Employment

Question 1

What does an employee work under?

Answer 1

A contract of service

Question 2

What are the three tests for determining if there is a contract of service?

Answer 2

Agreement to perform the work themselves. Element of control by employer. Mutuality of obligations that means the employer is obliged to provide work.

Question 3

What do the self employed work under?

Answer 3

Contracts for services.

Question 4

What other factors are looked at to determine an employer/employee relationship?

Answer 4

Provision of tools/uniforms. Use of support staff. Payment net of tax. High level of exclusivity. What the parties actually believe their working relationship to be

Question 5

Why is it important to know if someone is an employee?

Answer 5

You get stat protection. You will have implied contractual terms. Your employer is vicariously liable for you. You are a preferential creditor on insolvency. You will be entitled to certain benefits.

Question 6

What are the express terms in employment contracts?

Answer 6

The ones that both parties have agreed. The ones that are harder to change e.g wage, place, position, notice, hours, sick pay.

Question 7

When must the statement of written particulars be provided to the employee?

Answer 7

Within 2 months.

Question 8

What must the statement of particulars include?

Answer 8

All the important info about the job - pension, pay, title , hours. Provides general evidence of the contents of the contract.

Question 9

What are the implied terms in employment contracts?

Answer 9

Could be to the employEE e.g to obey any reasonable orders, give honest and faithful service, exercise reasonable care and skill, not misuse confidential info, give personal service. Or to the employER e.g to pay, to indemnify employees, to give notice, to provide work, to maintain mutual co-op.

Question 10

Is there a duty to provide references?

Answer 10

No

Question 11

What are employees guaranteed by statute?

Answer 11

Pay - equal, sick, minimum. Health and Safety - be safe at work in all aspects. Discrimination - freedom from it. Parental bereavement leave - if a child under 18 dies 2 weeks leave. Notice.

Question 12

What are the notice provisions?

Answer 12

1 month to 2 years employment = no less than a week. 2 years to 12 years = a week for each year of employment. 12 years + = 12 weeks. But your contract will likely have your exact period stated within.

Question 13

What is unfair dismissal?

Answer 13

Governed by Employment rights act and employment act it states that employees have stat protection when they are dismissed unfairly. Breaches the right to not be unfairly dismissed on certain grounds.

Question 14

Who can claim unfair dismissal?

Answer 14

Anyone who has worked there for 2 years or who’s reason is automatically unfair.

Question 15

What must the claimant show?

Answer 15

That they were employed and dismissed, within the last three months. From notice date.

Question 16

What constitutes dismissal?

Answer 16

Termination of contract. Expiration of contract. Constructive dismissal.

Question 17

What is constructive dismissal?

Answer 17

When the employee terminates the contract because of the employers conduct. It is important that this is done immediately to be able to claim it was the reason for the resignation.

Question 18

How long do you have to request a written reasoning statement when dismissed?

Answer 18

14 days.

Question 19

What counts as automatically unfair?

Answer 19

Whistleblowing. Pregnancy. Trade unionship. Spent convictions. Claiming something you are legally entitled to e.g minimum wage. Redundancy if there is not a fair reason for choosing you.

Question 20

What are statutorily fair reasons for dismissal?

Answer 20

Not got the capability/qualifications. Poor conduct. Redundancy - where the process and reasons are fair. Stat provision e.g you are a solicitor who forgets to renew their certificate. Other substantial reasons e.g criminal offences.

Question 21

Who is the burden of proof on?

Answer 21

The employer. They must prove that it was serious and fair and that they followed procedure (reasonableness test)

Question 22

What happens if procedures are not followed?

Answer 22

The employment tribunal may up damages by 25%.

Question 23

What are the remedies for unfair dismissal?

Answer 23

Reappointment. Re-engagement (new job same company). Compensation.

Question 24

What are the three kinds of compensation?

Answer 24

Basic - made regardless of any actual losses suffered. Compensatory - considers the losses and assesses how much damages are owed as a consequence.
Additional - made if the employer ignores a re-instatement or re-engagement order. Also given when discrimination or immediately unfair grounds were used.

Question 25

What is wrongful dismissal?

Answer 25

Things such as breaches of employment contracts. Allows a claim for damages not compensation. Can be brought in the 6 years following the event and if the employee has not worked there 2 years.

Question 26

What is summary dismissal?

Answer 26

Being dismissed without the apt notice being given.

Question 27

How is summary dismissal justified?

Answer 27

Was it due to a fundamental breach by the employee e.g gross misconduct, dishonesty, negligence, breach of express contract terms. Or where the employee had accepted a shorter notice period.

Question 28

What are the remedies for wrongful dismissal?

Answer 28

Damages. Normally calculated based on loss of earnings. The employee is supposed to mitigate the loss - this means that alternative work must be sought to limit how much they lose. Occasionally injunctions are used but this is considered rare and only if damages aren’t enough which they normally are.

Question 29

What is redundancy?

Answer 29

Dismissal because the employer has ceased/intends to cease trading or because the needs of the business have changed.

Question 30

What happens if you are not compensated when you are made redundant?

Answer 30

You are entitled to compensation and have 6 months to take action against your employer. You lose this right if you were offered reasonable new employment that you turned down.

Question 31

What makes you entitled to payment?

Answer 31

You have been employed for 2 years and gone to the tribunal in 6 months and can prove that you were laid off or kept on short time with less than half a normal weeks pay for 4 weeks in a row or 6 of the last 13.

Question 32

When are you not entitled to redundancy?

Answer 32

When you did gross misconduct. When you refused a reasonable alternative. When there was an offer to renew your contract and you refused.

Question 33

How long do you have to trial alternative employment?

Answer 33

4 weeks - then you have made a real effort with the alternative.