Chapter 12 - Employment law

Question 1

What are the catagories of employment recognised under UK law?

Answer 1

• employee
• self-employed (independent contractor)
• worker

Question 2

What is the difference between an employee and an independent contractor? Why is this distinction important?

Answer 2

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’.

The employee status is an important factor in determining the rights and responsibilities of both the employee and the employer

Question 3

What are the key factors that courts will use to determine if an individual is considered an employee or self-employed? (11)

Answer 3

The top 3 factors are non negotioable, if an individual does not meet these 3 conditions then they cannot be considered an employee. If they do meet these conditions then they may be an employee and the courts will use the further conditions to prove this

Question 4

Compare the rights afforded to employees and self-employed independent contractors with regards to the following: i) Wrongful dismissal, ii) Employment protection, iii) Insolvency, iv) Implied terms, v) Tortious acts, vi) Taxation, vii) VAT, viii) Social security

Answer 4

Question 5

Who is considered worker? What rights are afforded to them compared to the other catagories of employment?

Answer 5

Workers fall somewhere between employees and independent contractors

Law gives some protection to workers (eg right to the minimum wage and paid leave) but not all the protections of employment (eg workers do not have the right to be protected from unfair dismissal or the right to claim flexible working)

Question 6

What is an employment contract? Does it need to be written?

Answer 6

Contracts of employment are legally binding agreements which establish the basis of the employment relationship

It may be written or oral

Question 7

What is required in order for an employee contract to be changed? When are these requirements waived?

Answer 7

As the employment contract is a legal contract like any other any changes to the terms of employment amount to an amendment of the existing contract. As a result any change requires the consent of both parties to the contract unless:
* New legislation may result in a change to a term in an employment contract.
* An express term in the contract can give rights of variation, for example where a ‘mobility clause’ allows an employer to require an employee to work at a different location. (In such cases, the employer must exercise the power reasonably since the courts will imply terms of trust and respect which have the effect of overriding a strict application of contractual obligations.)

Question 8

If a written contract is not provided, what must an employer provide to the employee in its absence?

Answer 8

An employer must give the employee a ‘written statement of employment particulars’ made up of:
* the principal statement,
* the wider written statement.

Question 9

What should principal statement of employment include? (11-3)

Answer 9

1. The names of employer and employee
2. Job title or description and start date
3. How much and how often the worker will get paid
4. Hours and days of work
5. Holiday entitlement
6. Where the employer will be working (and whether they may need to relocate)
7. How long the job will last
8. How long the probation period is and what its conditions are
9. Any other benefits
10. Obligatory training and whether or not this is paid by the employer
11. Whether any service with a previous employer forms part of the employee’s continuous period of employment and if so when the previous job started.

• *Sick pay and procedures
• *Other paid leaves (for example maternity and paternity leave)
• *Notice periods

*These items may be given in separate documents but must still be supplied on day one.

Question 10

By when must an employer provide a principle statement when there is no written contract of employment?

Answer 10

The principal statement must be provided on the first day of employment

Question 11

What should the wider written statement of employment include? (3)

Answer 11

• Pensions and pension schemes
• Any other right to non-compulsory training provided by the employer
• Details of disciplinary and grievance procedures (or reference to where they can be found).

Question 12

By when must an employer provide a wider written statement when there is no written contract of employment?

Answer 12

Where there is no written contract covering them, an employer must provide a wider written statement within two months of the commencement of the employment.

Question 13

What are employees’ implied duties? (6)

Answer 13

1. Duty of faithful service
2. To obey lawful and reasonable orders
3. Not to misuse confidential information
4. To exercise reasonable care and skill
5. Personal service
6. Trust and confidence

Question 14

What are employers’ implied duties through common law? (8)

Answer 14

1. To pay reasonable remuneration
2. To indemnify employees
3. Health and safety
4. To provide work
5. To provide accurate reference (where one is provided)
6. Not to disclose confidential information
7. To maintain mutual trust and confidence
8. To observe sustainability regulations

Question 15

EMPLOYERS DUTIES FROM LEGISLATION

Question 16

Define ‘direct discrimination’

Answer 16

Treating people less favourably than others because of a protected characteristic.

Question 17

Define ‘indirect discrimination’

Answer 17

Applying a policy or practice which disadvantages people with a protected characteristic

Question 18

Define ‘harrasment’

Answer 18

Any unwanted conduct related to a relevant protected characteristic.

Question 19

Define ‘victimisation’

Answer 19

Being treated badly because of performing a protected act.

Question 20

What are the protected characteristics? (7)

Answer 20

• Age
• Disability
• Sex (including sexual orientation or gender re-assignment)
• Race (colour, nationality, ethnic/national origins)
• Religion or belief
• Marriage or civil partnership
• Pregnancy or maternity

Question 21

What are the things that must be considered when determining the length of an employees notice period for termination of employment?

Answer 21

• The terms of the employment contract
• Common law requires reasonable notice to be given which will depend upon the employee’s position and the nature of the job
• Statute gives a minimum period of notice based upon the length of service.

Question 22

Outline the minimimum statutory notice periods defined under legislation

Answer 22

Question 23

What is the pay that an employee is entitled to during a period of notice?

Answer 23

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.

Question 24

MODERN SLAVERY

Question 25

What is unfair dismissal?

Answer 25

An act of employment termination made without good reason or contrary to legislation.

Question 26

What are the steps an employee must take to claim unfair dismissal?

Answer 26

• Step 1: The employee must show that he is a qualifying employee
• Step 2: The employee must show that he has been dismissed
• Step 3: The employee must show that the employer did not dismiss the employee for a fair reason
• Step 4: The employee must show that the employer behaved unreasonably and did niot follow procedures

Question 27

What is considered a qualifying employee with regards to claiming for unfair dismissal?

Answer 27

Any employee other than the:
* Persons employed to work outside Great Britain
* Employees dismissed while taking unofficial strike or other industrial action
* Employees who have not been employed continuously for 2 years (excluding time on strike or active service)
* Employees who make a claim not within 3 months of the date of termination

Question 28

What is considered dismissal with regards to claiming for unfair dismissal?

Answer 28

• The non-renewal of a contract for a fixed term or specific task
• A termination by the employer, with or without notice
• A constructive dismissal

Question 29

What is a constructive dismissal?

Answer 29

Constructive dismissal occurs where the employer repudiates some essential term of the contract, for example by the imposition of a complete change in the employee’s duties, and the employee resigns.
To establish constructive dismissal, an employee must show that:
* His employer has committed a serious breach of contract (i.e. reduction in pay, complete change in the nature of the job, failure to provide a suitable working environment)
* He left because of the breach
* He has not ‘waived’ the breach, thereby affirming the contract.

Question 30

What are considered fair reasons for dismissal with regards to claiming for unfair dismissal? (5)

Answer 30

Question 31

What tests are considered in deciding if an employer has behaved reasonably and followed procedure with regards to claiming for unfair dismissal? (3)

Answer 31

Question 32

What types of dismissals afford employees automatic recognition for unfair dismissal? (7)

Answer 32

In certain situations, the law affords more protection to vulnerable employees. Thus, where an employee can show that he has been dismissed for an automatically unfair reason he is regarded as being unfairly dismissed. If an employee is dismissed for an automatically unfair reason he will be protected by the act even if he has not been employed for the minimum employment period.

A dismissal will be automatically unfair if it is for one of the following reasons:
* Pregnancy or pregnancy-related illness
* A spent conviction under the Rehabilitation of Offenders Act 1974
* Trade union membership or activities
* Dismissal on transfer of an undertaking (unless there are ‘economic, technical or organisational reasons’ justifying the dismissal)
* Taking (or proposing to take) steps to protect himself or others where he believes there to be serious and imminent danger
* Seeking to enforce statutory rights (for example relating to the national minimum wage, working time regulations or Sunday working)
* Making a protected disclosure under the Public Interest Disclosure Act 1998.

Question 33

What are the remedies for unfair dismissal? Define each (3-3)

Answer 33

Question 34

What is wrongful dismissal?

Answer 34

Where the employer dismisses the employee in breach of an express or implied term of his employment contract,

Question 35

bring a claim for both wrongful dismissal and unfair dismissal? Why is the former considered more beneficial?

Answer 35

In some cases it may be possible to bring a claim for both wrongful dismissal and unfair dismissal.
There may be benefits to bringing a claim for wrongful dismissal as follows:
* There is no maximum amount of damages
* The time limit for bringing a claim is 6 years from the date of the breach (compared to 3 months for unfair dismissal)
* There is no minimum period of employment (2 years for unfair dismissal)

Question 36

What is summary dismissal? When is it justified? (5)

Answer 36

Summary dismissal is dismissal with no notice or insufficient notice.

It is justified only in limited circumstances:
* The wilful refusal to obey a lawful and reasonable order.
* Gross misconduct, in connection with the business (or outside it if it is sufficiently grave), for example, acceptance of a secret commission, disclosure of confidential information or assault on a fellow employee.
* Dishonesty, where the employee is in a position of trust.
* Gross or persistent negligence (and a lesser degree of neglect may suffice for senior employees) for example where an airline pilot landed his plane in a way that caused alarm among passengers and crew.
* Breach of an express term of the contract or work rules where the employee has been made aware that such a contravention will not be tolerated (for example, airline pilots may be subject to instant dismissal if they are found to be drunk or taking drugs).

Question 37

What are the remedies for wrongful dismissal?

Answer 37

Normal contract law applies here so damages are based on what the employee would have earned if the wrongful dismissal had not occurred. Broadly this is the earnings and benefits which would have been paid if proper notice had been given, or if the breach of contract had not taken place (damages).

In rare cases an application might be made for an injunction to restrain a breach of contract or declaration as to what the employee’s rights are. Both of these remedies are equitable and therefore in the court’s discretion.

Question 38

Following wrongful dismissal, does an employee have a duty to mitigate losses with regards to damages?

Answer 38

The employee has a duty to mitigate his losses by looking for new employment.

Question 39

What is redundancy?

Answer 39

The state of being no longer in employment because there is no more work available.

Question 40

Under what circumstances is a dismissal treated as being caused by redundancy?

Answer 40

Question 41

In the case where an employer is refusing to provide an employee redundancy benefits. what are the steps the employee must take to show that they have been made redundant?

Answer 41

• Step 1: The employee must show that he meets specific criteria of employment
• Step 2: The employee must show that he has been dismissed by reason of redundancy

Question 42

What criteria of employment must an employee meet in order to be eligible for redundancy? (3)

Answer 42

• He must have been employed continuously for 2 years
• He must be an employee (not self-employed or a partner)
• He has bought the claim within 6 months from the date of termination

Question 43

What is consider proof of redundancy that an employee can evidence in order to be eligible for redundancy? (2)

Answer 43

Dismissal here includes being laid off (earns nothing) or kept on short time (earns less than half of normal pay) for 4 or more consecutive weeks or for 6 weeks in a period of 13 weeks.

Question 44

Under what conditions, with regards to the nature of their dismissal, would an individual not qualify for rendundancy pay?

Answer 44

He will not be entitled to a redundancy payment if he:
* Is guilty of misconduct which would justify dismissal
* Refuses an offer to renew his contract
* Unreasonable refuses an offer of alternative employment

Question 45

What is considered reasonable alternative employment?

Answer 45

The alternative employment must be in the same capacity, terms, place and on the same terms and conditions as the original employment and must not be perceived as lower in status.

The employee is entitled to a four week trial period in the new employment. If either party terminates the new contract during the trial period, it is treated as a case of dismissal for redundancy at the expiry date of the previous employment.

Question 46

What is the payout for redundancy?

Answer 46

A basic award, calculated by reference to the employee’s length of service and age, (no link to the loss suffered by the employee)