BPP University College Of Professional Studies Limited (BPP)
Great summary of the Employment Law module at BPP. Runs through SGS by SGS of everything that is examinable. It also has structures to all possible exam structured questions for example unfair dismissal and discrimination. Tried to make document as short and snappy as possible but certainly has eno...
BPP University College Of Professional Studies Limited (BPP)
LEGAL PRACTICE COURSE
Employment Law
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SGS 1- EMPLOYMENT STATUS AND WORKING TIME:
Status Q structure:
1. Definition of employee= s230 ERA (contract of service)
2. Ready Mix Concrete:
-Individual must provide personal service in return for pay (cant send
somebody else)
-Individual be subject to some control by employer (cant choose way do
work freely)
-Other factors are consistent with contract of service (holiday pay, sick
pay, integration into business and exclusivity)
3. Mutuality of obligation:
-Obligation on the company to provide work
-Obligation on individual to perform the work personally (if no mutuality
then not likely to be employee)
4. Control test
-Employee usually subject to control: where they work, how long they
work and the work they have to do (greater control more likely to be
employee)
5. Personal service test:
-Requires individual complete the work personally
-If can send substitute to complete the work at anytime then unlikely to
be employee
-If can send substitute because employee unable to attend and choice is
limited then may still be employee
6. Other factors:
-Integration- is employee part of company: entitled to holiday pay,
pension, staff training, discipline procedure, uniform, company email,
PAYE system or does they provide invoice or service
-Economic reality: look at degree of financial risk individual, who
provides material/equipment, can individual work elsewhere
-Label (not determinative)- how have parties descried their relationship
Working time regulations Q structure:
1. Do the Regs apply?
-Worker= employees/those giving personal service other than
client/customer (includes agency/freelancers)- Reg 2
2. What is the issue?
-48hr working week (worker should not work more than 48hrs per week
on average over period of 17 weeks- can opt out by written agreement)-
Reg 4
, -Paid annual leave (all workers entitled to 5.6 weeks’ paid annual leave
(28 days for full time workers (including 8 bank holidays))- Reg 13 and
13A
-STRINGER v HMRC: entitlement to paid holiday does accrue
whilst an employee is absent on sick leave AND workers cant take
paid holiday during periods of long term sick leave AND after
termination of contract, workers entitled to a compensatory
payment to reflect accrued but untaken holiday leave (even where
worker was on sick leave for the full holiday year)
-Daily rest (must be entitled to 11 consecutive hours rest in each 24hr
period)- Reg 10
-Weekly rest (entitled to a rest period of 24hrs in each 7 day period)- Reg
11
-Rest breaks (after 6 hours at work, a worker is entitled to a rest breach
no shorter than 20 minutes)- Reg 12
-Night workers (if worker is defined as night worker (Reg 2) than must
not work no more than 8 hrs in every 24hrs during a 17 week period)-
Reg 6
-Reg 20- unmeasured working time (where employer is senior then not
subject to 48hr working week/daily rests)
-Reg 21- special cases
3. Apply to the facts
4. Remedies
-Limits (Reg 4) - claim to HSE (Reg 28)-enforcement notice could lead to
criminal sanctions under Reg 29
-Rights (Reg 10,11,12,13)- ET- declaration and compensation under Reg
30
5. Practical solutions
e.g opt out of 48hr working week (Reg 5)
6. Any more info needed?
e.g if on call (are they required at workplace), how long will 48hr week
last for (need to average over 17 weeks)
SGS 2- THE CONTRACT OF EMPLOYMENT:
Express terms:
Written particulars- must be express written terms
-Section 1-7B ERA
-If breach of s1/s4- s11 allows employee to apply to ET and they can
confirm particulars provided, amend them or substitute then (s12 (2))
-Under s38 (2)-(4) EA can only claim s1/s4 if also bringing another claim
to ET (UD or discrimination)
Restrictive covenants- prevent employee working for competitor,
poaching customer or staff:
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