I achieved a 7o for my Employment Law exam with these notes.
The notes are based on BPP Employment Law SGS's.
They provide you with answer structures that you should follow in the exam in order to cover all points necessary to achieve a high mark.
The notes include all statutory references...
DEFINITION OF EMPLOYEE
EMPLOYEE: s.230 ERA 1996 ‘individual who has entered into or works under a contract of employment’
Ready Mixed Concrete v Minister of Pensions
3 requirements:
• Individual must have agreed to work personally in return for pay
• Employer must exercise a sufficient degree of control
• There are other provisions that are consistent with contract of service
Personal service Control Mutuality of obligation
Express and Echo v Tanton Can the company control Is there obligation on the
There must be requirement what the individual does, company to provide work
to provide service where, how and when this and the individual to
personally is done? perform work when give?
PS: Look at other factors: do they imply a contract of employment?
Agency workers
The Agency Workers regulations 2010
• Reg 12 and 13: from first da worker should be able to access the hirer’s amenities
• Reg 5: after completion of 12 weeks of work, worker is intitled to same rights to pay, benefits, rest
periods, holidays like direct employees
• Reg 17 and 18: sets out claims that agency workers can bring against Hirer if AWR is breached
• Within 3 months of infringement
ZERO Hour contract
• S.153 of Small Business Enterprise and Employment Act 2015: bans exclusivity clauses in Zero Hour
contract
• S.27 ERA 1996 statutory definition of Zero Hours Contract
• s.27A(3) ERA 1996: any provision in Zero h contract Is unenforceable if it prohibits the worker from
working under another contract without the consent of the employer.
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,Express terms contained in Policies, employment contract, Bonus schemes, employee
handbooks
• Suspend without pay
• Pay in lieu of notice.
• Relocate an employee
• Dismiss without notice
• Email internet: what can employee do with their IT system
Implied terms Statutory: s.86 Employment rights act, WTR
Customer practice
Officious bystander
Business efficacy
Duties owed by the employer:
- Duty to pay national minimum wage Acy 1998
- Duty to provide work
William Hill v Tucker: employee sent garden leave which was not a term
in the contract. But the injunction was refused and court said that there
was an obligation to provide work to the employee.
- Duty to take reasonable care for the employee’s health and safety.
- Duty to take reasonable care when providing reference
Duty of the employee
- Duty to provide personal service.
- Duty to work with reasonable care and skills
- Duty of good faith and confidence
- Employ must obey lawful orders
Mutual duty of trust and confidence
Varying express terms of the contract : unilateral notice
Imposing the change: inform employee that Dismissed and reengage employee: terminate the
particular change has now taken effect old contract and reengage employee on new
contract incorporating changes.
What can employee do
- Acquiescence: continue to work under the Employees can:
new term
- Resignation: resign on the basis that he has • Accept new terms and be reengaged
been constructively dismissed • The employees can accept but still bring
- Refuse to go along with the change claim from Wrongful or unfair dismissal
- Stand and sue: employee works under the • Employees can refuse new contract under
new term but works ”under protest” and new term and bring claim for unfair and
bring a claim for breach of contract claiming wrongful dismissal
damages arising from the unilateral
variation by the employer
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, POST TERMINATION TERMS
Garden Leave
Notice has be duly given by either party, employee continues to be paid and receive full contractual
benefits but not required or permitted to attend workplace.
Employee resigns, and employer suspends employee from work employee not attending workplace but
still under employment. Employee remains bound by implied duty of good faith and confidence.
Confidential information
Implied confidentiality clause: prohibits disclosure of info Trade secret or info that is regarded by
employer as confidential.
Trade secret test:
Faccenda Chicken Ltd v Fowler in determining whether information amounts to trade secret:
1. Nature of employment and nature of the employee
2. Nature of the information
3. Whether employer impressed upon the employee the confidentiality of the info
4. Whether info could easily be isolated from other info which the employee was free to use and
disclose
Express confidentiality clauses may help employer to protect trade secret
- Be evidence of that the employer impressed upon the employee that info was confidential
- DETER employee from disclosing info
- Non-competition
Restrictive covenants
- Non dealing
Are void UNLESS they - Non solicitation/poaching
- Protect legitimate interest of the business
- Go no further that is reasonably necessary to protect that legitimate interest
Blue pen test: court can strike out the unenforceable part of a restrictive covenant clause. Court will not
rewrite the clause.
Reasonableness
1. Duration of the restrain should be for a reasonable length should not extend beyond the last date
employee can harm the business: more than 1 year usually not valid
2. Geographical restrain must tie with nature of work. nationwide or global unlikely to be valid if work
regional
3. Needs/interest of the business must be identified. Type of company, client profile and market. Only
protect what needs to be protected.
4. Duties of the employee should be considered. Ex. No point for an employer who does not have
client contact to have a non-solicitation clause
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