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Revision notes for employment law exam
- Module
- Employment law
- Institution
- Birmingham City University (BCU)
Revision notes for employment law
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Agency Workers……How does it work? You pay the agency, including the employee’sNational Insurance Contributions (NICs) and Statutory Sick Pay.
Whose responsibility is to to make sure that the workers ger their rights under the
Working Time Regulations? The agency
What do agency workers get after 12 weeks of continuous employment? agency workers
get the same terms and conditions as permanent employees, including pay, working time,
rest periods, night work, breaks and annual leave
What must the company do when getting an agency worker? you must provide the agency
with information about the relevant terms and conditions in your business so that they can
ensure the worker gets equal treatment after 12 weeks in the same job.
What does it mean if you hire freelancers, consultants and contractors?
they are self-employed or are part of other companies
they often look after their own tax and National Insurance contributions (NICs)
they might not be entitled to the same rights as workers, eg minimum wage
you’re still responsible for their health and safety
An individual will be an employee if:
there is an obligation to provide personal service, and
there is mutuality of obligation, and
the employer controls the way in which work is done, and
other factors are consistent with employment (for example level of integration
into business, label applied by the parties, nature and length of engagement,
benefits received by the individual).
An individual will be self-employed if:
there is no obligation to provide personal service, or
there is no mutuality of obligation, or
they are carrying out a business and the other party is the customer.
An individual will be a worker if:
there is an obligation to provide personal service, and
there is mutuality of obligation, and
they are not carrying out a business and the other party is not a customer, and they
don't otherwise meet the test for being an employee.
*****Unison Case********
The 7 Justices unanimously held that the fees imposed were unlawful and prevented
thousands from bringing claims, including those who were on a low income. The Supreme
Court ruled that the fees were unlawful and were unlawfully hindering access to justice.
Note: It took UNISON 4 years to get this decision from the highest court in the land after
first commencing proceedings in June 2013 when it sought permission in the HC to bring JR
proceedings.
, Who were the 7 justices in the case of Unison when it was heard in the Supreme Court?
Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes.
**************
What are the facts of Autoclenz Limited v Belcher and Others [2011] 20 Valeters argued
that they were workers and thus they were entitled to be paid in accordance with the
NWMR and were also entitled to receive statutory paid leave under the WTR, they brought
this claim as they received no payment.
Under Section 54 of the Working Time Regulations 1998, how is a ‘worker’ defined (clue it
is the same as the definition found in the ERA? A worker “means an individual who has
entered into or works under …….. (a) a contract of employment or (b) any other contract,
whether express or implied and (if expressed) whether oral or in writing, whereby the
individual undertakes to perform personally any work or services for another party to the
contract whose status is not by virtue of the contract that of a client or customer of any
profession or business undertaking carried on by the individual.”
What is limb A? a contract of employment
What is limb B? any other contract, whether express or implied
What is outlined under Section 224 of TULR(C)A subsection b? – “contract of employment”
includes any contract under which one person personally works or performs
Who heard the case in the Supreme Court? Lord Hope, Lord Walker, Lord Collins, Lord
Clarke and Lord Wilson.
What was the decision of the Employment Tribunal? The ET found in favour of Limb A (a
contract of employment).
What did the Employment Appeals Tribunal find? That Limb B applied.
What did the COA find? In favour of the Employment Tribunal decision- the reflection of
the contract vs the reality of the employment. Thus finding that Limb A applied.
What did the Supreme Court find? They found in favour or limb A, supporting the stance
taken by the ET and COA.
What did the Supreme Court look at to establish the genuineness of the agreement? WCCE
W= Written Terms [what was written]
C= Context of the Agreement.
C= Conduct of the agreement.
E= Expectations [employer and employee].
What is a unique thing about contracts of employments? Most of it is in fact unwritten, it is
a relationship of authority.
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