Employement Law Flashcards
Types of working relationship
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.
Tests to determine employment
Control test
Integration test
The economic reality test or multiple test
Control test
Employer tells employee how, where and when to do work. This test is not appropriate to skilled employees like specialist working in a hospital
Integration test
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
The economic reality/multiple test
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
Why to bifurcate bt employees and self employed becz
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
Contract of employment (expresd term)
Terms which are agreed between employer and employee (can be oral or written)
Employment rights act 1996
Mandatory written statement
Within 2 months of commencement
There are 2 statements
Principal statement
Written statement
Principal statement
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
Written statement
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
Terms implied by court
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
Terms implied by statute
ERA 1996
Working hrs regulations 1998
Employment act 2002
Equality Act 2010
Employment rights act 1996
Right not be unfairly dismissed
Right to a redundancy payment if made redundant
Right to a minimum period of notice to terminate the contract
Working time regulations 1998
Working hours 48 a week
Fours week paid leave
One day off each week
Employemnt act2002
Parent has right to request flexible working arrangements (disabled or under seventeen)
Equality act 2010
Equality clause shud be implied
Protecting people from discrimination in the workplace. Recognises protected characteristics
National minimum wage act 1998
Impose minimum level of pay
Minimum notice period
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
Wrongful dismissal
Dismissal without proper notice
In between the fixed term
Claim available to both employee and self employed
Summary dismissal
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)
Remedies for wrongful dismissal
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
Unfair dismissal
Terminates the contract without justifiable reason (mujhe kyun nikala)
Constructive dismissal
Employee has to leave a job due to any wrong conduct of employee
(Action will be against employer for wrongful dismissal)
Fair reasons for dismissal
Capability, qualifications of employee
Conduct of employee
Redundancy
Continue employment would contravene statute
Some other substantial reason
Process of unfair dismissal
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
Note
An employer can only rely on a given reason for dismissal where he knew of it at the date of the dismissal
Types of dismissal
Contract terminated by employer with or without notice (wrongful dismissal)
Fixed term contract expired and not renewed
Constructive dimissal
Constructive dismissal
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.
Integration test another point
Is the employee so skilled that they cannot be controlled in the performance of their duties
Which of the statements is correct regarding wrongful dismissal
Wrongfully dismissed employee is expected to mitigate their loss by seeking alternative employment
Remedies to unfair dismissal
Re engagement
Re instatement
Statutory compensation
Compensation for 18-21 years of age
Basic 1/2 week salary for each year of service
Compensatory: upto 83682 based on employee’s losses and expenses
22-40 years of age
1 week pay for each yr of service
22-40 years of age
1 week pay for each yr of service
41 plus
1.5 weeks pay for each year of service
