Employment Flashcards
What is the Employment Rights Act 1996?
It defines an employee as an individual who has entered into or works under a contract of employment.
What factors must be considered using the multiple test?
Whether certain fundamental criteria are satisfied and also whether all other characteristics of the relationship are consistent with a contract of service
What is a mutuality of obligations?
The employer must be under an obligation to provide work to the employee and the employee must have an obligation to perform that work
What case relates to mutuality of obligations?
Carmichael v National Power
Are employees required to perform work personally?
Yes
If you’re not an employee, what else could you be?
A worker or an agency worker
What is a worker?
It is a wider category which includes employees, only those who are genuinely self-employed are excluded
What consists in The Working Time Regulations 1998?
Applies to workers and includes rights, e.g. impose limits on workers’ hours of work, right to paid annual leave and the right not to suffer unauthorised deductions from wages
What is an agency worker?
It is a tripartite relationship - there is no contractual arrangement between the individual and the end user
What case relates to the different types of workers?
Dacas v Brooke Street Bureau
What is The Conduct of Employment Agencies and Employment Business Regulations 2003?
Sets out certain minimum requirements for the end user to provide information regarding employment status
What is the Agency and Workers Regulations 2011?
It puts in place some safeguards regarding basic pay and working conditions
Can the director of a company be an employee?
Yes, because the company has separate legal persona
What do some directors work under?
A service agreement
What can the terms of a contract of employment be?
Express, implied or implied by statute
What are express terms?
Conditions within the contract which are specifically agreed between the parties
What section in the ERA 1996 describes what must be contained in a written statement from employer to employee?
Section 1
What must the written statement of particulars contain?
Job title, description of work and start date, how much and how often an employee will be paid, hours of work, holiday entitlement, location of work, etc
Is the written statement of particulars a contract?
No, unless agreed to be so
What are implied terms?
Implied various duties on both employees and on employers, into employee contracts
What are the employees duties?
Obey reasonable orders, mutual cooperation, exercise reasonable skill and care, and good faith
Can employees do other work in their spare time?
Yes, but they may not compete with their employer’s work
What are employees not allowed to disclose?
Trade secrets or use confidential information
What are the employers duties?
Pay reasonable remuneration, indemnify the employee, provide a safe system of work, mutual cooperation, provision of work, and provision of reference
What acts have statutory safety requirements?
The Factories Act 1961 and the Health and Safety at Work Act 1974
What are the statutory implied terms?
ERA 1996, Working Time Regulations 1998, Employment Act 2002, Equality Act 2010 and National Minimum Wage Act 1998
What are collective agreements?
Can be a further source of terms and conditions. They are made by, or on behalf of, one or more trade unions with one or more employers
What is the Transfer of Undertakings Regulations 2006?
These are specific statutory protections that are in place for employees of organisations where the ownership changes during their period of employment
What is wrongful dismissal?
It is a common law action for breach of contract and is available to both employees and independent contractors
When does wrongful dismissal occur?
When an employer terminates the contract without giving proper notice or during its fixed term
What is dismissal without notice called?
Summary dismissal
When might a summary dismissal take place?
If an employee is guilty of serious misconduct
What are the remedies for wrongful dismissal?
A claim for damages for breach of contract can be raised in either the Sheriff Court or an Employment Tribunal
When can a claim for wrongful dismissal be made?
It must be made within 3 months of dismissal and be for £25,000 or less
If a contract is silent, what are the minimum notice periods given by employers?
1 month - 2 years: 1 week, 2 years - 12 years: 1 week per complete year, and 12 years + : 12 weeks’ notice
If a contract is silent, what are the minimum notice periods given by employees?
An employee with at least 4 weeks’ continuous employment must give the employer a minimum of one week’s notice of termination
What is unfair dismissal?
When a contract is terminated by the employer with or without notice
What steps must be followed for an award to be made by the employment tribunal to the employee?
Must have been employed for a minimum period of 2 years, must have served a grievance notice, must make a claim within 3 months of the dismissal, and must prove they were dismissed
What are the 5 fair reasons of dismissal?
Capabilities/qualifications of employee, conduct of employee, redundancy, continued employment would contravene statute or some other substantial reason
What case is an example of constructive dismissal?
Kevin Keegan v Newcastle United Football Club
The “reasonableness test” involves what?
Whether the reason given was sufficiently serious to merit dismissal or whether the employer adopted reasonable procedures both in coming to the decision to dismiss and the manner in which it was done
What are inadmissible reasons for dismissal?
Pregnancy or exercise of maternity leave rights, trade union membership, assertion of statutory rights, unfair selection for redundancy or victimisation for health and safety complaints or whistleblowing
What is a whistle blower?
A person who raises a concern about wrongdoing, e.g. violation of law, fraud, etc
When does redundancy arise?
Where there is a disappearing role, workplace or a cessation or diminution of work
How many years must an employee have continuously been employed for to be eligible for a redundancy payment?
2 years
