Employment Law

Question 1

What is Employment Law?

Answer 1

This deals with the rights and obligations in the work place.

It is a mixture of Common Law (especially contract law) and statutory employment rights

Question 2

How do you identify a contract of Employment?

Answer 2

The Employment Rights Act 1996 defines an employee as an individual who has entered into, or works under, a contract of employment

Question 3

What is a Contract of Service?

Answer 3

The ‘multiple test’ requires consideration of a variety of different factors, e.g.
1. whether certain fundamental criteria are satisfied
2. whether all other characteristics of the relationship are consistent with a contract of service

Question 4

What is a Mutuality of Obligations?

Answer 4

The contract must have both of these elements:
1. The employer must be under an obligation to provide work to the employee

2. the employee must have an obligation to preform that work.

Question 5

Carmichael v National Power (2000)

Answer 5

Facts: Mrs Carmichael worked for National Power as a power station guide for the public. she was paid only for the hours she worked. Sometimes she was offered work which she did not accept.

Held: As she could choose whether to work or not there was no mutuality of obligation and so no contract of employment existed.

Question 6

Does the employee have to perform the work personally?

Answer 6

Yes, an employee is required to personally perform the work in exchange for wages or remuneration under the control or supervision of the employer.

Question 7

Examples of provisions of the contract of service

Answer 7

1. fixed hours of work
2. maternity pay
3. sick pay
4. grievance pay
5. if the employee uses their own equipment
6. who assumes financial risk
7. payment of tax and national insurance

Question 8

Relevant factors for the Multiple Test

Answer 8

1. Control
2. Provision of his own equipment
3. Whether he hires his own helpers
4. Degree of financial risk he undertakes
5. Degree of responsibility he bears for
   investment and management
6. The extent to which he has an opportunity
   of profiting from sound management in the
   performance of his task
7. Whether there is a regular method of
   payment
8. Whether the person works regular hours
9. Whether there is a mutuality of obligations

Question 9

What is a worker?

Answer 9

All employees are workers, however not all workers are employees

Question 10

What are workers not entitled to?

Answer 10

1. minimum notice periods if their
   employment will be ending
2. protection against unfair dismissal
3. the right to request flexible working
4. time off for emergencies
5. statutory redundancy pay

Question 11

Uber BV & Others v Aslam (2020)

Answer 11

Facts: the main question raised was whether an Uber driver is a ‘worker’ for the purposes of employment legislation which gives ‘workers’ rights to be paid at least the national minimum wage, to receive annual paid leave. Uber argued that their drivers were self employed and using the app as a booking and payment service.

Held: the supreme court held that Uber drivers are workers

Question 12

What are express terms?

Answer 12

Express terms are those agreed by the parties themselves. The agreement may be written or verbal

Question 13

What is the time period in which an employer must provide the employee with a written statement of prescribed particulars of their employment?

Answer 13

2 months

Question 14

What must a principal statement include?

Answer 14

1. the business’s name
2. employee’s name, job title, description of
   work, start date
3. how much and how often they will be paid
4. hours of work
5. holiday entitlement
6. where an employee will be working

Question 15

When is a principal statement a contract?

Answer 15

When both parties agree on the statement, it then becomes strong evidence of the terms but it is not conclusive

Question 16

What must terms be in order to be implied?

Answer 16

1. necessary for the business efficacy
   or
2. so obvious as to go without saying

Question 17

What is the business efficacy test?

Answer 17

The term must be necessary to give the contract business effect. If the contract makes business sense without the term, the courts will not imply a term.

Question 18

The Moorcock (1889)

Answer 18

Facts: Ship-owners contracted the defendant to discharge a ship at their jetty. The jetty extended into the River Thames where the ship must ground. They took no steps to determine whether the space was safe for the ship and, on grounding, the ship suffered damage because of the uneven nature of the riverbed. The ship owners claimed for breach of contract.

Held: The ship owners were successful in their claim. The whole purpose of the contract was to use the jetty and the jetty could not be used without the vessel grounding. The wharfingers should have taken reasonable steps to endure the vessel could safely ground without suffering damages.

Question 19

What is the ‘officious bystander’ test?

Answer 19

This term will be implied if it is so obvious that it goes without saying

Question 20

Shirlaw v Southern Foundries Ltd (1939)

Answer 20

Facts: Mr Shirlaw was the managing director for SF. Then the business was taken over and the new owners altered the constitution, empowering 2 directors and the secretary to their friends and allowed them to remove any director. They fired Mr S, however his contract that was signed in 1933 stated that he had to remain in post for 10 years. He sued the company for breach of contract.

Held: The High Court awarded £12,000 to Mr S for breach of contract

Question 21

Duty to obey reasonable orders - Pepper v Webb (1968)

Answer 21

A gardener refused to plant the plants where instructed by his employer and was held to be in breach of his duty of obedience. That plus his rude and surly manner justified dismissal.

Question 22

What is the Duty of mutual co-operation (duty to perform work in a reasonable manner)?

Answer 22

Employer must give, and the employee must obey, lawful instructions. The employer must not act in a manner calculated to damage the mutual trust and confidence and this is considered the reasonableness of the order.

Question 23

Secretary of State for Employment v ASLEF (1972)

Answer 23

Facts: railway workers worked to rule thus causing considerable delays to passengers

Held: there was an implied term that each employee in obeying instructions would not do so in a wholly unreasonable way which had the effect of disrupting the service they were there to provide

Question 24

What is the duty to exercise reasonable skill and care?

Answer 24

The employee must act with reasonable care in performing his duties. The standard of care will depend on the circumstances. Usually, a single act of negligence, unless it is gross negligence, will not justify summary dismissal it but depends on the circumstances, (eg a doctor or pilot may be dismissed after a single negligent act).

Question 25

Lister v Romford Cold Storage Ltd (1972)

Answer 25

Facts: an employee negligently ran over another with a forklift truck

Held: he was liable in damages to his employer for breach of contract

Question 26

What is the duty of good faith?

Answer 26

A duty to give honest and faithful service.

The employee cannot use the employer’s property as his own, and must account to the employer for any money or goods he receives in the course of his employment.

Question 27

Sinclair v Neighbour (1967)

Answer 27

Facts: an employee secretly borrowed money from the shop till. He repaid the money the following day

Held: it was a breach of duty of good faith. The employer was justified in summarily dismissing him

Question 28

Hivac Ltd v Park Scientific Instruments Ltd (1946)

Answer 28

Facts: two employees of a company which manufactured sophisticated components for hearing aids worked for the rival at the weekends

Held: injunction (interdict in Scotland) granted as there was potential for misuse of secret information

Question 29

What is the duty to render personal service?

Answer 29

employees may not delegate the performance of their work to someone else unless they have their employer’s express or implied permission

Question 30

What is the duty to pay reasonable remuneration?

Answer 30

this will be the implied duty of the employer in the absence of an express provision regarding pay

Question 31

What is the duty to indemnify the the employee?

Answer 31

The employer must indemnify his employee where the employee has incurred a legal liability or necessary expenses whilst acting on the employer’s behalf.

Question 32

What is the duty to provide a safe system of work?

Answer 32

At common law the employer is under a duty to take reasonable care for the health and safety of his employees. Breach of this duty exposes the employer to liability in negligence.

Question 33

Latimer v AEC Ltd (1953)

Answer 33

Facts: Following flood damage, the employer carefully strewed sawdust on the floor to prevent employees slipping until floor could be properly cleared. A small patch remained uncovered and Latimer slipped and was injured.

Held: The employers had not acted unreasonably and were therefore not liable for the injuries to Latimer

(duty to provide a safe system of work)

Question 34

What is the duty of mutual cooperation?

Answer 34

This is the reciprocal duty to that owed by the employee, ie the employer is bound not to act in such a way as to abuse the trust within the relationship, eg not to abusively reprimand an employee

Question 35

United Bank v Akhtar (1989)

Answer 35

Facts: A mobility clause in Akhtar’s employment contract permitted the bank to require him to transfer to anywhere in the UK where the bank had a presence. The bank had discretion to pay relocation and other allowances. Akhtar was asked to move from Leeds to Birmingham with less than one week’s notice. When he asked for more notice to sell his house and so forth, the bank refused. To make matters worse, it offered no financial assistance.

Held: It held that while the implied term of mutual trust and confidence could not override the express mobility provision, the latter had to be interpreted in such a way that it included an implied requirement that reasonable notice would be given, and that discretion concerning financial assistance be exercised in a way that allowed the employee to comply with his contractual obligations. The bank appealed – but to no avail.

(duty of mutual cooperation)

Question 36

What is the provision of work?

Answer 36

There is no general common law duty to provide work however such a duty can be implied due to the mutuality of obligations and business efficacy test where failure to provide work would deprive the employee of the benefits contemplated by the contract.

Question 37

William Hill Organisation v Tucker (1998)

Answer 37

Facts: Tucker was a senior dealer operating in the field of spread betting. The company put him on “gardening leave” for the period of notice before he left to start with a new employer

Held: William Hill was in breach by not providing work because Tucker had particular skills which he had to exercise to maintain

(provision of work)

Question 38

What is a Provision of Reference?

Answer 38

There is no duty to provide a reference but if one is given it must be truthful.

Question 39

Spring v Guardian Assurance (1994)

Answer 39

Held: The defendants did owe the claimant a duty of care in providing a reference. The reference provided by the employer was described as“ so strikingly bad as to amount to . . . the “kiss of death” to his career in insurance.” Knowing that a bad reference would damage his prospects of employment they were in breach of that duty of care.
The House of Lords held that sending a bad reference, if it contained inaccurate information, could be a breach of duty in tort for negligence.

Question 40

Employment Rights Act 1996 (ERA)

Answer 40

employees have a right not to be unfairly dismissed, a right to redundancy payments, and a right to a minimum notice period

Question 41

Working Time Regulations 1998 (WTR)

Answer 41

limits the hours to an average of 48 per week, 5.6 weeks paid annual leave and one day off per week

Question 42

Employment Act 2002

Answer 42

gives parents of children under 17 the right to request flexible working hours which must be given serious consideration. Also provides for paternity and adoption leave

Question 43

Equality Act 2010

Answer 43

implies an equality clause into all contracts if workers of the opposite sex do the same job or a different job of the same value. Also protects people from discrimination in the workplace

Question 44

National Minimum Wage Act 1998

Answer 44

imposes minimum pay levels

Question 45

What are collective agreements?

Answer 45

Collective agreements are made by, or on behalf of, one or more trade unions (eg ASLEF, NUJ, UNISON etc) with one or more employers or employers’ associations

Question 46

What is a transfer of undertakings?

Answer 46

When a company is sold the purchaser must take on the existing employees on the same terms and conditions. They are said to have been “TUPED over”. It is as if the contracts of employment had originally been made by the new employer. TUPEstands for theTransferof Undertakings (Protection of Employment) Regulations and its purpose is to protect employees if the business in which they are employed changes hands. Its effect is to move employees and any liabilities associated with them from the old employer to the new employer by operation of law

Question 47

What are Notice Rights?

Answer 47

The parties to a contract of employment will generally agree appropriate notice periods to apply. If no specific provision is made, a reasonable period of notice can be implied at common law, based on the employee’s role and level of seniority within the workplace.

1 month - 2 years = 1 week
2 - 12 years = 1 week per year worked
12+ years = 12 weeks

Question 48

What is wrongful dismissal?

Answer 48

A claim for wrongful dismissal is a common law action for breach of contract. It is available to both employees and independent contractors.

Wrongful dismissal occurs when an employer terminates the contract :
(i) eg without giving proper notice or failing to follow a contractual disciplinary procedure.
or
(ii) during its fixed term.

Question 49

What is summary dismissal?

Answer 49

Summary dismissal (without notice) is usually wrongful dismissal unless the employee:

Waives the right or accepts payment in lieu of notice
or

Repudiates the contract themselves or is in fundamental breach (eg wilful refusal to obey orders; failure to show professed skill; serious negligence; breach of duty of good faith).

Question 50

What is the remedy for wrongful dismissal?

Answer 50

A claim for damages for breach of contract can be raised in either the Sheriff Court or an Employment Tribunal

The claim must be made within 3 months of dismissal and be for £25, 000 or less.

Question 51

What is unfair dismissal?

Answer 51

This is restricted to employees with at least two years’ continuous service.

However, there are exceptions to this requirement when dismissals are made for certain automatically unfair reasons, including those relating to pregnancy, childbirth, maternity or other statutory family-related leave, as well as victimisation of health and safety complainants or whistle-blowers, trade union membership/non-membership/activities or unfair selection for redundancy.
In these cases, there is no need to meet the length of employment condition. The tribunal will also make an additional award of compensation.

Question 52

What is a dismissal?

Answer 52

A dismissal can be in relation to (ERA 1996, s(95)):
1. termination by the employer (with or without notice)

2. termination of a limited contract by virtue of the limited even and which is not renewed (e.g. the expiry of a fixed term contract)
3. constructive dismissal (e.g. termination by the employee in circumstances where he is entitled to do so without notice by reason of the employers conduct. Usually in response to a fundamental or material breach of contract by the employer)

Question 53

What are the requirements that needs to be met before an award can be made to an employee?

Answer 53

1. must have been employed for 2 years
2. must have served a grievance notice on their employer
3. must make the claim to the employment tribunal within 3 months of dismissal
4. must prove they were dismissed
5. the employer must prove the reason for dismissal (must prove its one of the 5 fair reasons)
6. the tribunal must be satisfied that the employer acted reasonably
7. if found unfair, the employee is entitled to reinstatement, re-engagement or compensation

Question 54

How can an employer successfully defend a dismissal claim?

Answer 54

They must prove:
1. the reason for the dismissal was one of the 5 fair reasons

and

2. the employer acted reasonably in treating that reason as sufficient grounds for dismissal

Question 55

What are the 5 fair reasons for dismissal? (ERA 1996, s98)

Answer 55

1. Capabilities/qualifications of employee
2. Conduct of the employee
3. Redundancy
4. Continued employment would contravene statute
5. Some other substantial reason

Question 56

Devis W and sons Ltd v Atkins (1977)

Answer 56

Employer dismissed the employee and afterwards discovered that the employee had been guilty of dishonesty.

Held: Dishonesty was not the reason for dismissal and so the employer could not rely on it in order to justify the dismissal as fair.

Question 57

Stevenson v Golden Wonder Ltd (1977)

Answer 57

A technical manager made an unprovoked assault on another employee at a company social function outside work hours.

Held: This was a fair reason for dismissal - it was serious misconduct.

Question 58

What is the band of reasonable responses?

Answer 58

This is where the courts interpret the reasonableness required such that the tribunal has to ask whether the decision to dismiss dell within the ‘band of reasonable responses’ open to a reasonable employer faces with the same circumstances

Question 59

What are the 2 questions involved in the ‘reasonableness test’?

Answer 59

1. Whether the reason given was sufficiently serious to merit dismissal
2. Whether the employer adopted reasonable procedures both in coming to the decision to dismiss and in the manner of the dismissal itself.

Question 60

Polkey v Dayton (AE) Services (1987)

Answer 60

Mr Polkey drove a van for 4 years until he was told to come to his manager’s office and informed that he was being made redundant on the spot.

This case stresses the importance of procedural safeguards.

Question 61

What is constructive dismissal?

Answer 61

This occurs where an employee decides to resign from their job in response to the employer’s conduct, which must amount to a fundamental breach of contract.

The employees resignation is treated as an actual dismissal by the employer.

The employers fundamental breach of contract could be one serious incident or loads of little ones, e.g.:
1. not being paid on time
2. being suddenly demoted for no good reason
3. unreasonable changes to how employees work without appropriate consultation, e.g. shift change
4. being bullied/harassed by other employees
5. falsely accusing you of misconduct, such as theft, without a proper investigation

Question 62

Simmonds v Dowty Seals Ltd (1979)

Answer 62

Shift was changed from night to day without appropriate consultation

Held: resulted in constructive dismissal

Question 63

Western Excavating (ECC) Ltd v Sharp (1987)

Answer 63

Mr Sharp asked for three hours off one afternoon but this was refused. He went anyway. He was dismissed the next day, however, on review, this sanction was revoked and replaced by 5 days’ unpaid suspension. Sharp asked for an advance in holiday pay but this was refused, as was a request for a loan. He then resigned. Sharp claimed constructive dismissal but was not successful.

Held: If an employee were to delay before resigning, it may be seen by the tribunal that it wasn’t a resignation in resistance of the act relied on by the employee. Alternatively, the tribunal may decide that the fact that the employee remained in employment for some time after the ‘breach’, that the employee cannot have deemed it sufficiently serious as to terminate the employment.

Question 64

Kevin Keegan v Newcastle United Football Club Limited (2010)

Answer 64

A football club manager resigned and claimed he had been constructively dismissed. When he was appointed manager it was agreed he would have the final say regarding the transfer of players to the club. The club breached this term by signing a particular player against his express wish and “ he had no choice but to resign”

Held: He had been constructively dismissed and he was awarded £2M in damages

Question 65

Cox v Toner (International) Ltd v Crook (1981)

Answer 65

(i) The employee must make up his or her mind whether or not to resign soon after the conduct of which s/he complains.

(ii) Mere delay of itself, unaccompanied by express or implied affirmation of the contract, is not enough to constitute affirmation; but it is open to the Employment Tribunal to infer implied affirmation from prolonged delay.

(iii) If the employee calls on the employer to perform its obligations under the contract or otherwise indicates an intention to continue the contract, the ET may conclude that there has been affirmation.

(iv) There is no fixed time limit in which the employee must make up his mind; the issue of affirmation is one which, subject to these principles, the ET must decide on the facts; affirmation cases are fact sensitive.

Question 66

How long after a dismissal do you have to claim unfair dismissal?

Answer 66

3 months

Question 67

What are the three remedies for unfair dismissal?

Answer 67

1. Compensation
2. Reinstatement (employee is treated as if not dismissed)
3. Reengagement (employee is given comparable employment)

Question 68

When can an employee become redundant?

Answer 68

1. the employer has ceased, or intends to cease, business for the purposes for which the employee has been employed
2. the employer has ceased, or intends to cease to carry on the business in the place where the employee was employed
3. the requirements of that business for employees to carry out work of a particular kind, or for them to carry out the work in the place where they were so employed, have ceased or diminished

Question 69

When can a redundancy become unfair?

Answer 69

If the employer fails to consult employees - and their representatives if applicable (eg trade union reps)

Question 70

What is a collective redundancy situation?

Answer 70

Where an employer plans to make 20 or more employees redundant in a 90 day period they must

1. Notify the Department of Business Innovation and Skills

and

2. Consult with work place representatives, ie either trade union reps or elected employee reps or if neither is applicable then information must be supplied directly to each employee

Question 71

European Chefs Catering v Currell (1971)
Redundancy

Answer 71

A pastry cook was dismissed because the requirement for his speciality (eclairs and meringues) had ceased. He was replaced by a new pastry cook whose speciality was the new requirement (continental pastries).

Held: the pastry cook had been dismissed for redundancy as the need for his speciality had ceased

Question 72

Vaux & Associated Breweries v Ward (1969)
Redundancy

Answer 72

A quiet public house was modernised by installing a discotheque and Mrs Ward the 57 year old barmaid was dismissed in order to employ a younger more glamourous woman.

Held: Mrs Ward had not been dismissed for redundancy as the nature of the work had not changed.

Question 73

What are the consultation time periods in redundancy?

Answer 73

30 days before the first redundancy where 20 -90 are proposed.

45 days in advance where there are 100 or more proposed redundancies

Question 74

What are the requirements for a redundancy payment?

Answer 74

1. an employee must have been continuously employed for at least 2 years
2. the claim must be lodged with the Employment Tribunal within 6 months of redundancy
3. employee must prove he was dismissed

Question 75

Under what circumstances is an employee not entitled to redundancy pay?

Answer 75

When they have refused a fresh offer or employment made before the old contract expires.