Chapter 6 The Law of Employment Flashcards
What are the rules around employment contracts?
> Oral or written
Written particulars of main terms supplied to employee within 2 months of commencing employment
If not => employee go to the employment tribunal for a declaration of what terms should be
What are the written particulars that should be included in main terms of contract?
- Names of employee and employer
- Date of commencement
- Job title
- Notice period
- Pay rate and pay intervals
- Hours of work, inc normal working hours
- Holidays and holiday pay
- Arrangements for sick leave, sick pay
- Disciplinary and grievance procedures
- Social media policy e.g. facebook, twitter etc
What are the common law duties of the employer?
Overriding duty of mutual trust and confidence, including:
- Taking reasonable care of employees
- Provide a safe system of working
- Pay employees
- Indemnify employee against expenses and losses incurred in course of employment
- Health and safety, select fit and competent fellow workers
- Provide work where employee paid by reference
NO DUTY TO PROTECT EMPLOYEE PROPERTY, PROVIDE REFERENCES, PROVIDE SMOKING FACILITIES OR FLEXIBLE WORKING
What are the common law duties of an employee?
Duty of faithful service including:
- Not to compete with employer
- Competence to do the job
- Obedience
- Account for money and property received during course of employment
- Reasonable skill and care in job
- Not delegate duties without permission
What are the statutory duties of pay?
- minimum wage
- itemised payslip
- statutory sick pay, but not sick pay from employer’s own funds
- statutory maternity pay (SMP) and paternity pay
- SMP if 26 weeks service by 15th week before expected confinement
What are the statutory duties for hours of work?
- Working time regulations, 48 hour maximum over a 17-week average - employee can opt out
- Minimum 28 days’ holiday, mutually convenient time
- Minimum 20 minutes rest in 6-hour plus shift, 11 consecutive hours’ rest in 24 hours, 24 hours’ in seven days
- Minimum 20 mins rest in 6 hour plus shift
- Paid time off for:
- ante-natal care
- trade union official performing duties
- maternity leave
- paternity leave - can request flexible working arrangements - not unreasonably refused
What does the Health and Safety at Work Act 1974 state?
States duties of employers should ensure health & safety of employees:
- Statement of policy
- Insure against risks
- Assess risk
- Adequate info, training
- Safe systems, equipment and place of work
- Adequate access
What can health and safety inspector issues?
- Improvement orders (work can continue)
- Prohibition orders (work must cease)
- Criminal Action (but not civil actions)
What is discrimination in law of employment?
discriminate on basis of age, sex, gender reassignment, marriage, race, religion, belief, disability
Equality Act 2010 applies
What is discrimination in law of employment?
discriminate on basis of age, sex, gender reassignment, marriage, race, religion, belief, disability
Equality Act 2010 applies
What is the termination of contract?
Minimum notice to employee one week for every year of service up to 12 yrs. Min employer is one week irrespective of period of employment.
Most employment contracts terminated without breach, e.g. by proper notice
What is wrongful dismissal in the termination of employment with breach?
No minimum employment period.
If employer breaches contract => dismissing employee without sufficient notice.
=> Damages calculated by reference to difference between actual and contractual notice period.
What is wrongful dismissal in the termination of employment with breach?
No minimum employment period.
If employer breaches contract => dismissing employee without sufficient notice.
=> Damages calculated by reference to difference between actual and contractual notice period.
What is unfair dismissal in termination of employment with breach?
- generally min 24 months employment
- avoid claim for unfair dismissal - employer must act reasonably.
- reasonableness includes giving reasons for dismissal
- fairness depend on size and resources of employer
What are some fo the fair reasons for dismissal?
- lack of capability
- misconduct
- theft
- bad behaviour
- redundancy
- statutory restriction on employer or employee
What are some examples of automatically unfair reasons for dismissal?
> compulsory retirement > attending jury service > reasons related to trade union membership > taking steps to avert danger > pregnancy > conviction now spent > Whistleblowing > discrimination No minimum employment period if dismissed for automatically unfair reason
What things are excluded from the protection of unfair dismissal legislation?
- Employed < 24 months
- Those who fail to apply to Tribunal within 3 months of dismissal
- Those working outside UK
- Unofficial strikers
What are the remedies for unfair dismissal?
- Conciliation - employmee must notify ACAS => assess whether matter can be resolved using early conciliation
- Reinstatement - taking employees back on identical terms as he was those previously employed on
- Re-engagement - taking employee back but in different capacity
- Compensation
a) Basic Award = statutory defined maximum linked to age and service. Treated as statutory redundancy
b) Compensatory award = based on actual net earnings
c) Punitive additional award = available if employer fails to comply with order of reinstatement or re-engagement
How is a dismissal classified as a redundancy?
If it is:
- Employer ceased or intends to cease carrying on business
- Requirement of business for employees to carry on the work done by the employee have ceased or diminished
What are the 3 main reasons for redundancy?
- Place of Work - if employee’s contract requires them to work at places other than their present place of employment and employer relies on this then NOT classified as redundancy
- Job Loss - if A’s job is abolished, A is moved into B’s job and B is dismissed, that is a case for redundancy although B’s job continues. If reorganise business and alters methods so same work done by different means which are beyond capacity of employee, it is not a case for redundancy.
- Alternative employment - offer a redundant employee alternative employment for the future. If unreasonably refuses => lose their entitlement to redundancy pay
- Employee is entitled to a four-week trial period in the alternative employment.
How must an employee qualify for redundancy payment?
- Having been continuously employed for AT LEAST TWO YEARS since becoming 18 years old
- Having been dismissed
- Reason for dismissal being redundancy
Pay is calc with reference to age, weekly pay and length of service
How are disputes dealt with in regards to redundancy?
- Heard by employment tribunal
- appeals made to Employment Appeal Tribunal
- Employer expected to act reasonably and follow ACAS code of practice on discipline and grievance
What is constructive dismissal?
Sometimes an employee may feel they have no option but to resign because of their treatment by their employer.
= Constructive Dismissal
What is a breach by employer in constructive dismissal?
Employer commits a serious breach of employment contract and employee leaves as a result of the breach => repudiates vital term of contract.
=> employer liable and employee can claim unfair dismissal, showing that:
a) breach was serious
b) employee left because of the breach
c) employee has not waived the breach
Failure to promote employee is NOT constructive dismissal
