BPP University College Of Professional Studies Limited (BPP)
BPP University College Of Professional Studies Limited
Employment Law (EL)
Summary
Summary Distinction Level Employment Law LPC Revision Notes
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Employment Law (EL)
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BPP University College Of Professional Studies Limited (BPP)
These are my revision notes for the employment law elective at BPP University for the LPC. I obtained a high distinction in this exam. The notes summarise everything you need for the exam including lecture and SGS notes as well as recommended exam structures.
BPP University College Of Professional Studies Limited (BPP)
BPP University College Of Professional Studies Limited
Employment Law (EL)
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Express and Echo Publications v Taton- driver
SOURCES OF EMPLOYMENT LAW could send any 3rd party replacement so no
personal service
Common Law
Contract of employment first point of reference Macfarlane v Glasgow City Council- was
Domestic Leg employment arrangement as the claimant had to
Min standards apply where contract is silent or gives be unable to attend (rather than preferring not
less than statute to) and the choice of substitution was limited
o Equality Act 2010 ('EA 10'); Staffordshire Sentinel Newspapers v Potter-
o Employment Rights Act 1996 (‘ERA 1996’); deciding factor was whether the individual has
o Employment Relations Act 1999 (‘ERelA 1999’); the right to provide a substitute in any
o Employment Tribunals Act 1996 (‘ETA 1996’); circumstance or only in limited circumstance
and Callaghan- it does not matter if the individual
o Trade Union and Labour Relations has never actually exercised their right to
(Consolidation) Act 1992 (‘TULRCA 1992’). provide a substitute. ET may only disregard a
Stat instruments contractual right of substitution if it is found to
o Part-Time Workers (Prevention of Less be a sham
Favourable Treatment) Regulations 2000 Hall v Lorimer- look at reality
(‘PTWR’); 2) Control test
o Working Time Regulations 1998 (as amended) o Subject to control over where they work, hours
(‘WTR’); and work they do
o Transfer of Undertakings (Protection of o More control= more likely employee
Employees) Regulations 2006 (as amended) 3) Mutuality of obligation; carry more weight
(‘TUPE’); and o Obligation for employer to provide work and
o Employment Tribunals (Constitution and Rules of employee to do the work
Procedure) Regulations 2013 (the ‘2013 o Carmichael v National Power- unlikely to be an
Regulations’). employee if not MOO
also EU leg 4) Other factors- economic reality and integration
o Degree of financial risk?
EMPLOYMENT STATUS o PAYE or invoice?
Self-Employed o Profit from management of tasks?
work under a contract for services o Hire help?
the end user pays for service or job to be done o Who provides materials and equip?
much more freedom but also more risk o prohibition on working for others?
Workers o How have parties described relationship?
Reg 2 WTR o Subject to disciplinary/ grievance?
Reg 1 PTWR o Paid holding/ sick pay?
Workers also include other individuals who undertake o Uniform?
to personally perform work or provide services, but o ‘part and parcel’ of co i.e. social events
who are not in a client or customer relationship with
Casual Workers
the end-user
1) Personal service Uber Case- uber drivers are workers
o If has unfettered right to send someone in their Agency Workers
place not a worker Agency and employer enter into a contract, agency
2) Lack of client/ customer relationship then hire the worker and assign that worker to the
Stat protection and WTR but no right to claim unfair
dismissal end user, end user pays a fee to the agency and from
that fee the agency then pays the worker
Employees Dacas- could be an employee of end user because
S230(1) ERA 96 ‘is or has been working under a had to belong to someone
contract of service or a contract of employment’ James v Greenwich LBC- retreated; rare to employ a
Ready Mixed Concrete test- no right answer
1) Personal service; carry more weight contract where isn’t one
o Requires an individual to perform work Smith v Carillion- confirmed James
personally particulars they were not entitled to receive in
o Limited power to appoint substitutes is not writing previously.
inconsistent
, timeframe, or the worker disagrees with any of the
Agency Worker Regs 2010 particulars given, the worker can apply to the
Reg 12-13- from first day of an assignment, an Employment Tribunal (within three months of the
agency worker must be able to access a hirer termination of employment) pursuant to s.11
collective facilities and amenities (i.e. canteen and Prior to 6 April 2020
creche) and must have access to knowledge about job Only employees need to be supplied w/ these not
vacancies workers
Reg 5- after 12-week period w/same hirer, entitled to
same rights, pay, benefits, rest periods and holidays EXPRESS & IMPLIED TERMS
as comparable employees/ workers
Reg 17-18- may bring claims if day one rights and
equal treatment rights infringed; w/in 3 months Express Terms
Written Particulars
Zero Hour Contracts S1-7 ERA 1996 sets out minimum particulars which
Questions over whether they are a worker or not but are required to be provided to employees and workers
employer is still responsible for the health and safety
of workers on their contracts in writing; FIRST DAY OF ENGAGEMENT
S153 SBEEA 2015 sets out a ban on exclusivity Letter okay- s7(1)(a)
clauses 1. Identity of parties
S27A(3) ERA provides zero-hour contract is 2. Date on which employment began
unenforceable if it prohibits a worker from:
o doing work or performing services under another 3. Scale or rate of pay and when it is paid
contract or under any other arrangement, or 4. Working hours and WTR
o doing so without the employer’s consent. 5. Holidays and holiday pay
6. Sickness and injury/ sick pay
Contract of Employment Compliance w/ s1-7 ERA 7. Pensions and pension schemes
Workers staring on or after 6 April 2020 8. Note saying contracting-out provision in force
must be provided with a statement of written
particulars containing the information set out in s.1 no 9. Notice
later than the date on which the employment begins. 10. Title/ description of work
s.3 (1) - must also be provided in the same document: 11. Temporary, or fixed term and end date
o a person to whom the worker can appeal if they 12. Place of work, address and other locations
are dissatisfied with any disciplinary decision
relating to them; and 13. Collective agreements
o a person to whom the worker can apply for the 14. If outside UK work for >1 month, period
purpose of raising a grievance 15. Disciplinary rules
s1(4) and s3(1) must also be provided but can be 16. Name of person apply to for disciplinary
referred to the provisions of another document (s2(1))
o sick leave and pay 17. Further steps regarding disciplinary
o any other paid leave N.b. 7,7,9 &15 can be inc in another reasonably
o pension provisions accessible doc they are referred to (s2(2) & (3))
o training entitlement provided by the employer Where can they be found?
o info about disciplinary and grievance Disciplinary and grievance procedures
procedures Sickness and absence policies
If there are no particulars to be provided under any Bonus schemes
head, this fact must be stated in the written particulars Employee handbook
s.2 (1)
Implied Terms
s.2 (4) information in relation to pension provision,
Sources
collective agreements, training and disciplinary and
Statute, customer and practice/ past conduct, the
grievance procedures can be provided in instalments
officious bystander test, business efficacy
up to two months after the beginning of employment.
Statute
S4, if any material changes are made to the written
o S86 implied minimum notice
particulars after they have been provided to the
o Equal pay
worker, the employer must provide the worker with a
written statement of changes within one month of the o WTR 1998
change. This also applies to changes made to the Custom and practice
particulars of employees employed prior to 6 April o A term implied into the contract by virtue of
2020, even where the changes relate to custom in the workplace/ industry
If the employer fails to supply the written particulars Dismissal and Re-engagement
(or a statement of changes) within the requisite If employee refuses new can bring a claim for both
wrongful and unfair dismissal
, officious bystander’ test Post-Termination Restrains
o A term so obvious that the parties would have Garden Leave
agreed to it from outset had they been asked Arises where notice has duly been given by either
Business efficacy test party the employee continues to be paid but is not
o A term is implied to make the contract workable required to attend the workplace
Cannot work for competitor during period
Duties owed by the employer
Duty to pay Some contest it and has to be enforced through a
o If the contract is ‘silent’ then gives the worker to garden leave injunction
right to reasonable renumeration
o Worker can also claim under National Minimum Implied confidentiality clause
Wage Act if he is paid below min wage
£8.36 21-22 Duty is much narrower and duty not to disclose info
£8.91 S19A living wage 23+ which is
Duty to provide work I. Trade secret
o William Hill v Tucker II. So highly confidential it required the same
I. Duty may arse where there is work to be protection as a trade secret
done
II. The employee is ready and willing to do it Definition of a ‘trade secret’
III. There is a need for frequent practice of o Faccenda Chicken LTD v Fowlder- necessary to
skills examine all the circumstances, in particular:
Duty to take reasonable care for employees health and
safety The nature of employment and nature of
o Under CL, supplemented by Health and Safety at employee
Work Act 1974 Nature of info (could it be gotten from
o Physical and mental health and inc the provision of other sources or public domain0
a reasonable working environment Whether employer impressed on employee
o Employees can also sue the employer in negligence
if they suffer a work-related injury or illness the confidentiality
Duty to take reasonable care in giving references Where the info could easily be isolated
o An employer is not obliged to provide a reference at from other info which the employee was
all free to use and disclose
o If given must be true, fair and accurate
o No obligation for detail or to be comprehensive
(Spring v Guardian Assurance PLC) Express Confidentiality clause
Duties owed by the employee Can go no further than the implied term
Duty to provide personal service
o There is a personal obligation to perform work Restrictive Covenants
o Must not deliberately disable themself
Duty to work with reasonable care, skill and diligence All are prima facie void and unenforceable unless
o Reasonably competent to do the job they:
Duty of good faith and confidence 1. Protect a legitimate interest of the bus and
o Serve employer faithfully and not act against the 2. Go no further than is reasonably necessary
interests of the business
o Honest and not disclose confidential info to protect that legitimate interest
Duty to obey the lawful orders Non-comp
o Order within the scope of the contract o Prevent ex-employer from: working for
Mutual duty common to both competitor; or setting up comp co
Mutual duty of trust and confidence o Most onerous restraint
o Malik v BCCI- employer will not act without
reasonable cause in a manner that is likely to Non-dealing
damage the relationship o Prevents ex-employee dealing with
Any breach of this can allow the employee to resign customers (even if they approached ex-
and claim that they have been constructively
dismissed employee)
Breach Non-solicitation (poaching)
2-4 weeks pay o Of customers
Dependent right: arises if another claim (s38 EA) o Of staff
Varying Contract of Employment
Unilateral variation by the employer
Employee may simply continue to work under the PIL- Any employer may not pay a worker in lieu of
new term; loses right to bring a claim for breach of permitting him to take annual leave, except on
contract termination of his employment (Reg 13(9)(b))
An employee may ‘stand and sue’- work under Roll over
protest
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