Employment Law Flashcards
What does the employment rights act 1996 define the three main categories of employment as
The Employment Rights Act 1996 (ERA 1996), Section 230, defines three main categories of employment status in the UK:
- Employees
- Workers
- Self-Employed
What do employees work under
Employees work under a contract of service and are entitled to full employment rights
What do workers provide
Workers provide services personally but do not operate as independent businesses
What are workers employment rights like
Workers have limited employment rights
What do self-employed people work under
Self-employed people work under a contract for service and are considered independent contractors
What are self-employed individuals employment protection like
Self-employed individuals have little to no employment protection
What happened in Uber BV v Aslam [2021] UKSC 5
Uber BV v Aslam [2021] UKSC 5 the Supreme Court ruled Uber drivers were found to be workers, not self-employed contractors
What does a contract of service provide
A contract of service provides full employment rights
Who does a contract of service include obligations from
A contract of service includes obligations from both employer and employee
What does a contract for service involve
A contract for services involves an independent contractor providing services to a client
What are the different tests for establishing employment status
The different tests for establishing employment status are:
- Control Test
- Integration Test
- Economic Reality Test
- Mutuality of Obligation Test
What does control test consider
Control test considers the degree of control the employer has over the worker
What is an individual likely to be if the employer dictates how, when, and where the work is done
If the employer dictates how, when, and where the work is done, the individual is likely to be an employee
What is an individual likely to be if they have autonomy over their work
If the worker has autonomy over their work, they are likely self-employed
What does the integration test assess
The integration test assesses how integral the worker is to the business
What is an individual likely to be if they’re a core function of the company
If the work is a core function of the company, the individual is more likely to be an employee
If an individuals work is peripheral what is there employment status
If the work is peripheral, the person may be self-employed
What does the economic reality test consider
The economic reality test considers whether the individual carries financial risk, sends invoices, or has tax deductions made
What does the mutuality of obligation test examine
The mutuality of obligation test examines whether the employer is obliged to provide work and whether the worker is obliged to accept it
What are the expressed terms in a contract
Express terms in a contract are:
- Rate of pay
- Hours of work
- Holiday entitlement
- Place of work
- Job role and responsibility
What are implied terms
Implied terms are not written but legally expected
What are the different implied terms in contracts
Different implied terms in contracts are:
- Duties of the employee
- Duties of the employer
What are duties of the employee
Duties of the employee are:
- To obey lawful and reasonable instructions
- Exercise reasonable care and skill in performing duties
- Maintain fidelity
What is fidelity
Fidelity means to act in the employer’s best interest and avoid conflicts of interest
What are the duties of the employer
Duties of the employer are:
- Provide work and support
- Ensure a safe working environment
- Act with mutual trust and confidence
Who can claim unfair dismissal under the employment rights act 1996
Only employees can claim unfair dismissal under the Employment Rights Act 1996
What do employees have to have to be eligible to claim unfair dismissal
To be eligible, an employee must have at least two years of continuous employment
What must dismissal be
Dismissal must be fair and full under permissible reasons
What does the equality act 2010 protect
Equality Act 2010 protects employees, workers, and self-employed individuals from discrimination
Where are employment disputes heard
Employment disputes are heard in the employment tribunal
What does the employment tribunal resolve
Employment tribunal resolves:
- Unfair dismissal claims
- Discrimination cases
- Wage disputes
- Breach of contract claims
What different ways can termination of employment contract occur
The termination of an employment contract can occur in several ways, including dismissal by the employer, resignation by the employee, or redundancy
What does Section 86 of the Employment Rights Act 1996 give employers and employees
Under Section 86 of the Employment Rights Act 1996 (ERA 1996), both employers and employees are required to give notice before terminating a contract
What is the exception to Section 86 of the Employment Rights Act 1996
The exception to Section 86 of the Employment Rights Act 1996 is summary dismissal
What is summary dismissal
Summary dismissal is instant dismissal for gross misconduct
What is the notice period for less than 1 month of employment
Less than 1 month of employment requires no notice period
What is the notice period for 1 month to 2 years of employment
The notice period for 1 month to 2 years is 1 week
What is the notice period for 2 years of employment
The notice period for 2 years of employment is 2 weeks
What is the notice period for 3 years of employment
The notice period for 3 years of employment is 3 weeks
What is the notice period for 4 years of employment
The notice period for 4 years of employment is 4 weeks
What is the maximum number of notice period weeks
The maximum number of notice period is 12 weeks which is after 12 years of work
What are the different types of dismissal
The different types of dismissal are:
- Summary dismissal
- Wrongful dismissal
- Unfair dismissal
When does summary dismissal occur
Summary dismissal occurs when an employee is dismissed immediately without notice due to gross misconduct
What must employers follow for summary dismissal
Employers must still follow fair procedures, including an investigation and disciplinary process
When does wrongful dismissal occur
Wrongful dismissal occurs when an employee is dismissed in breach of their contract
What are the different types of wrongful dismissal
The different types of wrongful dismissal are:
- Not receiving the agreed notice period
- Not following contractual disciplinary procedures
- Unjustified early termination of a fixed contract
What is the remedy for wrongful dismissal
A claim for wrongful dismissal seeks damages based on lost earnings during the notice period
Where is unfair dismissal in the employments right act 1996
Unfair dismissal is under section 98 in the employments right act 1996
What does unfair dismissal protect
Unfair dismissal protects employees from unjustified termination
What three ways might unfair dismissal occur
Three Ways in Which Unfair Dismissal May Occur:
- The employer terminates the contract without fair cause
- A fixed-term contract is not renewed without justification
- The employee resigns due to constructive dismissal
When does constructive dismissal occur
Constructive dismissal occurs when an employee resigns because the employer fundamentally breaches the contract
What did Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 establish
Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 established that an employer’s conduct must be so severe that it effectively forces the employee to resign
What must an employee prove to succeed a constructive dismissal claim
To succeed in a claim, the employee must prove:
- The employer committed a serious breach of contract
- The employee resigned in response to the breach
- The resignation was not delayed
What are the different automatically unfair reasons for dismissal
Automatically Unfair Reasons for Dismissal:
- Family-related reasons
- Health & Safety
- Trade Union membership
- Flexible working requests
- Whistleblowing
- Accompanying a worker to a disciplinary hearing
- Asserting a statutory right
What are the remedies for unfair dismissal
Remedies for unfair dismissal are:
- Reinstatement
- Re-engagement
- Compensation
What is reinstatement
Reinstatement is restoring the employee to their job
What is re-engagement
Re-engagement involves giving the employee a different job within the company
What are the different types of compensation
The different types of compensation are:
- Basic award
- Compensatory award
What is basic award based on
Basic award is based on salary and years of service
What is compensatory award compensation like
Compensatory award is for lost wages and future loss of earnings
What does section 98 of the employment rights act 1996 state
Section 98 of the employments rights act 1996 states about fair reasons for dismissal
What are fair reasons for dismissal
Fair reasons for dismissal are:
- Capability
- Conduct
- Redundancy
- Statutory Bar
What is capability
Capability is poor performance, lack of qualifications, long-term illness
What is redunsancy
Redundancy means businesses no longer needs the employee’s role
What is statutory bar
Statutory bar is when an employee cannot legally perform the job
What’s a fair process for redundancy
A fair process for redundancy is:
- Fair selection criteria
- Consultation process
- Redundancy pay
What does a fair selection criteria mean
A fair selection criteria means employees must not be selected based on age, gender, race, pregnancy, or disability
What is a fair selection criteria protected under
A fair selection criteria is protected under the Equality Act 2010
What should the selection for redundancy be based on
Selection of redundancy should be based on skills, qualifications, and performance
What does consultation process mean
Consultation process means employers must consult affected employees before making redundancies
Who gets redundancy pay
Redundancy pay is for employees with 2+ years of service
What is statutory redundancy pay based on
Statutory redundancy pay is based on age, length of service, and weekly pay
What are employee rights during a redundancy
Employee rights during a redundancy are:
- Notice period
- Time off to find a new job
- Right to redundancy pay
- Option to be offered an alternative role
- Right to claim unfair dismissal if redundancy process is unfair
What do dismissals that involve discrimination violate
Dismissals that involve discrimination violate the Equality Act 2010
What does the equality act 2010 protect employees based on
Equality Act 2010, which protects employees from being dismissed based on:
- Age
- Disability
- Gender reassignment
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual Orientation
What must employers provide under the Health & Safety at Work Act 1974
Under the Health & Safety at Work Act 1974 employers:
- Must provide a safe working environment.
- Must conduct risk assessments.
- Failure to comply can lead to criminal liability or civil claims for compensation
What do employees dismissed for raising health and safety concerns have the right to claim
Employees dismissed for raising health and safety concerns have the right to claim automatically unfair dismissal
