Employment Law Flashcards
What is the diefference between contract of service and contract for service?
- Contract of service is a contract between employee and employer.
- Contract for service is a between 2 independent parties. One party agrees to provide services for the other in exchange for payment.
True/False: An employer is responsible for the actions of its employees.
True
An employee driving a company truck injures a cyclist. Who can the cyclist claim against? And why?
A: The employee; or
B: The company; or
C: Both
B: The company, because they have vicarious liability.
What are the 4 conditions for a worker to be considered an employee?
- Mutuallity of obligations - Work in exchange for payment
- Pay - Pays the worker or agent direct
- Personal service - The person must provide the service personally and is not entiitled to provide a substitute.
- Control - The employer has sufficient control over the workers activity
A court will use a 3 tests to determine if someoone is an employee or not. What are these test?
- Control test
- Integration test
- Economic reality test
What is the control test when determining if a worker is an employee or contractor and what would indicate someone is an employee?
It assesses the amount of control one person has over the other. If there is a high degree of control then there is considered to be a master servant relationship and the worker would be considered an employee.
In what situation may the control test not be appropriate?
Where the employee has specialist knowledge and so the employer has to let the employee use discretion and skilled judgement to decide what to do.
What is the integration test when deciding if a worker is an employee and;
1. What would suggest the worker is an employee?
2. What would suggest the worker is not an employee?
The integration test looks at the extent to which the individual in question is integrated into the apparent employer.
1. If the work of the individual is integral to the activities of the organisation they are considered an employee.
2. If the work of the individual is not integral to the organisation then they are not considered an employee.
What is the economic reality test and what are some potential factors it may look at when deciding if a person is an employee?
It is a broader test that takes into consideration several factors to reach an assessment of the “economic reality”. These may include:
- The regularity of work hours
- Method of payment. ie regular/irregular
- Ownership of tools and equipment. Ie owned by self or company
- Mutual obligations. Ie. individual has to work and company has to provide work
- More
What is a 0 hour contract?
Contracts of employment where the employee is not given regular work but is on call whenever the employee needs them.
Paul has a zero hour contract with Maccies, he is entitled to:
A: Not accept work offered to him (ie not accept a night shift)
B: Allowed to undertake work for other people
Are the above statements
A: True, False
B: True, True
C: Flase, True
D: False, False
B: Both true
An organisation inserts a clause in an agency workers contract, that gives them rights to ask for a substitute to complete booked work, but this is never likely to be used. the organisation then claims the clause is proof that the individual is not an employee and and refuses to give statutory holidays. Will the clause be considered in a case brought by the worker in a claim to regain these rights?
No. The clause is unlikely to be used and so it will be considered a sham and ignored.
A contract of employment is made up of 3 diufferent types of terms. What are these?
- Express terms
- Terms implied by the courts
- Terms implied by statute
True/False: An employee has a statutory right to recieve a written statement of certain details about their employement and this is considered to be a contract of employement.
False. The employee does have a right to the statement but it is not to be considered a contractr unless this is decided to be the case by both parties.
True/False: implied by the courts is:
1. The duty for an employee to obey all orders from an employer and not frustrate their commercial objectives
2. The duty for an employer to not act in a manner that may damage mutual trust and confidence between employee and employer.
3.
- False - Only has a duty to obey “reasonable” orders
- True
Is it a statutory requirement for a employer to provide a reference of employment?
No.
An employer gives an untrue and dergoatory reference for a former employee. What is the legal status of this?
The employee may be able to sue for the Tort of Defamation.
An employer gives a false reference claiming a previous employee had experiance in filing VAT return. The employee was hired on the basis of this. What is the legal position for the new employer?
They may be able to sue for the Tort of negligence if there is deemed to have been damages arising from this.
Under the Working Time Regualtions 1998, what is the most hours an employee (17+) can be made to work per week? (There are some exceptions)
48 Hours per week
Under the Working Time Regualtions 1998, what is the most hours an employer aged 16 or 17 can be made to work per week and day?
40 hours per week & 8 Hours per day
True/false: Employees have a right to request flexible working hours?
True
How long does an employee need to have been employed by their employer to request flexible working?
A: 6 Months
B: 2 Years
C: 26 Weeks
D: 1 year
C: 26 weeks
