Employment law - Employment Rights Act 1996

Question 1

Why it is important to recognise the contract of employment

Answer 1

Some may avoid employment contracts for tax and other reasons, but during adversity try to benefit from the protection provided by ERA 96 - comes down to benefits you can potentially receive

Question 2

What is the beneficial and legal difference between self employed and employee

Answer 2

More rights and protection for an employee, as employer cannot take an advantage of the employee, but self-employed cannot enjoy these benefits

Question 3

Define an employee

Answer 3

An individual who works or has entered into a contract of employment

Question 4

How is a contract defined between employee and employer?

Answer 4

A contract of services, either express or implied.

Question 5

What is a “multiple test”

Answer 5

It is how courts determine is a person an employee or a contractor, they look at certain factors that need to be present at the eyes of court and all the other relevant characteristics of the relationship to determine if they are consistent with a contract of services.

Question 6

Describe “mutuality”

Answer 6

Obligations to fulfil the contract (whatever it takes to fulfil them). There needs to be a minimum level of mutual obligations between parties.
e.g. OBLIGATION an employee needs to establish the employer is under an obligation to provide work to them and that they are under equivalent obligation to perform that work.

Question 7

What applies to most cases of employment

Answer 7

-Work must be performed personally by en employee in exchange for wage while under supervision of the employer, no right to delegate!

Question 8

What applies to most cases of contractor

Answer 8

• Ability to delegate, the ability to arrange for a substitute to perform the work will usually defeat any claim of a contract of employment.
• Bears the financial risk
• Provides own equipment
• Pays their own taxes

Question 9

What are other provisions of the contract that align with claim for employment? (8)

Answer 9

• Fixed hours of work
• Eligibility for sick or maternity pay
• Provision of pension scheme
• Disciplinary procedures
• Other similar obligations
• Employer bearing financial risk
• Employer provides equipment and tools
• Employer pays the tax and national insurance

Question 10

Tell about workers rights under ERA 1996

Answer 10

Statutory rights that an employee is entitled to, some statutory rights go further than the benefit “workers”, a wider category which includes employees and also the others who work under a contract for service (the self-employed)

E.g. Working time rights, paid annual leave, discrimination laws

Question 11

Tell about agency workers and their rights

Answer 11

Often exploited, the agency status the workers are deprived basic employment rights which require employee status.

LACK OF MUTUALITY is the reasons which e.g. unfair dismissal cases fail, the agency assumes no obligation to offer work, and if offered, no need for it being accepted or performed.

Question 12

Tell about the terms and conditions of an employment

Answer 12

Not an contract itself, written statement of particulars!

Under ERA 96, an employer is required to provide a written statement of employment particulars to an employee within 2 months of employment commencing.

Question 13

What does a contract need to contain? (11)

Answer 13

DOES NOT ITSELF PROVE EMPLOYEE/EMPLOYER RELATIONSHIP

• Names of parties
• Date when employment began
• Remuneration details, wages, bonuses
• Hours of work
• Terms and conditions in relation to holidays, sick pay, pension
• Notice entitlement
• Job title of description of duties
• Place of work
• Any end date if a fixed term contract
• Details of any collective agreements
• Details of disciplinary procedures

also e.g. union representation rights, legal representation rights or do they provide counselling or health benefits

Question 14

Tell about collective agreements

Answer 14

A further source of terms and conditions. These agreements are usually made by or on behalf of one or more trade unions or associations. Such agreements by themselves are not enforceable by law, but they become incorporated within a contract of employment, they will be enforceable. (Usually main idea is to create good publicity in terms of being an employer as providing these benefits.

Question 15

Tell about wages

Answer 15

The contract of employment will determine the level and extent of wages payable. Employer must comply with the National Minimum Wage Act 1998, which requires a standard rate of pay per hour (subject to an annual review in October each year)

Question 16

Tell about Hours

Answer 16

Hours are regulated by the contract of employment subject to provision of the Working Time Regulations 1998. This act provides for an average weekly maximum limit of hours worked, an entitlement to paid annual leave, a daily rest of so many hours in a 24h period and the right to a rest break in a work shift of a certain numbers of hours.

Question 17

Tell about maternity rights

Answer 17

There are numerous maternity and family-friendly rights which now accrue under a contract of employment. Rights for father as well!

Question 18

Tell about Implied duties

Answer 18

Obligations that are implied by common law into every contract of employment

Question 19

Implied duties from employee side

Answer 19

The employee is expected to Give faithful service, obey lawful orders and to exercise reasonable skill and care

Question 20

Implied duties from employer side:

Answer 20

The employer is expected to provide work, reasonable care in relation to health and safety at work, to exercise discretion under the contract so as to not render the performance of the contract impossible.

Question 21

Tell about notice rights

Answer 21

The parties to a contract of employment will agree to appropriate periods of notice. If no such provision exist, a reasonable period can be implied at common law.
(There are statutory notice periods which are based on a sliding scale based on the time period of employment for the employee and the employer is entitled to at least one week’s notice(more if part of the contract of employment))

Question 22

Tell about breach of contract and wrongful dismissal

Answer 22

Can go to tribunal or court. The rights to contractual or statutory notice do not apply where the contract is terminated due to the other party’s conduct. When an employer terminates the contract in breach of contract (i.e. not giving proper notice or failing to follow disciplinary procedure) an employee will be able to claim damages for wrongful dismissal.

Question 23

Who has rights in case of unfair dismissal?

Answer 23

Section 94 of the ERA 96 confers not to be unfairly dismissed.

The right is generally restricted to employees with a certain continuous period of service.

Question 24

What is a dismissal

Answer 24

Dismissal is given a statutory meaning and extends beyond termination of employment contracts by an employer.

Section 95 of the ERA 96 provides that a dismissal arises in relation to:

• Termination to the employer, with or without notice
• Termination of a limited-term contract by virtue of limiting the event and which is not renewed
• Constructive dismissal

Question 25

What is constructive dismissal

Answer 25

This is when an employee resigns in response to a material or fundamental breach of contract by the employer. Able to raise this issue in tribunal

Question 26

What are potentially fair reasons for dismissal?

Answer 26

Unless the employee establishes dismissal for an automatically unfair reason, the employer is under onus to establish that the dismissal was for one or more potentially fair reasons.

Question 27

What are actually the potentially the fair reasons for dismissal?(5)

Answer 27

• Capability or qualifications no longer adequate to perform the role
• Conduct of employee
• Redundancy
• Inability to continue the employment without breaking a law
• Some other substantial reason of a kind such as to justify the dismissal

Question 28

What is reasonableness

Answer 28

Once the employer establishes a potentially fair reason, the tribunal must determine if the dismissal was fair or unfair. This requires regard to the circumstances in regards to the decision by the employer to dismiss, if the decision to dismiss falls within a “band of reasonable responses” the dismissal is fair

Question 29

Explain A band of reasonable responses

Answer 29

You ask other similar professions what they would do in these conditions. UNDER ERA 96

Question 30

Tell about complaints regarding these

Answer 30

A claim of unfair dismissal requires to be lodged with three months of the effective date of termination of employment, section 111 of the ERA 96

Question 31

What are the remedies for unfair dismission?

Answer 31

Compensation, reinstatement, re-engagement.

Question 32

Redundancy pay right

Answer 32

The right arises where an employee is dismissed on grounds of redundancy or in some limited situations of lay-off or short-time working.

Question 33

What does the section 155 of ERA 96 state?

Answer 33

Two years of continuous service at the relevant date of termination entitles to redundancy pay. (in other words, you have right for financial compensation based on the length of the service)

Question 34

A dismissal on the grounds of redundancy (2)

Answer 34

• Where the employer has ceased or intends to cease: To carry on the business for the purposed of which the employee was employed or to carry on business in the place where the employee was employed
• The fact that the requirements of the business has either ceased of diminished or are expected to cease or diminish

Question 35

Active Q: What is a statutory written statement of employment? What does it contain? How does it differ from a contract of employment?

Answer 35

work it out (p.7)

Question 36

Active Q: Explain the ways in which a contract of employment can be terminated

Answer 36

p.7

Question 37

Active Q: What is wrongful dismissal and how does it differ for unfair dismissal under ERA 96

Answer 37

answer p.8

Question 38

Active Q:Explain the six potentially fair reasons for dismissal under the Employment Rights Act 1996?

Answer 38

answer p.8

Question 39

Active Q: What are the three situations which amount to “redundancy” and what actions must an employer usually take to make a redundancy dismissal fair?

Answer 39

p. 9