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BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Employment Law
All documents for this subject (3)
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By: umehugochukwu • 3 year ago
By: Blumerzz • 3 year ago
Thanks for the review! Good luck with your exam. I always enjoyed Employment!
By: joeljoseph • 3 year ago
By: Blumerzz • 3 year ago
Thanks for the review Joel! Hope the exam went well
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SGS 1 – STATUS + WORKING TIME REGULATIONS (3½)
Contract of Employment
Governed by ss 1 – 7B ERA 1996
Employees = must be provided with statement of written particulars of employment within first
2 months of employment (key difference from workers)
ESTABLISHING WHETHER PERSON IS ‘EMPLOYEE – 4 STAGE TEST
Always start with s230(1) ERA 1996: Definition of ‘employee’
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and NI
1) Personal Service
Employee must carry out work personally in return for remuneration
Substitution clause MAY negate MOO – right to substitute may be fettered if RESTRICTED
o MacFarlane v Glasgow City Council: If right to substitute is fettered = employee
o Express & Echo Ltd v Tanton: if right to substitute is unfettered = self employed
2) Mutuality of obligation (Carmichael v National Power plc)
Employer HAS obligation provide work
Employee HAS obligation to accept and perform work
3) Control Test
Greater operational control employer has = more likely employment relationship exists
Considerations of work = what /when / where / how must work be carried out
4) Other factors
Economic reality
o Labels = “contract states X but this is not conclusive”
o Does individual take a degree of financial risk
o How is individual paid / who pays individual:
Agency = indicates self-employed
Invoice = indicates self-employed
payroll (PAYE) = indicates employee
Tax = self-assessed / HR
o Who provides materials / equipment
o Does individual hire own workers / prohibition
o Is individual paid holiday / sick pay
Integration
o Does individual wear uniform / appear to outside world to be employee
o Is employee ‘part + parcel’ of organisation? (e.g. sick pay / subject to disciplinary +
grievance procedure / training / policies / access to facilities)
Hall v Lorimer: accumulation of details to “paint a picture”
Casual Workers
Carmichael v National Power plc
Aslam & Farrar v Uber
,Agency Workers
James v Greenwich London Borough Council
Alstom Transport v Tilson
SELF EMPLOYED EMPLOYEE TEST
FINAL CONCLUSION – with reasons by applying findings
WORKING TIME REGULATIONS 1994
o N.B. All employees are workers
o N.B. individual must agree to do / perform work personally + work done cannot be for client
1) Do Regs apply?
Reg 2: Definition of ‘worker’
o Individual who has entered into or works under:
a) Contract of employment; or
b) Any other contract, whether express / implied and whether oral / in
writing, whereby the individual undertakes to do or perform personally
any work
Apply WTR definition (e.g. contact of employment)
2) Issue + Statutory Ref (is there a breach?)
WORKING TIME
Reg 4(1): max 48 hours per week on average over a reference period of 17 weeks
o Employer must take ‘all reasonable steps’ to protect health
o Reg 4(1) + 5: Can get employee to sign opt out– must be:
Voluntary
In-writing
Method to opt in (cannot force to opt in)
Reg 6: night work
Reg 10(1): daily rest periods
o Not less than 11 uninterrupted hours in each 24 hour period
Reg 11(1): weekly rest periods
o Not less than 24 hours in each 7 day period
Reg 12(1)(3): daily rest breaks
o Must be given when working time is more than 6 hours
o Rest must be taken away from work station
Reg 20: Exclusion – if senior management and can make own decision (e.g. determines
the work load themselves)
ANNUAL LEAVE
Reg 13: paid annual leave
, o Reg 13(1): 4 weeks (20 days) + Reg 13A (1.6 weeks = 8 days for Bank Holidays)
= TOTAL minimum 28 days (inclusive of bank holidays)
o Reg 13(9): must take holiday and may not be replaced by a payment in lieu
unless employment is terminated
o Pro-Rata AL = 3 x 5.6
o N.B. Part-Time Workers (Prevention of Less Favourable Treatment
Regulations 2000): PT worker cannot be treated less favourably than full time
worker:
employer must establish how many bank holidays are missed (e.g. Wed
– Fri rather than Mon – Wed) then ADD to Annual Leave
Stringer v Revenue & Customers Commissioners
o Entitlement to paid holiday DOES accrue whilst employee is absent on sick
leave BUT
Workers may not take holiday while on sick leave; AND
Post-termination of contract, workers are entitled to compensatory
payment to reflect accrued but untaken holiday leave, even if worker
was on sick leave for full holiday year
3) Apply facts
4) What other information is required
5) Remedies (Reg 30)
ET enforces claims for rest break rights + annual leave
Health / Safety Executive monitors 48 hour week – criminal sanctions (Schedule 3)
6) Practical Solutions
Reassess work load
Come into work later
AGENCY WORKERS REGULATIONS 2010
Reg 3: Meaning of ‘agency worker’
Agency workers enjoy same basic working conditions as full-time staff:
o FROM FIRST DAY RIGHTS
Reg 12: Agency worker has rights to access collective facilities
Reg 13: Agency worker has rights relating to access to employment
being informed of relevant vacant positions
o AFTER 12 WEEKS RIGHTS
Reg 7(1) + (2): Must work in same role with same employer for 12 cont. weeks
Reg 5: entitled to receive same basic working / employment conditions:
Conditions of comparable worker
Relevant terms / conditions relate to Reg 6(1)(a)-(f)
Remedies
Claim against HIRER
o Reg 12 + 13
Claim against AGENCY OR HIRER
o Reg 14: Liability of temporary work agency / hirer
, o Reg 18: Can bring claim to ET if right infringed
o Reg 18(4): Must bring claim within 3 months
ZERO HOUR CONTRACTS
Contract in which the employer does not guarantee any work
o Usual test applies – if standard terms for zero hours:
NO employment relationship as MOO will be lacking; BUT
May be a WORKER protected by WTR
s153 Small Business, Enterprise & Employment Act 2015
o EXCLUSIVITY CLAUSES = banned / unenforceable
s27A(3) ERA 1996: any provision is unenforceable if it prohibits worker:
o doing work / performing services under another contract / other arrangement
o doing so without the employer’s consent
s27B ERA 1996 / Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015
o Facilitates claim for detriment / automatic unfair dismissal if reason is that worker (or
employee) has breached an unenforceable exclusivity terms
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