Employement Law

Question 1

Types of working relationship

Answer 1

Employee: works under an employer. Gets salary from employer
Self employed: works under contract of service. Get commission or fees from the person giving contract.

Question 2

Tests to determine employment

Answer 2

Control test
Integration test
The economic reality test or multiple test

Question 3

Control test

Answer 3

Employer tells employee how, where and when to do work. This test is not appropriate to skilled employees like specialist working in a hospital

Question 4

Integration test

Answer 4

Work is integral part of business; employee
Not integral part; self employed
Cannot be applied as sole criterion to see whether self employed or not

Question 5

The economic reality/multiple test

Answer 5

Takes following things into account
Control, provision of own equipment, hires his own helpers, financial risk, investments, regular method of payment, working hours, mutuality of obligations

Question 6

Why to bifurcate bt employees and self employed becz

Answer 6

Statutory protection; kaam dena hoga, notice period etc
Taxation; employee ki cut hoti hai salary me se
Insolvency of employer; employee preferential creditor then self emp
Certain state benefits
Implied terms in contract of employment; manni paregi as employee
Employer liable for the acts of employee but not self employed

Question 7

Contract of employment (expresd term)

Answer 7

Terms which are agreed between employer and employee (can be oral or written)

Question 8

Employment rights act 1996

Answer 8

Mandatory written statement
Within 2 months of commencement

Question 9

There are 2 statements

Answer 9

Principal statement
Written statement

Question 10

Principal statement

Answer 10

Employee name, job title, description of work, start date
Business name
Previous job details
How much salary and date of payment
Working hours
Holiday entitlement
Place of working and relocation details

Question 11

Written statement

Answer 11

End date of the fixed term
Notice periods
Collective agreements
Pension
Where to go with grievances
How to complain about dismissal
Any change in any statement must be notified within one month
Both parties (employer/employee) shud agree to the terms

Question 12

Terms implied by court

Answer 12

Employee:
Duty to obey lawful and reasonable orders
Duty of mutual cooperation or duty to perform in a reasonable manner

Duty to exercise reasonable care and skills; single act of negligence if employee doesnt justify dismissal
Employee has to indemnify employer for any loss suffered because of him

Duty of good faith - duty to give honest and faithful service; employee shud not work for his own in between working hours
Employee should not misuse employers properties
Employee shud not disclose trade secrets of employer to third party

Duty to render personal services; kaam khud karna delegate nh if not permitted

Employer:
Duty to pay reasonable remuneration
Duty to indemnify the employee
Duty to provide a safe system of work
Duty to give notice of termination of employment
Duty of mutual coooeratio
Duty of work; sufficient work must be provided
Provision of a reference

Question 13

Terms implied by statute

Answer 13

ERA 1996
Working hrs regulations 1998
Employment act 2002
Equality Act 2010

Question 14

Employment rights act 1996

Answer 14

Right not be unfairly dismissed
Right to a redundancy payment if made redundant
Right to a minimum period of notice to terminate the contract

Question 15

Working time regulations 1998

Answer 15

Working hours 48 a week
Fours week paid leave
One day off each week

Question 16

Employemnt act2002

Answer 16

Parent has right to request flexible working arrangements (disabled or under seventeen)

Question 17

Equality act 2010

Answer 17

Equality clause shud be implied

Protecting people from discrimination in the workplace. Recognises protected characteristics

Question 18

National minimum wage act 1998

Answer 18

Impose minimum level of pay

Question 19

Minimum notice period

Answer 19

If not expressly agreed. The ERA 1996 imposes below minimum period
Notice by employer - 1month -2 years - 1 week moticr period
2-12 saal - 1 week per complete year
12+ yrs - 12 weeks

Notice by employee at least 4 weeks continuous employment - 1 week

Question 20

Wrongful dismissal

Answer 20

Dismissal without proper notice
In between the fixed term
Claim available to both employee and self employed

Question 21

Summary dismissal

Answer 21

Dismissal without notice
Khare khare nikal dena
It is not wrongful if employee accept payment in lieu of notice
Repudiates the contact (does not follow the orders)

Question 22

Remedies for wrongful dismissal

Answer 22

Sue county court or high court for damages (limit period is 6 years)
Specifically for employee - bring claim to employment tribunal - within 3 months of dismissal and cliam is not more than 25000 pounds

Question 23

Unfair dismissal

Answer 23

Terminates the contract without justifiable reason (mujhe kyun nikala)

Question 24

Constructive dismissal

Answer 24

Employee has to leave a job due to any wrong conduct of employee
(Action will be against employer for wrongful dismissal)

Question 25

Fair reasons for dismissal

Answer 25

Capability, qualifications of employee
Conduct of employee
Redundancy
Continue employment would contravene statute
Some other substantial reason

Question 26

Process of unfair dismissal

Answer 26

Must be continuously emp for 2 years. (Maternity leaves hain toh koi baat nh)

Must serve grievance notice on employer

Claim to employment tribunal within 3 months of dismissal

Employee must prove he was dismissed

Employer must prove reason for dismissal. Employer must prove that it is one or more of five statutory fair reasons

Tribunal must be satisfied that employer has acted reasonably

If found unfair, entitlement to reinstatement, re-engagement or compensation

Question 27

Note

Answer 27

An employer can only rely on a given reason for dismissal where he knew of it at the date of the dismissal

Question 28

Types of dismissal

Answer 28

Contract terminated by employer with or without notice (wrongful dismissal)
Fixed term contract expired and not renewed
Constructive dimissal

Question 29

Constructive dismissal

Answer 29

Normally employees resign deprive themselves of right to make claim for redundancy or unfair dismissal.
Here emp terminates the contract with or without notice in circumstances which are such that he or she is entitled to terminate it without notice by reason of employers conduct.

Question 30

Integration test another point

Answer 30

Is the employee so skilled that they cannot be controlled in the performance of their duties

Question 31

Which of the statements is correct regarding wrongful dismissal

Answer 31

Wrongfully dismissed employee is expected to mitigate their loss by seeking alternative employment

Question 32

Remedies to unfair dismissal

Answer 32

Re engagement
Re instatement
Statutory compensation

Question 33

Compensation for 18-21 years of age

Answer 33

Basic 1/2 week salary for each year of service

Compensatory: upto 83682 based on employee’s losses and expenses

Question 34

22-40 years of age

Answer 34

1 week pay for each yr of service

Question 35

22-40 years of age

Answer 35

1 week pay for each yr of service

Question 36

41 plus

Answer 36

1.5 weeks pay for each year of service