EMPLOYMENT LAW Flashcards
Key factors to determine employee status
Tests may be applied differently in a tax case: 1 to 3 is essential.
- Can individual delegate or subcontract?
- Control - employee tell employer how to do his job.
- Mutuality of obligations - obligation to provide work and obligation for employee to perform work.
- Contractual provisions - sick pay / holiday pay
- Tools and equipment
- Uniform - employee more likely
- Integrated into business e.g @francisclark
- Payment of tax and NI
- Financial risk - self employed
- No. of employments - lots of people self - employed.
- Length of service
Implications - EMPLOYEE
Wrongful dismissal:
- Yes
Employee protection:
- Min period of notice
- Statutory redundancy pay
- Unfair dismissal
- H&S
Insolvency:
- Preferential rights to salary and redundancy payments (up to certain limits)
Implied terms:
- Rights and duties implied in employment contract by conman law and statue e.g. mutual duty if trust and confidence.
Tortious acts:
- Generally employer is vicariously reliable for employer acts - committed in the course of employment.
Taxation:
- PAYE
VAT:
- None
Social security:
- ERS secondary class 1
- EES primary class 1
Implications - SELF EMPLOYED
Wrongful dismissal:
- No
Employment protection:
- Statutory protection afforded to workers applies to independent contractors
- Working time protection
- Statutory h&s obligations
Insolvency :
- no preferential rights
Implied terms:
- implied acts and duties do not generally apply for a contract of service.
Tortious acts
- Liability of person hiring contractor is limited unless there is strict liability
Taxation
- Self-assessment, responsible for tax due to HMRC
VAT:
- May register
Social security:
- Independent contractors pay class 2 & 4 contributions.
Workers (third cat of employment) - Zero hours contract
- Between employees and independent contractors.
- Uber drivers
- Some protection e.g. min wage & paid leave.
Not protected from unfair dismissal or right to claim flexi able working
Employment contract
Agreement with consideration to create legal intentions.
Written or oral.
Changing contract
- Must have consent of both parties unless:
1. New legislation
2. Express term to give rights of variation e.g. ‘mobility clause’ - allows an employer to require the employee to work at a different location - must exercise powers reasonably, court will imply gets a of trust and respect, overrides strict application of contractual obligation.
Employment contract - requirement for written particulars
Absence of written contract an employer must give a ‘statement of written particulars’
Principle statement and wider written statement.
Amount to a legal contract but don’t provide evidence of terms agreed between the parties
Principle statement:
- Names
- Job title
- Start date
-Duration
- Where they will be working
- Holiday pay
- Sick pay, other paid leaves, notice period (may be given on separate document.
Wider written statement (provided within 2 months):
- Pensions and pension schemes
- Right to non- compulsory training provided by the employer.
- Disciplinary and grievance procedures.
If company fails to provide within 2 months employee can apply to tribunal to get info and they can also offer compensation if there was an issue with the written statement.
Implied duties
Implied through common law
May justify dismissal of an employee
May justify a claim for wrongful / unfair dismissal against employer.
Not to misuse confidential information - will not necessarily cease when employment ceases, when someone writes or invents the patent usually belongs to the employer.
Exercise reasonable care and skill - reasonable competence, care and skill bearing in mind degree or skill competence employee has.
Personal service - contract of employment is personal and may not delegate duties without employers consent.
Trust and confidence - mutual obligation, based on respect and consideration for each other, employee should not make unjustifiable complaints.
Employers implied duties (common law)
Pay remuneration - express provision to pay a fixed rate or nothing during a lay off
Indemnify employees - idemify employees against expenses and losses incurred in employment.
Health and safety- protect employees against reasonably forseeable risk
1. safe plant and appliances
2. Safe system of work
3. Reasonably competent fellow employees
Provide work - generally, employer will not be liable for failing to provide work as long as wages are paid (liability more likely when someone is paid on commission)
Provide accurate reference - does not have a duty to provide, but if he does with reasonable care and skill to give a fair impression, can’t give info not known to employee e.g customer complaint
Don’t disclose confidential - unless consent
Mutual trust and confidence - treat employee with due respect and consideration
Sustainability regulations - all laws and regs relating to sustainability - equality act, employment rights act, environment act, companies act.
Employers implied duties - legislation
Sustainable objectives such as family friendly & work life balance
Pay:
- Equal pay equal value e.g sick pay, holiday pay, working hours.
- National min wage act - min hourly rate, depends on age - social sustainability
H&S: general duties ensure good health, welfare as far as practicable
- Maintain plant and systems are safe and without risk
- Safe use, handling and storage of articles/ substances
- adequate info instruction, training and supervision.
- Safe places of work, ensure adequate access in and out
- Breach UNLIMITED FINE AND OR UP TO 2 YEARS IMPRISONMENT - any director / officer
Social security and work life balance:
- National insurance - class 1 paid on behalf of employees
- Flexible working - employee has right to apply for changes relating to hours / time place and not be reasonably refused.
- ante-natal care - can’t be reasonably refused time off
- maternity leave - 52 weeks if 15 weeks notice of due date given
- Materinity pay - 39 weeks leave
- Paternity leave - one or two consecutive paid leave if 15 weeks given of due date, must have served 26 weeks of employment at that date.
- Paternity pay - subject to a max
- Shared parental leave and pay - materinity is a min of 2 weeks but can be shared after that with partner.
- adoption leave and pay - maternity and paternity rights as above.
- Parental leave - one year service who have parental responsibility can have 18 weeks unpaid to care for each child up to 18 years old.
- parental bereavement leave - loose a child under the age of 18 (including stillbirths after 24 weeks) are entitled to 2 weeks paid leave.
Equality - equality act 2010 - protected characteristics
Employees and contract workers
Protected characteristics:
- Age
- Disability
- Sex
- Race
- Religion or belief
- marriage / civil partnership
- pregnancy or maternity
Equality - equality act 2010 - objective justification
Can avoid liability if proportionate needs of meeting a legitimate sim.
- Discriminatory effect is significantly outweighed by benefits of achieving sim (no reasonable alternative)
- Legitimate aim includes business needs / efficiency, health and safety, training requirements.
Notice provisions
General rule, employee should not be dismissed without adequate notice being given, other considerations:
- terms of contract of employment
- common law requires reasonable notice being given which depends on employees position and nature of the job
- Statue gives min period of notice based soon length of service:
1. Over or equal to a month but under 2 years - not less than 1 week
2. Over of equal to 2 years but under 12 - not less than 1 week of continuous employment
3. Over 12 years - not less than 12 weeks.
Unfair dismissal
Employment rights act and employment act.
Employee may bring a claim from employee tribunal
Claiming:
1. Must show they are qualifying, not qualifying…..
- Employed to work outside the Uk
- Taking unofficial industrial action
- Claim is not made within 3 months
- Must show they have been dismissed:
- Non renewals of a contract for a fixed term or a specific task
- Termination by employer with or without notice
- Constructive dismissal - employer repudiates some essential term of contract by complete change in employee duties and employee resigns
To establish constructive dismissal:
- Employer has committed a serious breach of contract
- left because of breach
- not waived the breach therefore affirming the contract.
Examples of constructive dismissal:
- reduction in pay
- complete change in nature of job
- failure to provide a suitable working environment
- employers refusal to give an advance in holiday pay not sufficient
- Employer must show employee was dismissed for fair reason
Capability or qualifications where there is a contractual obligation to hold:
Lack of capability at time of dismissal based on….
- contract requirements
- general standard of performance of employees in that trade
- previous standard of dismissed employee
Capability - skills, aptitude, health, other physical or mental quality.
Qualification - acedemic or technical qualification relevant to employee position.
Employees misconduct….
- not necessary to prove only if the employer genuinely and reasonably believes him to be e.g. abusive language, drink abuse.
Redundancy - may claim remedies for unfair dismissal….
- Unfair selection
- Selected because of trade union membership
- should be in conformity with good industrial relations.
Good practice
- as much notice as possible
- consultation with trade untion
- variable selection criteria
- employer should ensure selection is made fairly
- employer should consider if alternative employment can be made
Statutory restriction:
- Legal restriction on ER or EE whcih prevents employment from being continued lawfully e.g struck of body of professional / loosing driving licence
Some other substantial reason: considered fair in the following cases….
- Employee married to competitor
- Employee refused to accept a change of shift working, in interests of business with agreement of large majority of other employees
- Paedophile activity risked reputation of public section substantially (even if not convicted)
- Age justified only when proportionate and objectively justified.
- Employer must show he has behaved reasonably and followed procedures.
- Have procedures been followed? disciplinary procedures or ACAS guidelines as well as warnings.
- Employer take all circumstances into consideration? E.g experience & illness
- What would a reasonable employer done? Allowed for training & improvement
FAILURE TO COMPLY BY EMPLOYEE OR EMPLOYER REDUCES OR INCREASES DAMAGES BY 25%
Dismissal for an automatically unfair reason
Law affords more protection for vulnerable employees.
Employee will be protected by act even if not employed for min period (2 years)
Example:
- Pregnancy or pregnancy related illness
- Conviction under the Rehab of Offenders act
- Trade union memberships or activities
- Dismissal on transfer of an undertaking (unless economic, technical or organisation reasons justifying dismissal)
- Taking (or proposing) steps to protect himself when believes there to be serious and imminent danger.
- Seeking to enforce statutory rights e.g min wage
- Protected disclosure (whistleblowing) under Public Interest Disclosure Act.
Remedies for unfair dismissal
Reinstatement (rare) - employee can return to old job without a break of continuance.
Re-engagement (rare) - new employment with employer on terms that are comparable with old job or are suitable.
Compensation (subject to a max updated each year):
- Basic award - calculate on age & length of service.
- Compensatory award - amount tribunal considers just and equitable e.g loss of earnings, expenses and benefits, breach of contract - duty on employee to mitigate loss.
- Additional award - when employer does not comply with an order for reinstatement / re engagement and does not show it was impracticable to do so, 26-52 weeks pay.
Wrongful dismissal
Employer dismisses employee in breach of an express / implied term of employment contract by giving inadequate or no notice.
Must mitigate loss and sue for differences.
Some cases you can claim for wrongful & unfair dismissal.
Advantages of brining a claim for wrongful dismissal:
- No max damages
- Time limit for bringing claim is 6 YEARS from breach (3 MONTHS for unfair dismissal)
- No min period of employment.
Summary dismissal (without notice):
Justified in limited circumstances.
Test is a question of fact, will depend upon standards of ordinary people at the time of dismissal.
Examples
- Wilful refusal to obey a lawful and reasonable order e.g swearing
- Gross misconduct in connection with business (or outside if grave) e.g acceptance of secret commission, disclosure of confidential information, assault on fellow employee
- Dishonesty where employee was in a position of trust.
- Gross or persistence negligence e.g pilot landed plane in a way that caused alarm among passengers and crew.
- Breach of an express term where employee is aware that a breach will not be tolerated e.g airline pilot drunk.
Remedies for wrongful dismissal
Normal contract law applies here so damages are based on what employee would have earned if wrongful dismissal has not applied.
Earnings and benefits which would have been paid if proper notice had been given or if breach of contract has not taken place.
Employee has a duty to mitigate loss.
Rare cases - application may be made for an injunction to restrain breach or contract to what the employees rights are
Both are equitable and it is up to court.
Redundancy
Employee may claim min stat redundancy payment, calculated similar to basic award.
Treated as redundancy if the only or main reason is that:
- Employer has ceased or intends to cease to carry on business for purpose whcih the employee has been employed.
- Employer has ceased or intends to cease to carry on business where employee was employed.
- Requirements of business for employees to carry out work if a particular kind or to carry out work in place where employed have ceased or diminished.
WHETHER DISMISSAL OCCURS IN A REDUNDANCY SITUATION IS A QUESTION OF FACT.
Redundancy - procedure
- Employee must show they meet these conditions
- Employed continuously for 2 years
- Must be an employee
- Bring the claim within 6 MONTHS of termination.
- Employee must show they have been dismissed by reason of redundancy.
Not entitled to payment if:
- Guilty of misconduct which justifies dismissal
- Refuses offer to renew his contract
- Unreasonably refuses offer of alternative employment…..
Offer of new employment:
- Before making redundancies employer should consider if he can offer suitable alternative employment.
- If employee unreasonably objects they will not get a redundancy payment
- Must be in the same capacity, terms, place on same terms and conditions as original employment, must not perceived as lower in status.
- Entitled to a 4 week trial period, if either party terminates in trial period it is treated as expiry date of original employment entitled to redundancy.
