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Summary Distinction Level LPC Employment Law Elective Notes
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Summary of the key chapters needed for the exam.
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Express and Echo Publications v Taton- driverSOURCES OF EMPLOYMENT LAW could send any 3rd party replacement so no
personal service
Common Law Macfarlane v Glasgow City Council- was
Contract of employment first point of reference
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?
o Profit from management of tasks?
Self-Employed o Hire help?
work under a contract for services
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?
o How have parties described relationship?
Workers o Subject to disciplinary/ grievance?
Reg 2 WTR
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 Uber Case- uber drivers are workers
1) Personal service Agency Workers
o If has unfettered right to send someone in their
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 end user, end user pays a fee to the agency and from
dismissal that fee the agency then pays the worker
Dacas- could be an employee of end user because
Employees had to belong to someone
S230(1) ERA 96 ‘is or has been working under a
contract of service or a contract of employment’ James v Greenwich LBC- retreated; rare to employ a
Ready Mixed Concrete test- no right answer contract where isn’t one
1) Personal service; carry more weight Smith v Carillion- confirmed James
o Requires an individual to perform work particulars they were not entitled to receive in
personally
o Limited power to appoint substitutes is not writing previously.
inconsistent
, timeframe, or the worker disagrees with any of the
particulars given, the worker can apply to the
Agency Worker Regs 2010 Employment Tribunal (within three months of the
Reg 12-13- from first day of an assignment, an termination of employment) pursuant to s.11
agency worker must be able to access a hirer Prior to 6 April 2020
collective facilities and amenities (i.e. canteen and Only employees need to be supplied w/ these not
creche) and must have access to knowledge about job workers
vacancies
Reg 5- after 12-week period w/same hirer, entitled to EXPRESS & IMPLIED TERMS
same rights, pay, benefits, rest periods and holidays
as comparable employees/ workers
Reg 17-18- may bring claims if day one rights and Express Terms
equal treatment rights infringed; w/in 3 months Written Particulars
S1-7 ERA 1996 sets out minimum particulars which
Zero Hour Contracts are required to be provided to employees and workers
Questions over whether they are a worker or not but in writing; FIRST DAY OF ENGAGEMENT
employer is still responsible for the health and safety
of workers on their contracts Letter okay- s7(1)(a)
S153 SBEEA 2015 sets out a ban on exclusivity 1. Identity of parties
clauses 2. Date on which employment began
S27A(3) ERA provides zero-hour contract is 3. Scale or rate of pay and when it is paid
unenforceable if it prohibits a worker from:
o doing work or performing services under another 4. Working hours and WTR
contract or under any other arrangement, or 5. Holidays and holiday pay
o doing so without the employer’s consent. 6. Sickness and injury/ sick pay
7. Pensions and pension schemes
Contract of Employment Compliance w/ s1-7 ERA 8. Note saying contracting-out provision in force
Workers staring on or after 6 April 2020 9. Notice
must be provided with a statement of written 10. Title/ description of work
particulars containing the information set out in s.1 no
later than the date on which the employment begins. 11. Temporary, or fixed term and end date
s.3 (1) - must also be provided in the same document: 12. Place of work, address and other locations
o a person to whom the worker can appeal if they 13. Collective agreements
are dissatisfied with any disciplinary decision 14. If outside UK work for >1 month, period
relating to them; and
o a person to whom the worker can apply for the 15. Disciplinary rules
purpose of raising a grievance 16. Name of person apply to for disciplinary
s1(4) and s3(1) must also be provided but can be 17. Further steps regarding disciplinary
referred to the provisions of another document (s2(1)) N.b. 7,7,9 &15 can be inc in another reasonably
o sick leave and pay accessible doc they are referred to (s2(2) & (3))
o any other paid leave
o pension provisions Where can they be found?
o training entitlement provided by the employer Disciplinary and grievance procedures
o info about disciplinary and grievance Sickness and absence policies
procedures Bonus schemes
If there are no particulars to be provided under any Employee handbook
head, this fact must be stated in the written particulars Implied Terms
s.2 (1) Sources
s.2 (4) information in relation to pension provision, Statute, customer and practice/ past conduct, the
collective agreements, training and disciplinary and officious bystander test, business efficacy
grievance procedures can be provided in instalments Statute
up to two months after the beginning of employment. o S86 implied minimum notice
S4, if any material changes are made to the written o Equal pay
particulars after they have been provided to the o WTR 1998
worker, the employer must provide the worker with a
Custom and practice
written statement of changes within one month of the
o A term implied into the contract by virtue of
change. This also applies to changes made to the
custom in the workplace/ industry
particulars of employees employed prior to 6 April
Dismissal and Re-engagement
2020, even where the changes relate to
If employee refuses new can bring a claim for both
If the employer fails to supply the written particulars
wrongful and unfair dismissal
, (or a statement of changes) within the requisite
Post-Termination Restrains
Garden Leave
officious bystander’ test Arises where notice has duly been given by either
o A term so obvious that the parties would have party the employee continues to be paid but is not
agreed to it from outset had they been asked required to attend the workplace
Business efficacy test Cannot work for competitor during period
o A term is implied to make the contract workable Some contest it and has to be enforced through a
garden leave injunction
Duties owed by the employer
Duty to pay
o If the contract is ‘silent’ then gives the worker to Implied confidentiality clause
right to reasonable renumeration Duty is much narrower and duty not to disclose info
o Worker can also claim under National Minimum which is
Wage Act if he is paid below min wage I. Trade secret
£8.36 21-22
£8.91 S19A living wage 23+ II. So highly confidential it required the same
Duty to provide work protection as a trade secret
o William Hill v Tucker Definition of a ‘trade secret’
I. Duty may arse where there is work to be o Faccenda Chicken LTD v Fowlder- necessary to
done
II. The employee is ready and willing to do it examine all the circumstances, in particular:
III. There is a need for frequent practice of The nature of employment and nature of
skills employee
Duty to take reasonable care for employees health and Nature of info (could it be gotten from
safety
o Under CL, supplemented by Health and Safety at other sources or public domain0
Work Act 1974 Whether employer impressed on employee
o Physical and mental health and inc the provision of the confidentiality
a reasonable working environment Where the info could easily be isolated
o Employees can also sue the employer in negligence from other info which the employee was
if they suffer a work-related injury or illness
Duty to take reasonable care in giving references free to use and disclose
o An employer is not obliged to provide a reference at
all Express Confidentiality clause
o If given must be true, fair and accurate Can go no further than the implied term
o No obligation for detail or to be comprehensive
(Spring v Guardian Assurance PLC)
Duties owed by the employee Restrictive Covenants
Duty to provide personal service All are prima facie void and unenforceable unless
o There is a personal obligation to perform work
o Must not deliberately disable themself they:
Duty to work with reasonable care, skill and diligence 1. Protect a legitimate interest of the bus and
o Reasonably competent to do the job 2. Go no further than is reasonably necessary
Duty of good faith and confidence to protect that legitimate interest
o Serve employer faithfully and not act against the Non-comp
interests of the business
o Honest and not disclose confidential info o Prevent ex-employer from: working for
Duty to obey the lawful orders competitor; or setting up comp co
o Order within the scope of the contract o Most onerous restraint
Mutual duty common to both Non-dealing
Mutual duty of trust and confidence
o Malik v BCCI- employer will not act without o Prevents ex-employee dealing with
reasonable cause in a manner that is likely to customers (even if they approached ex-
damage the relationship employee)
Any breach of this can allow the employee to resign Non-solicitation (poaching)
and claim that they have been constructively
dismissed o Of customers
Breach o Of staff
2-4 weeks pay
Dependent right: arises if another claim (s38 EA) PIL- Any employer may not pay a worker in lieu of
Varying Contract of Employment
Unilateral variation by the employer permitting him to take annual leave, except on
Employee may simply continue to work under the termination of his employment (Reg 13(9)(b))
new term; loses right to bring a claim for breach of Roll over
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