Full set of revision notes from SGS + lectures
Includes:
- discrimination
- wrongful dismissal
- unfair dismissal
- who is an employee
- unfair dismissal and redundancy remedies
- TUPE regs
- commencing a claim
SOURCES OF EMPLOYMENT LAW
- Contract law STARTING POINT
o Sets out fundamental terms of employment relationship
- Common law (domestic legislation)
o Statute has modified the harshness of basic contractual principles to take into account
personal nature of employment
o Redress serious imbalance in employer relationship
- EU legislation and case law
TYPES OF INDIVIDUALS
SELF EMPLOYED CONTRACTOR “work under a contract for services”
- End-user pays for the service to be provided or the job to be undertaken
- Do NOT benefit from most of statutory protection
- In business on their own account so those to whom they provide their services do not owe them
any obligations
WORKERS Reg 2. WTR and Reg 1. PTWR
- Elements for worker:
o Personal service if the individual has an absolute unfettered right to send a
substitute, he is not a worker
o Lack of client/customer relationship
- CANNOT claim unfair dismissal and no benefit of statutory redundancy payment
- Relevant legislation:
o Working Time Regulations 1998
o Part Time Workers Regulations 2000
o National Minimum Wage Act 1998
EMPLOYEE “works under a contract of service” (s.230 ERA 1996)
S.230 ERA 1996: ‘an individual who has entered into or works under a contract of employment
Employees benefit from all protection afforded to workers as well as additional protection:
o Unfair dismissal
o Entitlement to statutory redundancy payment
o Protection under TUPE
o Right to maternity or paternity leave and pay
s.230(1) ERA 1996: employee is not part of an excluded class
Employees on types of fixed term contracts shorter than 2 years (s.197(3))
Employees on short term contracts less than 1 month = s.1-7 do not apply (s.198)
Mariners
Police (but not prison staff)
Workers employed offshore
THE FOUR TESTS
Ready Mixed Concrete [1986] essential basic requirements for an individual to be an employee:
1. The individual must have agreed to carry out the work personally
2. The employer must exercise a sufficient degree of control over the individual
3. There are other provisions that are consistent with a contract of service
,TEST 1: CONTROL TEST
To what degree can the employer control what the individual does and how they do it?
Number of hours worked
Which days they work
Place of work
Clock in system
Reporting to the same place of work
Provision of tools or uniform
Tax does the employer pay through PAYE
Exclusivity can the employer prevent the person from taking other jobs?
TEST 2: PERSONAL SERVICE TEST
If sending a substitute in his/her place to do the work, is this consistent with the
requirement for personal service?
Fettered (limited) power to appoint substitutes = NOT inconsistent with existence of a contract of
employment
MacFarlane v Glasgow City Council [2001] held to be an employee since right to substitute
was fettered
Unfettered (unlimited) power to appoint substitutes = inconsistent with existence of a contract of
employment
Other factors to consider:
Deciding factor is whether the individual has the right to provide a substitute in any
circumstances or only in limited circumstances
Whether personal service is the ‘dominant feature’ of the agreement
TEST 3: MUTUALITY OF OBLIGATION TEST
Is there an obligation on the company to provide work and for the individual to perform
work when given it?
Carmichael v National Power Plc [1999]
Power guides were NOT employees as there was no mutuality of obligation
o Not obliged to accept work when offered
o Parties were merely intimating that work may be offered or that they were open to
invitations to work
TEST 4: ECONOMIC REALITY AND INTEGRATION TEST
Additional factors to be taken into account:
Does the individual take a degree of financial risk?
Does the individual profit from sound management of tasks?
Is the individual paid through PAYE or does he/she provide an invoice for services?
Who provides the materials and equipment?
How have the parties described their relationship?
Is the individual subject to company’s disciplinary or grievance procedure?
Is the individual paid holiday or sick pay?
Does the individual wear the uniform of the company and/or appear to the outside world to be
an employee of the company?
Is the employee ‘part and parcel’ of the company?
,AGENCY WORKERS
Agency Workers Regulations 2010
From the first day of an assignment, an agency worker must be able to access a hirer’s collective
facilities and amenities and must have access to information about the hirer’s job vacancies
(Reg. 12 and Reg. 13)
After 12-week qualifying period with same hirer, agency worker will be entitled to same rights to
pay, benefits, rest periods and holidays as comparable employees or workers (Reg. 5)
Claims an agency worker can bring if regulations are breached (Reg. 17 and Reg. 18):
o Must be brought within 3 months of date of infringement
o ET can award compensation that it considers ‘just and equitable’
CONTRACT OF EMPLOYMENT COMPLIANCE WITH ERA 1996
Starting work on or after 6 April 2020
WRITTEN PARTICULARS
S.1(1) ERA 1996: when a worker begins employment, an employer must give the worker a written
statement of particulars of employment
S.1(2)(b) ERA 1996: requires the statement to be given not later than the beginning of employment
Must be provided with written particulars containing information in s.1 ERA 1996 no later on the
date on which employment begins
Particulars (s.1(3) and (4) ERA 1996) which must be included in same document (s.1(2)(a) ERA
1996)
Particulars (s.3(1) ERA 1996) which must be included in same document
Particulars (s.1(4) and s.3(1) ERA 1996) that must be provided but can be referred to in another
document (s.2(2) ERA 1996) usually in staff handbook
s.4 ERA 1996: if any material changes are made to written particulars, the employer must provide
the worker with a written statement of the changes within 1 month (applies to both employees
before and after 6 April 2020)
Failure to supply particulars or disagreement over particulars = apply to ET (s.11 ERA 1996)
Under s.12 ERA 1996, ET may:
o Confirm particulars as included or referred to in the statement
o Amend particulars
o Substitute other particulars for them
NB.
Deficient particulars = Tribunal can make an award of compensation between 2-4 weeks’ pay
(subject to statutory cap on weeks’ pay) for failure to provide written statement of employment
particulars – s.38 Employment Act 2002
Compensation is a dependent right which will only arise if another claim e.g. unfair dismissal,
arises as well PIGGYBACK CLAIM (s.28 Employment Act 2002)
Starting work prior to 6 April 2020
Only employees were required to be provided with a statement of written particulars
Apply the law as it was prior to the amendments extended to all workers and additional
particulars required
, CHAPTER 2: TERMS OF THE CONTRACT AND POST-TERMINATION
EXPRESS TERMS
Written particulars within 1 month = s.1(1) and (2) ERA 1996
May include right to:
o Suspend without pay
o PILON clause
o Relocate an employee
o Enforce garden leave
o Vary the contract of employment
o Search an employee
Examples of express terms:
o Commission on net profits
o Company car
o Bonus
o Maternity and annual leave provisions (more generous than statutory)
IMPLIED TERMS
Sources of implied terms:
1. Statute
o Certain terms protecting employees’ rights are implied into the contract due to the
inequality of bargaining power between the parties
S.86 ERA 1996: statutory minimum notice
Equal pay clause implied by legislation
WTR 1998
2. Custom and practice/past conduct
o A term can be implied into the contract by virtue of the custom and practice at the
workplace/within the industry or by virtue of the past conduct of the employer
3. Officious bystander test
o Where a term is so obvious that both parties would instantly have agreed to it from the
outset, had they been asked
4. Business efficacy
o Where a term is implied to make a contract workable
Duties owed by the employer Duties owed by employees
To pay To provide personal service
o If contract is silent, then implied term gives o Personal obligation to perform work
employee right to reasonable renumeration
o National Minimum Wage Act 1998 To work with RS, C & D
o National Minimum Wage Regulations 2015 o Employee must present himself as reasonably
competent to do the job and take reasonable
To provide work (limited duty) care in the performance of his duties
o William Hill v Tucker [1999]
Good faith and confidence
To take reasonable care for the employee’s health o That employee will serve employer faithfully
and safety and not act against the interests of the
o Health and Safety at Work Act 1974 business
o Employee must be honest and not disclose
To take reasonable care in giving references confidential information
o Duty of care will be owed in the preparation
of the reference provide fair, true and To obey lawful orders
accurate reference o Must be within scope of contract
Mutual duty common to both employer and employee
Mutual duty of trust and confidence
o Requiring an employer to not “without reasonable and proper cause, conduct itself in a manner
calculated or likely to destroy or seriously damage the relationship of confidence and trust between
employer and employee
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