Employment Law Flashcards
What is the difference between an employee and a self-employed person?
Employee has a contract of service
Self-employed have a contract for service
What are the key factors of determining employee status?
Delegation - employee can’t
Control - employer tells how to do job
Mutuality of obligations - employer provides work, employee does it
Contractual provisions - terms in contract eg holiday etc
Tools and equipment - self-employed have their own
Uniform - employee wears
Integration - email address, christmas parties
Payment of tax and NI - employment deductions
Financial risk - self-employed
Number of employments - more than one person = self employed
Length of service - longer service means employment
What are the implications for employees?
Can be wrongfully dismissed
Has employment protection - minimum notice period, redundancy pay
Insolvency - payment of outstanding salary, redundancy
Implied terms - rights and duties implied by law
Tortious acts - employer vicariously liable
Taxation - PAYE
VAT - none
Social security - employer secondary class 1, employee primary class 1
What are the implications for the self-employed?
Cannot be wrongfully dismissed
Has employment protection for workers - H&S
Insolvency - none
Implied terms - none
Tortious acts - hirer limited liability
Taxation - self-assessment
VAT - may have to charge
Social security - independent contractors pay class 2 and 4
What are workers?
Between employees and independent contractors
Have some protection
What is included in an employee contract?
Agreement between the parties - written or oral
Number of terms like pay, hours, place of work, special agreements
How can an employment contract be altered?
Requires consent of both parties unless:
New legislation may need a term to trade
Express term in contract can give rights of variation
Can an employer give an oral contract?
Yes but must give a written particular on or before commencement of employment - made up of principle statement and wider written statement
What does the principle statement cover?
Names of employer and employee
Job title, start date
How much and how often paid
Hours and days of work
Holiday
Where working
How long jobs last
How long probation and conditions
Benefits
Training
Sick pay
Paid leave
Notice periods
What does the wider written statement include?
Provided within 2 months
Pension, pension schemes
Right to non-compulsory training
Disciplinary and grievance procedures
What are an employee’s implied duties?
Duty of faithful service
To obey lawful and reasonable orders
Not to misuse confidential information
To exercise reasonable care and skill
Personal service
Trust and confidence
What are an employer’s implied duties?
To pay remuneration
To indemnify employees
Health and safety
To provide work
To provide accurate references
Not to disclose confidential information
To maintain mutual trust and confidence
To observe sustainability regulations
What do the acts concerning pay include?
Equal pay for equal value
National minimum wage
What does the health and safety act include?
Provide and maintain safe plant and systems
Arrangements to ensure safe use, handling, storage and transport of items
Provide adequate info, instruction, training and supervision
Maintain safe environment with access in and out
What is the punishment for breach of health and safety?
Unlimited fine
Up to 2 years prison
What falls under social security law and work life balance?
National insurance
Flexible working
Ante-natal care
Maternity/Paternity leave and pay
Shared parental/adoption leave and pay
Parental bereavement leave
What does the equality act aim to do?
Outlaw direct and indirect discrimination, harassment and victimisation
What is direct and indirect discrimination?
Direct - discrimination because of a protected characteristic
Indirect - disadvantaging people with protected characteristics
What are the protected characteristics?
Age
Disability
Sex
Race
Religion
Marriage
Pregnancy/maternity
How do employers avoid liability for discrimination?
If they can prove their actions were a proportionate means of meeting a legit aim
What are the minimum notice periods for different lengths of service?
> 1 month, < 2 years - no less than 1 week
2years, < 12 years - no less than 1 week per year of continuous employment
12 years no less than 12 weeks
What are the steps for claiming unfair dismissal?
1) Show he is a qualifying employee - works within GB, not dismissed while taking unofficial strike, employed continuously for 2 years, claim made within 3 months of termination
2) Show he has been dismissed - non-renewal of contract, termination without notice, constructive dismissal
3)Employer shows he dismissed employee for fair reason
4) Employer shows he behaved reasonably and followed procedure
What is constructive dismissal?
When an employer makes the job impossible so the employee must resign - pay reduction, complete change in duties etc
What are fair reasons for dismissal?
The employee has a lack of capability/qualification
Employee misconduct
Redundancy
Statutory restriction
Age, marriage to competitor, illegal personal activity
When can redundancy be unfair dismissal?
When there is unfair selection
Selected because of trade union membership
What are the tests for determining if an employer behaved reasonably in dismissal and what is the punishment for failing to comply?
Have relevant procedures been followed
Take all circumstances into consideration - illness, experience
What would reasonable employer do
Damages increased/decreased by 25%
What makes a dismissal automatically unfair?
Pregnancy
Spent conviction
Trade union membership/activities
Transfer of undertakings
Taking steps to protect himself/others if believes there to be imminent danger
Seeking to enforce statutory rights
Whistleblowing
What are the remedies for unfair dismissal?
Reinstatement - old job back
Re-engagement - new job, same employer
Compensation - award based on length of service
What is wrongful dismissal?
Dismissal in breach of an express or implied term in the contract
No maximum damages, 6 years to claim, no minimum period of employment
When is summary dismissal justified?
When wilful refusal to obey a lawful and reasonable order
Gross misconduct
Dishonesty
Gross or persistent negligence
Breach of an express term of contract
What are the remedies for wrongful dismissal?
Damages based on earnings if dismissal had not occurred
Employee must mitigate losses and look for new employment
What is redundancy?
When an employee is dismissed because:
The employer will/is ceased to carry on purpose of business or place of business
The requirements of business have ceased/diminished
What is the procedure for claiming redundancy?
1) Show he meets the conditions - employed continuously for 2 years, employee, claim within 6 months
2) Show redundancy - laid off or kept on short time for 4+ consecutive weeks/ 6 out of 13 weeks of employment
If the employer offers new employment, what are the requirements?
Must be same capacity, terms, place as original - not perceived as lower in status
Four week trial period - if terminate new contract during trial period, treated as a case of redundancy
