differ between employees and self-employed individuals?
Employees are not subject to VAT, whereas self-employed individuals may need to register for and charge VAT.
What are the social security contributions for employees versus self-employed individuals?
Employers pay secondary Class 1 contributions, and employees pay primary Class 1 contributions. Self-employed individuals pay Class 2 and Class 4 contributions.
What is the ‘worker’ category in UK employment law?
Workers fall between employees and independent contractors. They have some protections like the right to minimum wage and paid leave, but not full employment protections, such as protection from unfair dismissal.
What is an example of a worker in UK employment law?
Uber drivers, as per the case Uber BV v Aslam and others (2021), are considered workers under UK employment law.
What is an employment contract?
An employment contract is an agreement between the employer and employee that creates legal relations. It may be written or oral and typically includes terms such as pay, hours, and place of work.
What happens when changes are made to the terms of an employment contract?
Any changes to the terms of an employment contract are considered amendments to the existing contract. These changes typically require the consent of both parties unless new legislation requires it or an express term in the contract allows for variation.
What are express terms that allow for variation in an employment contract?
Express terms, such as a ‘mobility clause,’ may allow an employer to require an employee to work at a different location. Employers must exercise these powers reasonably, respecting terms of trust and fairness.
What did the case United Bank Ltd v Akhtar 1989 establish about implied terms?
The case established that employers must exercise rights under express provisions reasonably, including providing reasonable notice. In this case, the employer’s unreasonable actions led to a successful constructive dismissal claim.
What is the principal written statement required for employees?
The principal statement includes: names of employer and employee, job title, pay details, working hours, holiday entitlement, place of work, probation conditions, and other mandatory terms such as sick pay and notice periods.
What details must be included in the wider written statement?
The wider statement, to be provided within 2 months, includes: pensions, non-compulsory training rights, and details of grievance or disciplinary procedures.
What recourse does an employee have if a written statement is not provided?
An employee may raise a grievance or apply to the employment tribunal to declare the terms. The tribunal may offer additional compensation if the absence of a statement has caused issues.
What is the duty of faithful service (fidelity)?
Employees must not work for a competitor or act in ways that conflict with their employer’s interests. For example, accepting personal commissions from suppliers without employer consent is a breach of fidelity.
What does the duty to obey lawful and reasonable orders entail?
Employees must obey their employer’s reasonable instructions unless the orders: 1) Require unlawful acts, 2) Expose the employee to personal danger (not inherent in their job), or 3) Demand actions outside their contract.
What is the duty not to misuse confidential information?
Employees must not misuse confidential information obtained during employment. This duty often continues after employment ends. Intellectual property created during employment usually belongs to the employer.
What does the duty to exercise reasonable care and skill mean?
Employees must demonstrate reasonable competence, care, and skill in their work, consistent with the skills and experience they claim to have.
What is the duty of personal service?
Employment contracts are personal, meaning employees cannot delegate their duties to others without the employer’s express or implied consent.
What does the duty of trust and confidence involve?
This mutual obligation requires respect and consideration from both employer and employee. Employees must not make unjustifiable complaints or false accusations about their employer.
What is the employer’s duty to pay remuneration?
The employer must pay the rate fixed by the contract or, in the absence of work, pay nothing during a lay-off, subject to any express provisions.
What does the employer’s duty to indemnify employees entail?
The employer must indemnify employees against expenses and losses incurred during the course of employment.
What are the three-fold obligations under the employer’s duty to ensure health and safety?
1) Provide safe plant and appliances, 2) Provide a safe system of work, 3) Ensure reasonably competent fellow employees.
What is the employer’s duty to provide work?
The employer is generally not liable for failing to provide work as long as wages are paid. Liability may arise if work is tied to commissions.
What is the duty to provide accurate references?
While not obligated to provide references, employers must exercise reasonable care to ensure accuracy and fairness in any provided references. Employers cannot include undisclosed information harmful to the employee.
What is the employer’s duty regarding confidential information?
The employer must not disclose confidential employee information to third parties without the employee’s consent.
What does the duty to maintain mutual trust and confidence require?
Employers must treat employees with due respect and consideration to maintain trust and confidence.
