*Up-to-date 2024 Distinction level EXAM READY notes* for the Employment Law elective module of the LPC at BPP University.
*Achieved a grade of 98% with just these notes in the exam*
*Suitable for students studying the LPC, LLM or SQE at the University of Law, BPP & all other universities*
...
SUBJECT STEP STEPS REQUIRED
INDEPENDENT Self-employed/ independent Definition
CONTRACTORS V contractors • Work under a contract for services: end-user (client/customer) pays for
WORKERS V the service to be provided.
EMPLOYEES **Contract for services • Contract for services: (i) individual is not required to perform the
**Individual NOT required to services personally; (ii) is not subject to overt control; and (iii) can be seen
perform services personally to bear a degree of financial risk.
• Ready Mixed Concrete [1968]: NOT an employee but an independent
contractor as he was not required to drive the lorry personally. He could
employ a substitute driver to do so.
Advantages
• Flexibility & tax benefits
Disadvantages
• Do not benefit from most of the statutory protection. The end-user does not
owe them any employment law obligations
Workers Definition
• individuals who personally perform work/provide services to another
**Individual IS required to (except those in a client or customer relationship)
perform services personally (i) Personal service: if the individual has an absolute unfettered right
**must NOT be a client/ to send a substitute, he is not a worker; AND
customer relationship (ii) the lack of a client/customer relationship: e.g. roofer is NOT a
**NOT required to accept work worker as the householder is still his customer.
when offered • Carmichael v National Power plc [1999]: Power station guides are
workers as they were not obliged to accept work when offered.
Advantages
(i) getting the National Minimum Wage
(ii) protection against unlawful deductions from wages
(iii) Working Time Regulations 1998: the statutory minimum level of paid
holiday/ the statutory minimum length of rest breaks/ to work no more
than 48 hours on average per week or to opt out of this right if they
choose
(iv) protection against unlawful discrimination
(v) protection for ‘whistleblowers’ who report wrongdoing in the workplace
(vi) not to be treated less favourably if they work part-time
(vii) Workers starting work on or after 6 April 2020 must be provided with a
statement of written particulars containing the information set out in s.1
ERA 1996
Disadvantages- NOT entitled to:
(i) minimum notice periods
(ii) protection against unfair dismissal
(iii) the right to request flexible working
(iv) time off for emergencies
(v) Statutory Redundancy Pay
Employees Definition
• s.230(1) ERA 1996: “an individual who has entered into or works under a
**Contract of service contract of employment” which is defined as a “contract of service”.
** Individual IS required to • Ready Mixed Concrete [1968]:
perform services personally o the individual must have agreed to carry out the work personally
** Employer exercises control (i.e. he cannot hire someone else to do it for him or her) in return
** IS required to accept work for pay [STEP 2];
when offered o the employer must exercise a sufficient degree of control over
the individual [STEP 3]; and
o there are other provisions that are consistent with a contract of
service [STEP 3/5].
Carmichael v National Power [1999]:
o mutuality of obligation [STEP 4]
Also consider other factors:
o Economic reality and integration tests [STEP 5]
,SUBJECT STEP STEPS REQUIRED
Advantages
(i) Statutory Sick Pay
(ii) minimum notice periods: if contract has shorter notice period then s.86
ERA 1996 overrides this and gets the longer periods
(iii) s.94 ERA 1996: protection against unfair dismissal
(iv) the right to request flexible working
(v) time off for emergencies
(vi) Statutory Redundancy Pay
(vi) protection under TUPE on a ‘relevant transfer’; and
(vii) right to maternity/paternity leave and pay.
IS THE INDIVIDUAL STEP 1: Consider the (i) 4 requirements: Irreducible minimums for existence of a relationship
AN EMPLOYEE? common law irreducible of employment:
minimum tests/ each case Ready Mixed Concrete [1968]:
**If the individual is not an turns on its facts/ consider a. the individual must have agreed to carry out the work personally
employee then won’t benefit the true agreement and (i.e. he cannot hire someone else to do it for him or her) in return
from traditional contract is not determinative for pay [STEP 2];
employment rights [e.g. b. the employer must exercise a sufficient degree of control over
unfair dismissal & right to the individual [STEP 3]; and
receive a redundancy c. there are other provisions in the contract that are consistent with
payment] a contract of service (e.g. financial independence/ payment
during holiday or sickness absence/exclusivity/integration into
the business) [STEP 3/5].
Carmichael v National Power [1999]:
d. mutuality of obligation (NB unlikely to be an employee if no
mutuality of obligation) [STEP 4]
Also consider other factors:
e. Economic reality and integration tests [STEP 5]
(ii) Consider the true agreement between the parties: label placed by the
parties on arrangements and the intention of the parties, is not
determinative.
STEP 2: Personal Service (i) General rule: If the individual does not have to perform the work
test: does the individual personally and has a right to send a substitute to perform the work in their
perform the work personally/ place this may negate employment status:
have a fettered right to • [not an employee] Ready Mixed Concrete [1968]: NOT an
appoint substitutes or is there employee but an independent contractor as he was not required to
an absolute right to appoint a drive the lorry personally. He could employ a substitute driver to do
substitute? so.
• [not an employee]Express and Echo Publications v Tanton [1999]:
**General rule: if no NOT an employee as: (i) there was no requirement for personal
requirement for personal service; (ii) had a general power to exercise whenever he wished to
service (i.e. can send appoint a substitute; and (iii) power to appoint a substitute had
substitute) means not an actually been exercised.
employee
(ii) Is the right to substitute fettered in any way (e.g. in limited
*Exception: if the right to circumstances/from a list)? If have limited/fettered power to appoint
substitute is fettered then substitutes/ delegate can be an employee:
means you are an employee • [employee]MacFarlane v Glasgow City Council [2001]: gymnastics
BUT if the right is absolute and instructor could arrange a replacement from a register maintained by
the dominant feature then you the council if unable to attend work. Held: was an employee as: (i)
are NOT an employee the claimant had to be unable to attend (rather than just preferring
not to); and (ii) his choice of substitute was limited.
(iii) NB whether the whether the right to substitute has actually been
exercised NOT a crucial factor:
• [not an employee]Staffordshire Sentinel Newspapers v Potter
[2004]: NOT an employee: (i) right to delegate was absolute and
could be for any reason even though the replacement had to be
‘suitable’ and that the client had sometimes objected to the
proposed substitute;
• [not an employee]Real Time Civil Engineering v Callaghan: it
does not matter if the individual has never actually exercised
their right to provide a substitute.
,SUBJECT STEP STEPS REQUIRED
(iv) Is personal service the “dominant feature” of the agreement?
• [employee]Pimlico Plumbers [2018]: assess the significance of the
right of substitution by reference to whether the dominant feature of
the contract remained personal performance on his part.
STEP 3: Control Test: can (i) Greater operational control a company has then more likely to be an
the company control what the employee:
individual does, and where, a. Control over when work is done
how and when it is done? b. Control over where work is done
c. Control over what work is done
STEP 4: Mutuality of (i) Is the individual obliged to accept work when offered/ is the company
obligation test: is there an obliged to provide work?
obligation on the company to a. [NOT employees but casual workers instead]Carmichael v
provide work and for the National Power plc [1999]: power station guides were NOT
individual to perform work employees as there was no mutuality of obligation as they were
when given it? not obliged to accept work when offered. The parties were
merely intimating that work may be offered or that they were
open to invitations to work.
(ii) Is there a zero hours contract- then no mutuality of obligation and
NOT an employee?
STEP 5: Other factors (i) Does the individual take a degree of financial risk?
(economic reality and (ii) Is the individual paid through PAYE or does he provide an invoice for
integration tests) services?
(iii) Does the individual hire his own helpers?
(iv) Who provides the materials and the equipment?
(v) Is there a prohibition on working for others?
(vi) Is the individual subject to the company’s disciplinary/ grievance
procedure?
(vii) Is the individual paid holiday or sick pay?
(viii)Does the individual wear the uniform of the company and/or appear to the
outside world to be an employee of the company?
(ix) To what extent is the individual ‘part and parcel’ of the company (e.g.
attending company social events, training sessions, team meetings,
individual integrated into the workforce, Internal company email address,
Attend staff meetings?)
(x) how their earnings are taxed (is tax deducted at source via PAYE or does
they account to HMRC for their own taxes?).
STEP 6: Conclusion (i) Each case will turn on its facts. Not a mechanical exercise of balancing a
checklist. All the details must be accumulated and considered which will
together allow a “picture to be painted” (Hall v Lorimer (1994))
(ii) Consider the true agreement between the parties: label placed by the
parties on arrangements and the intention of the parties, is not
determinative.
a. [were employees]Autoclenz Ltd v Belcher [2011]: the reality of
the relationship between the parties is paramount over the
written contract
AGENCY WORKERS Is Agency worker an (i) Brook Street v Dacas [2004]: liberal approach to establishing whether an
employee? Agency Worker is an employee: after working for end user for no. of
years, the agency worker had to “belong to” someone and couldn’t be left
STEP 1: Look at the without an employer
contractual relationship
between the Agency and the Subsequent case law retreats from Dacas position: now can only imply an
Agency Worker employment contract if it is necessary
(ii) James v Greenwich LBC [2008]: restricted to test of necessity whether to
STEP 2: Very rarely will there imply an contractual employment relationship: not enough that End User
be an implied employment exercises control/length of tenure
relationship between the a. where no written contract between End User and Agency
Agency Worker and End User Worker it would be RARE to imply a contract. The exercise of
(per James & Carillion) control by End User and length of tenure were themselves alone
,SUBJECT STEP STEPS REQUIRED
not enough to imply a contractual relationship. AND as Agency
could send a replacement, this was inconsistent with an
employment contract.
b. A Tribunal should only imply a a contractual relationship
between an agency worker and end-user out of necessity (rather
than simply desirable)
Agency Workers Regulations Agency Workers gain same equal treatment rights as employees (after 12
2010 weeks)
(i) Reg 7(2): must be working for 12 CONTINUOUS CALENDAR WEEKS
with the same hirer, carrying out the same role, before they have the same
equal treatment rights as employees
(ii) Equal treatment rights (Reg 5) after completion of a 12-week qualifying
period (Reg 7) an agency worker will be entitled to the same rights to pay,
benefits, rest periods and annual leave pay as comparable employee.
(iii) Right to same pay as equivalent employee Reg 6(1) - pay is one of the
relevant conditions i.e., after 12 weeks you would have the right to be paid
the same as an employee who does the same work as you
(iv) Breach: Breach of a Reg 5 equal treatment right can be brought against the
agency and the End User
(v) Bring a claim under Regs 14 and 18: Employment Tribunal can make a
declaration/ recommendation/ order compensation
NB AWR do NOT confer employment status on an agency worker and
CANNOT claim unfair dismissal/ statutory redundancy pay
What rights do Agency Workers have from Day one?
(i) AWR Reg 12: from the first day of an assignment, an agency worker must
be able to access a hirer’s collective facilities and amenities (e.g. staff
canteen/crèche/toilet/car parking)
(ii) Reg 13: Day 1 right to know about what vacancies there are in the
business
(iii) Breach of a day 1 right can only be brought against the End User
(iv) Bring a claim under Regs 14 and 18: Employment Tribunal can make a
declaration/ recommendation/ order compensation.
WORKING TIME STEP 1: Do the Working (i) Reg 2 WTR: Applies to “Workers”:
REGULATIONS 1998 Time Regulations 1998 a. Employees;
apply? [Reg 2 WTR] b. Anyone giving person service (otherwise than client/customer);
**Applies to employees, c. Agency Workers;
agency workers and d. Freelancers;
freelancers BUT excludes e. NOT genuinely self-employed.
the genuinely self-employed Breach 1: Is the worker (i) Reg 4(1) WTR: unless employer has first obtained worker’s agreement in
working (or “on call”) more writing, a worker’s working time (including overtime) shall not exceed
**Provisions of the than 48-hours per week on 48hrs per week over a reference period of 17 weeks.
Regulations are implied average over a period of 17
into every contract of weeks (Reg. 4)? (ii) NB “on call” counts as “working time” if they are required to be present
employment. and available at the workplace (on call doctors in the hospital/ peripatetic
workers) rather than at home (i.e. on call but at home)
a. SIMAP and Jaeger [2003]: time spent by doctors on call at
hospital premises (even when asleep) counted as “working
time”.
b. Tyco Integrated Security: Peripatetic workers (i.e. workers
not assigned a fixed place of work) time spent travelling between
their home and the premises of their first and last customers of
the day was working time because they were at their ‘employer’s
disposal’ during these times
Practical solutions for Employer: Opt out of 48hr working week
(i) Reg 4(1) WTR: By written agreement workers may opt out of the 48-
hour working week.
(ii) Reg 5 WTR: opt-out requirements:
a. needs to be in writing
b. needs to be voluntary
,SUBJECT STEP STEPS REQUIRED
(iii) Reg 4(2) WTR: Employers must maintain records of the names of
workers who have opted out.
Enforcement
(i) Reg 28: Working time limits (i.e. 48-hour week and length of night work)
are enforced by the Health and Safety Executive (HSE) and local
authorities [can issue an enforcement notice]
a. non- compliance with the WTR to take reasonable steps to
comply with the limits or a prohibition or improvement notice
issued by HSE under its powers under Schedule 3 of the WTR
could lead to criminal sanctions under Regulation 29.
(ii) Reg. 30 does NOT apply to Reg 4: where the employer has required an
individual to work in excess of the 48-hour limit, Regulation 30 does not
allow a worker to bring a claim in the employment tribunal under the WTR,
unlike the other entitlements to rest.
Exceptions
(i) Reg 20: Reg 4 does NOT apply to workers whose working time is
unmeasured/ not pre-determined e.g. senior managers/ family workers
Breach 2: Does an individual (i) Reg 13 & 13A WTR: All workers entitled to 5.6 weeks’ paid annual
have sufficient annual leave leave (28 days) [NB this includes the 8 bank holidays so really it is 20
i.e. paid holiday? (Reg. 13 & days]
13A)?
(ii) Reg 16: workers must be paid at a rate of a week’s pay for each week’s
leave, calculated in accordance with the regime contained in s.221-224
ERA 1996 [week’s leave for a full-time worker will be five days].
Part time workers annual leave calculated pro-rate
Part-time workers annual leave calculated pro-rata: e.g. if work 3 days a week
then entitled to 3 x 5.6 weeks = 16.8 days’ annual leave (company can decide
whether to round this up to 17 but cannot round down to 16)
On termination, employer must make payment in lieu of leave accrued due
but untaken
(i) Reg 14(2): an employer must make a payment in lieu of leave accrued due
but untaken on termination
Cannot be paid in lieu of holidays
(i) Reg 13(9)(b): leave may not be replaced by a payment in lieu except
upon termination (as undermines health and safety objectives).
General rule: can’t roll over statutory annual leave unless couldn’t take it
because worker was on sick leave
(i) Reg. 13(9)(a): employer may not allow a worker to roll over any part of
his holiday entitlement under the Regulations to the next holiday year
(but worker may be permitted by their employer to roll over any
contractual leave entitlement over and above their entitlement under the
Regulations).
o BUT exception: NHS Leeds v Larner [2012]: if the worker
falls sick during annual leave or did not exercise right to annual
leave because he was sick, then the annual leave CAN be rolled
over.
o BUT Plumb v Duncan Print Group Ltd: this annual leave
rolled over must be taken within 18 months of the end of that
year where the worker was unable/unwilling to take it because
he was on sick leave
Notice requirement
(i) Reg. 15: a worker must give notice to his employer of his intention to take
leave.
a. Notice must be at least twice as long as the amount of leave
requested.
, SUBJECT STEP STEPS REQUIRED
b. If the employer refuses the request, he must serve a counter-
notice on the worker and this counter-notice must be at least as
long as the number of days’ leave refused.
c. N.B. employer may also require a worker to take all or part
of his leave on certain dates by giving him notice of that
requirement
Annual leave continues to accrue when on sick leave: Workers can take
paid statutory holiday during periods of long term sick leave
(i) Stringer v HMRC:
a. entitlement to paid holiday does accrue whilst an employee is
absent on sick leave (therefore when they are back they can then
take the accrued annual leave); BUT
b. it is for the member states to decide whether workers may take
their holiday while they are on sick leave; AND
c. after termination of the contract, workers are entitled to a
compensatory payment to reflect accrued but untaken holiday
leave, even where the worker was on sick leave for the full
holiday year.
Enforcement/Remedies
(i) if you don’t have sufficient time to take off, ask to speak to
employer/negotiate
(ii) Reg 30: individual workers can complain to an Employment Tribunal
about an employer’s refusal to permit a worker to exercise a relevant right
(i.e. annual leave)
a. Claims must be presented within three months of when the
right should have been permitted. Time periods may be
extended if the Employment Tribunal is satisfied that it was not
reasonably practicable to present the claim within the three-
month period.
b. Remedies: a declaration and compensation which is just and
equitable in all the circumstances.
(iii) NB Reg 20 & 21 exceptions do NOT apply and annual leave provisions
still apply to those workers
Breach 3: Daily rest: does an (i) Reg 10(1): Right of an individual to rest of 11 uninterrupted hours in each
individual have 11 24-hour period during which the individual works for their employer
uninterrupted hours each
24hrs to rest? (Reg. 10)? Enforcement/Remedies
(i) if you don’t have sufficient time to take off, ask to speak to
employer/negotiate
(ii) Reg 30: individual workers can complain to an Employment Tribunal
about an employer’s refusal to permit a worker to exercise a relevant right
a. Claims must be presented within three months of when the right
should have been permitted. Time periods may be extended if
the Employment Tribunal is satisfied that it was not reasonably
practicable to present the claim within the three-month period.
b. Remedies: a declaration and compensation which is just and
equitable in all the circumstances.
Exceptions
(i) Reg 20: Reg 10 does NOT apply to workers whose working time is
unmeasured/ not pre-determined e.g. senior managers/ family workers
(ii) Reg 21: Reg 10 does NOT apply certain specified situations or types of
activity (subject to the worker being allowed to take compensatory rest as
defined in Reg. 24) e.g. hospitals, prisons, agriculture, and those which
"involve the need for continuity of service or production”, carriage of
passengers, where the workers activities affected by unforeseen events,
where there is an accident etc.
Breach 4: Weekly rest: does (i) Reg 11(1): Entitled to a full rest period of 24 uninterrupted hours in each
an individual have an seven-day period during which he works for his employer.
uninterrupted 24hrs in each 7
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