Employment law Flashcards
What is an employee?
Employment Rights Act 1996
A person that has a contract of employment with an employer.
Broadbent v Crisp [1974]
All employees are workers, but not all workers are employees.
If someone is classified as an employee this is determined by several tests
What is the control test?
This was one of the earliest tests and looks at the extent to which a person is under the control of the employer if he must obey orders, etc.
Short v Henderson Ltd (1946)
What is the integration test?
Is an extension of the control test and controls the circumstance of performance. meaning they are not self-employed the employer tells them what to do making them integrated into the business.
Stevenson, Jordan and Henderson v MacDonald and Evans [1952]
What is the economic reality test?
looks for evidence of self-employment rather than employment, and looks at issues such as does the person send invoices, does he use his own equipment, does he get paid holidays, is tax deducted from his pay, is he permitted to supply a substitute for himself if he is away, does he take any personal financial risks?
What is the mutual obligation?
The courts then moved on to look at whether the employer is obliged to provide work for the employee, and whether the employee is obliged to accept it.
Quashie v Stringfellow Restaurants Ltd (2012)
What is an implied term and how do you imply them?
Implied terms are terms that the parties did not specifically comment on, but which are implied in the contract. There are two ways terms can be implied.
The first is where the terms are so obvious that any other person would have agreed, such as the duty of an employee to exercise reasonable care and skill.
The second is statutes which incorporate terms into all employment contracts such as the national minimum wage.
National minimum wage act (1998)
What are the 3 types of dismissal?
Wrongful dismissal- If an employer dismisses the employee without giving him the notice agreed in his contract or dismisses him in breach of his contract in any other way, then this would be a wrongful dismissal.
Unfair dismissal- Unfair dismissal is covered by s 98 of the Employment Rights Act 1996 and means that the reasons for the dismissal, or the way that it was handled by the employer, were unfair.
constructive dismissal-A constructive dismissal is where an employee is entitled to resign without giving any notice because of the employer’s behaviour. Although the employee has resigned, he is entitled to bring proceedings for unfair dismissal.
Western Excavations (ECC) Ltd v Sharp (1978)
What are fair reasons for dismissal?
Capability-A person can be dismissed if he is not up to the job.
Davison v Kent Meters Ltd (1975)
Conduct- Ordinary misconduct is being late and having the wrong uniform and gross misconduct is more serious such as bullying and theft.
Adegbola v Marks & Spencer plc (2013)
Redundancy- If the person’s job is redundant, then the person can be fairly dismissed if the correct procedures are followed.
Statutory bar-This is where the employer believes that it would be unlawful for him to employ the person, such as when his work permit has run out, or the person is a driver who has been disqualified from driving.
Some other substantial reason-This comes into play if the employee has been dismissed for a reason which does not come within the others in the list, but which is a fair one and is ‘substantial’, not just a whim of the employer.
Henderson v Connect (South Tyneside) Ltd (2009)
What is a protected characteristic?
age- S5, Thomas v Eight Members Club and Killip (2007)
disability- S6, Environment Agency v Donnelly (2013)
gender reassignment- S7,
marriage and civil partnership- S8
pregnancy and maternity- S17-S18, London Underground v Edwards (1995)
race- S9, Amnesty International v Ahmed (2009)
religion or belief- S10, Eweida v British Airways (2010)
sex- S11
sexual orientation- S12, Martin v Parkam Foods Ltd (2006)
What is direct and indirect discrimination?
Direct discrimination-Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic.
Indirect discrimination-Indirect discrimination is when someone discriminates against a characteristic without knowledge.
Equality Act 2010
What is victimisation?
If a person makes a complaint about discrimination, or supports someone else in their complaint, and does this ‘in good faith’, in other words not maliciously in relation to a false complaint, then they are protected from being victimized.
what are the differences between civil and criminal law
Civil law- The civil side of Health and Safety Law consists of people who are injured or who have become ill because of their working environment or practices, bringing court action so that they can be compensated for injuries that occurred because of lax health and safety at work.
General Cleaning Contractors v Christmas (1952)
Criminal law- The law makes it a criminal offence for an employer not to provide a safe and healthy working environment. That means that the employer can be prosecuted and punished if found guilty.
R v Swan Hunter (1981)
