SGS 1: SOURCES & SCOPE
EMPLOYMENT STATUS
• There are 3 types of employment status:
a) Self employed/independent contractors: work under contract for services. Lack of statutory protection
b) Workers: all employees are workers. Cannot claim UD
c) Employees: benefit from job security/statutory protection.
i) DEFINITION OF EMPLOYEE
• s.230(1) ERA 1996: an individual who has entered into or works under a contract of employment
• Also mention 230(2) - contract of service
• If there is a contract, mention it. Does it say EE or self employed
• but no substantive meaning - thus depends on CL!
• Distinguish between contract of service (EE) & contract for services (W)
• State generally 4 tests widely relied on: control, mutuality of obligation, integration & economic reality
• note must go through each test and apply to facts & then link back to employment status
ii) READY MIX CONCRETE
• 3 basic requirements for an individual to be an employee
a) Personal service in return for pay
b) ER has sufficient degree of control over individual
c) There are other provisions consistent with contract of service
iii) MUTUALITY OF OBLIGATION
• Obligation on ER provide work
• Obligation on individual to perform the work personally/make self available when given it
iv) PERSONAL SERVICE TEST
• Requires individual complete work personally.
• Personal service must be dominant feature of the agreement (PP)
• EE/worker status may be negated by substitution/delegation clause
• but where unable to attend/choice of substitute limited may still be EE
• Note irrelevant whether individual has actually exercised substitution clause
v) CONTROL TEST
• EE usually subject to control: where they work, how long and what work they have do and when
• E.g clocking in system, reporting to same place of work daily (with no flexibility), targets etc
• Stresses scope of managerial power give orders. More controlled, more likely EE
• Integration: is EE part & parcel of company? Are they entitled to holiday pay, pension, staff training,
discipline procedure, uniform, company email. PAYE system or do they provide invoice for service
• Economic reality: look at degree of financial risk for the individual. Who provides material/equipment. Can
individual work elsewhere?
• Note must distinguish between form & substance
• Agency workers: worker (A) provided by agency (B) to provide work to user (C) - B-C & A-B contracts
• Difficulty for A as may not be worker/EE of B & no contract with C
• Test of necessity for implying contractual r/s between agency worker and end user
• Seems unless paperwork governing r/s unclear as to status, wont’t be an employment r/s
AGENCY REGS
• Common multiple choice:
• Reg 3 AWR 2010: defines agency worker = individual ‘supplied by a temp work agency’ to work temporarily
for user & has either employment contract/another contract to perform services personally for agency
• Entitled to same basic conditions (Reg 5) as comparable EE, or terms which would ordinarily be included
for comparable EE
• Reg 6 lists sort of conditions
• Doesn’t apply if < than 12 weeks continuous employment with C (Reg 7)
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, • Reg 12/13 from day 1 agency W must be able access hirer’s collective facilities & amenities e.g canteen,
crèche - and must have access to info re hirers job vacancies
• Regs 17/18 stat claims agency W can bring if AWR breached - 3m limitation period
• Note Claim under 12/13 claim against hirer (end user)
• but Under 5 = against hirer and/or agency
• Zero hours contracts: s.153 SBEEA 15 bans exclusivity clauses in 0 hour contracts
• s.27A (3) ERA ZHC provisions also unenforceable if prohibit W from working under another contract/
arrangement/w.o ER consent
WORKING TIME
i) DO THE REGS APPLY - ALWAYS DO
• Reg 2 Worker = EEs/those giving personal service other than client/customer (includes agency/freelancers)
• Excludes genuinely self employed
• ‘It appears from facts X is an employee. An Employee is included in the definition under the WTR. Thus
WTR apply to him’
ii) WHAT IS THE ISSUE & STAT REF?
• Reg 4(1) a W should work no more than 48h/w on average over ref period of 17w
• But W can opt-out (must be in writing)
• Note ‘on call’ time counts if requirement to be available/present @ a place TBD by ER
• Time travelling for peripatetic workers between home/premises of 1st/last customers of day = working time
• Reg 13 and 13A Paid annual leave - all Ws entitled to 5.6 weeks’ paid annual leave
• This = 28 days for full time workers (incl. 8 bank holidays)
• 13(9)(b) leave may not be replaced by a payment in lieu except upon termination
• Reg 15 EE must give ER notice to take leave - twice as long as leave requested
• The WTR is silent as to whether a worker accrues holiday when on sick leave
• Stringer v HMRC held
a) entitlement to holiday pay does accrue whilst EE absent on sick leave;
b) workers can take paid holiday during periods of long term sick leave;
c) If been off whole year can carry it over for 18 months
• If W falls ill before/during period of pre-planned annual leave, can request replacement period to ensure not
deprived of entitlement to rest, relaxation and leisure, even if after leave year (exception to 13(9))
• Stringer/request of replacement = very common MCQ territory
• Note can only opt out of the 48h, everything else requires conversation
• Reg 10(1) daily rest - must be entitled to 11 consecutive hours of uninterrupted rest in each 24h period
• Reg 11 (1) weekly rest - entitled to rest period of 24h in each 7 day period
• Reg 11 (2) imp. too - note it
• Reg 12(1) rest breaks - after 6h at work, W entitled to rest break no shorter than 20 mins
• Reg 6 night workers shouldn’t work more than 8h in every 24h during during 17w period
• Reg 2 night worker = individual who on majority of days on which works, works at least 3h during night
• Note ER may not assign W night work w.o offering W free health assessment
• Reg 20 exception - unmeasured working time e.g live-in nanny (/where ER senior, not subject to 48 working
week/daily rests)
• Reg 21 special cases e.g gas production workers - extends reference period from 17-26 weeks
• Note if part time worker who doesn’t work Mondays (most BHs on Mondays) Gov suggests holidays be
pro-rated - calculation to be made - never have work out
• Note s.40 ERA right to opt out of Sunday working & s.45 auto unfair if dismissed bc of this
• s.41A-D to opt out EEs give 1m notice to large shops, can opt out more than their normal Sunday hours and
ET power award 2-4w pay where ER doesn’t notify EE of opt-out rights
iv) APPLY TO FACTS
v) ANY MORE INFO NEEDED?
• e.f if on call how long will 48h week last for (need to average over 17w)
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,vi) REMEDIES
• Reg 4 Breach of 48h working week remedies = limited:
• 48h week monitored by the Health & Safety Executive and/or local authorities (Reg 28)
• Non-compliance to take reasonable steps comply with limits/prohibition of improvement notice issued
by HSE could lead to criminal sanctions under Reg 29
• But no Reg 30 compensation under for this breach
• Reg 10/11/12/13 ET - declaration & compensation under Reg 30
vii)PRACTICAL SOLUTIONS
• e.g opt out of 48 working week
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, SGS 2: THE CONTRACT OF EMPLOYMENT
EXPRESS TERMS
i) WRITTEN STATEMENT REQUIREMENTS
i) Info in a single doc (s.1 ERA 1996) basic info (names etc), rate of pay, wage period, holidays, holiday pay,
job title, place of work, disciplinary/grievance procedures (though details may be separate)
• s.2(4) requires following be provided in one document
• Names of ER & EE
• Date employment began/continuous employment began
• Rate of remuneration & intervals @ which paid
• Terms relating to hour of work
• Entitlement to holidays
• Job title
• Place of work
• s.3(1) also requires statement include a note specifying disciplinary rules/refer to reasonably accessible doc
• s.2(1) requires statement mention where no particulars for any of the items listed in s1(3) & 1(4)
• e.g draft letter doesn’t include ref to whether any CAs in place. If so, statement should make ref to it.
ii) Info in a separate doc: length of contract, any CAs directly affecting T/Cs, details of ay work abroad
iii) Info either in a written statement or in another reasonably accessible doc - s.2(2) provides ER can refer EE
to ‘some other document reasonably accessible’ to them for details of particulars required by s.1(4)(d)(ii)
(&) (iii) aka sickness & pensions
• 1(2) for now, all of the above must be given no later than 2m after beginning of employment
• s.7A(1)(a) ER can satisfy ss1-3 obligations by issuing doc in writing in form of CoE/letter of engagement
• s.4(1)/(3) ERA any changes must be notified at earliest opportunity & at most within 1m of taking effect -
statement need only outline changes
• s.2(3) provides that for matters specified in s.1(4)(e) (i.e notice of termination) ER case refer EE to ‘law
or provisions of any collective agreement’
ii) REMEDIES (COMMON MCQ TERRITORY)
• If breach of s.1/4……
• s.11 EE can apply for rectification procedure in ET
• s.12(2) ET can make declaration to determine particulars, amend or substitute other particulars for them
• This just construes contract - weak remedy!
• s.38(2)-(4) Employment Act 02: if EE wins another claim in ET (e.g UD/discrim/TU) can get 2-4 week
pay as comp for statement failures
iii) RESTRICTIVE COVENANTS
• Three common types….
a) Non-competition (most onerous)
b) Non-dealing (can’t deal or have any business dealing with customers)
c) Non-solicitation/poaching (customers/EEs)
• Void & unenforceable unless they
a) protect legitimate interest of the business; and
• e.g customer connections, confidential information, stability of workforce, trade secrets etc
b) go no further than reasonably necessary to protect that interest
• e.g duration, geography & needs/interests of business, employee duties & proportionality
• Court will not rewrite restrictive covs to make them enforceable, but may strike out unenforceable part,
keeping remainder of clause if makes independent sense (blue pencil test) - can’t add anything
• Note restrictive covenants x enforceable post repudiatory breach/wrongful dismissal
• Remedies = damages, injunction or springboard injunction
IMPLIED TERMS
i) STATUTE
• s.86(1) ERA statutory minimum notice…varies with period of continuous employment = bare minimum
ii) DUTIES OWED BY EMPLOYER
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