Employment Law

Question 1

What are the two types of working relationship?

Answer 1

Employee - Works under a contract of service

Self employed - Works under a contract for services

Question 2

What is the basic definition of Working under a contract of Service?

Answer 2

Employer controls how, when and Where work is done.
The work is integral to the business
The employer supplies all equipment and bears risks.
The employee cannot delegate or subcontract their work to another.
There is a mutuality of Obligations - to provide/carry out work.

Question 3

Why is it important to identify if someone is employed or self employed?

Answer 3

There are a number of consequences which will differ based on this determination:
Ee’s received statutory protection
Implied terms in employment contract
Er is vicariously liable for acts of Ee’s in the course of the business.
Ee is a preferential creditor for insolvency purposes.
Tax and NI are deducted at source by employer.
Eligibility for state benefits.

Question 4

Should there be an employment contract?

Answer 4

Yes under the Employee rights act all employees must receive, within 2 months of starting with a company, a written statement of particulars.
This does not have to be the contract but it usually is.

Question 5

What Express terms must be included in a Employment Contract?

Answer 5

Start Date
job Title
Full name
Wages/ Salary and Pay frequency
Holiday and other leave entitlements
Hours of Work
Grievance and Disciplinary procedures.

Question 6

Are there implied terms in an Employment contract?

Answer 6

Yes.

There will be implied terms relating to both Employee and Employer.

Question 7

What are the implied terms relating to Employees?

Answer 7

Duty to obey reasonable/Lawful orders
Give honest and Faithful Service - i.e. not working for a competitor.
Exercise reasonable care and skill
Not misuse confidential information
To give personal service - do the job yourself.
Mutual Cooperation.

Question 8

What are the implied terms relating to Employers?

Answer 8

Pay reasonable renumeration
Indemnify employee - Expenses/Liability
Take reasonable care for Health and Safety
Give reasonable notice of termination of employment
Mutual Cooperation.

Question 9

What is the difference between Wrongful and unfair dismissal?

Answer 9

Unfair dismissal - Termination of Contract without justifiable reason. Claim within 3 months of dismissal date
Wrongful Dismissal - Dismissal in a way that breeches contract. Claim within 2 years of dismissal date.

Question 10

What are the minimum notice periods and employer must give, laid down in the Employment Rights act?

Answer 10

4 weeks - 2 years employment - not less than 1 week
2-12 years - not less than 1 week for each year of continuous employment.
Over 12 years - 12 weeks.
Minimum notice required from employees is 1 week.

Question 11

What must an employee show in order to make a claim for unfair dismissal?

Answer 11

They must be:
A qualifying employee - 2 years continuous employment, unless automatically unfair dismissal.
Show they were dismissed or constructive dismissal.
Must serve a grievance notice on the employer.

Question 12

What is constructive dismissal?

Answer 12

Employee terminates contract due to employers behaviour.

This will apply if employee leaves immediately after employer conduct that is the issue.

Question 13

Who has the burden of proof in Unfair dismissal?

Answer 13

The employer must prove that the dismissal was for a fair reason, this may be:
Capability/Qualifications - must have had opportunity to improve
Conduct - usually at work but if sufficiently bad may be outside of work.
Redundancy - A fair selection process must be followed.
Statutory restriction - i.e right to work Visa expired.
Other substantial reason.

Question 14

What are the remedies available for unfair dismissal?

Answer 14

Re-instatement - return to job without a break in continuity (only with Ee’s agreement)
Re-engagement - New job with comparable terms and seniority (only with Ee’s agreement)
Compensation - Most likely remedy, will be made up of 3 elements.

Question 15

What three elements will compensation for unfair dismissal be made up of?

Answer 15

1. Basic - Minimum payable amount, based on Age/Salary/ Duration of service.
2. Compensatory - To cover losses and expenses due to loosing job, employee is required to mitigate these.
3. Additional Award - If employer has reduced to re-instate/re-engage, dismissed on discriminatory grounds, dismissed for automatically unfair reason.

Question 16

What about dismissal without notice?

Answer 16

This is known as summary Dismissal and will be held to be wrong unless:
Was due to a fundamental breech by the employee.
Or Employee accepted a shorter notice period.

Question 17

How is redundancy identified?

Answer 17

The reason for dismissal must be wholly or mainly attributable to:
Employer has ceased or intends to Cease trade.
business requirement for employees skills has ceased.

Question 18

What criteria must be met to claim redundancy?

Answer 18

Have been continuously employed for two years
Apply to Employment tribunal within 6 months of dismissal
Prove they were dismissed/Laid off/ kept on short time for at least 4 weeks.

Question 19

What are automatically unfair reasons for dismissal?

Answer 19

Victimisation of H&S Complainants or Whistle blowers.
Pregnancy or exercise of maternity leave rights.
Trade union membership/non membership/ activities.
assertion of a statutory right.
Unfair selection for redundancy.