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Employment Law - High Distinction

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I achieved a High Distinction on the LPC at BPP (London Holborn) using these notes and used them to secure a job and a training contract at a well-known FTSE 100 company. The LPC is all about having a good set of notes and learning them. Using these notes, you will have all of the key information...

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  • June 16, 2020
  • 33
  • 2019/2020
  • Study guide
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By: umehugochukwu • 3 year ago

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By: Blumerzz • 3 year ago

Thanks for the review! Good luck with your exam. I always enjoyed Employment!

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By: joeljoseph • 3 year ago

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By: Blumerzz • 3 year ago

Thanks for the review Joel! Hope the exam went well

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SGS 1 – STATUS + WORKING TIME REGULATIONS (3½)

Contract of Employment
 Governed by ss 1 – 7B ERA 1996
 Employees = must be provided with statement of written particulars of employment within first
2 months of employment (key difference from workers)

ESTABLISHING WHETHER PERSON IS ‘EMPLOYEE – 4 STAGE TEST

Always start with s230(1) ERA 1996: Definition of ‘employee’

Ready Mixed Concrete (South East) Ltd v Minister of Pensions and NI
1) Personal Service
 Employee must carry out work personally in return for remuneration
 Substitution clause MAY negate MOO – right to substitute may be fettered if RESTRICTED
o MacFarlane v Glasgow City Council: If right to substitute is fettered = employee
o Express & Echo Ltd v Tanton: if right to substitute is unfettered = self employed
2) Mutuality of obligation (Carmichael v National Power plc)
 Employer HAS obligation provide work
 Employee HAS obligation to accept and perform work
3) Control Test
 Greater operational control employer has = more likely employment relationship exists
 Considerations of work = what /when / where / how must work be carried out
4) Other factors
 Economic reality
o Labels = “contract states X but this is not conclusive”
o Does individual take a degree of financial risk
o How is individual paid / who pays individual:
 Agency = indicates self-employed
 Invoice = indicates self-employed
 payroll (PAYE) = indicates employee
 Tax = self-assessed / HR
o Who provides materials / equipment
o Does individual hire own workers / prohibition
o Is individual paid holiday / sick pay
 Integration
o Does individual wear uniform / appear to outside world to be employee
o Is employee ‘part + parcel’ of organisation? (e.g. sick pay / subject to disciplinary +
grievance procedure / training / policies / access to facilities)

Hall v Lorimer: accumulation of details to “paint a picture”

Casual Workers

 Carmichael v National Power plc
 Aslam & Farrar v Uber

,Agency Workers

 James v Greenwich London Borough Council
 Alstom Transport v Tilson

SELF EMPLOYED EMPLOYEE TEST

FINAL CONCLUSION – with reasons by applying findings

WORKING TIME REGULATIONS 1994

o N.B. All employees are workers
o N.B. individual must agree to do / perform work personally + work done cannot be for client

1) Do Regs apply?
 Reg 2: Definition of ‘worker’
o Individual who has entered into or works under:
a) Contract of employment; or
b) Any other contract, whether express / implied and whether oral / in
writing, whereby the individual undertakes to do or perform personally
any work
 Apply WTR definition (e.g. contact of employment)
2) Issue + Statutory Ref (is there a breach?)

WORKING TIME

 Reg 4(1): max 48 hours per week on average over a reference period of 17 weeks
o Employer must take ‘all reasonable steps’ to protect health
o Reg 4(1) + 5: Can get employee to sign opt out– must be:
 Voluntary
 In-writing
 Method to opt in (cannot force to opt in)
 Reg 6: night work
 Reg 10(1): daily rest periods
o Not less than 11 uninterrupted hours in each 24 hour period
 Reg 11(1): weekly rest periods
o Not less than 24 hours in each 7 day period
 Reg 12(1)(3): daily rest breaks
o Must be given when working time is more than 6 hours
o Rest must be taken away from work station
 Reg 20: Exclusion – if senior management and can make own decision (e.g. determines
the work load themselves)

ANNUAL LEAVE

 Reg 13: paid annual leave

, o Reg 13(1): 4 weeks (20 days) + Reg 13A (1.6 weeks = 8 days for Bank Holidays)
= TOTAL minimum 28 days (inclusive of bank holidays)
o Reg 13(9): must take holiday and may not be replaced by a payment in lieu
unless employment is terminated
o Pro-Rata AL = 3 x 5.6
o N.B. Part-Time Workers (Prevention of Less Favourable Treatment
Regulations 2000): PT worker cannot be treated less favourably than full time
worker:
 employer must establish how many bank holidays are missed (e.g. Wed
– Fri rather than Mon – Wed) then ADD to Annual Leave
 Stringer v Revenue & Customers Commissioners
o Entitlement to paid holiday DOES accrue whilst employee is absent on sick
leave BUT
 Workers may not take holiday while on sick leave; AND
 Post-termination of contract, workers are entitled to compensatory
payment to reflect accrued but untaken holiday leave, even if worker
was on sick leave for full holiday year
3) Apply facts
4) What other information is required
5) Remedies (Reg 30)
 ET enforces claims for rest break rights + annual leave
 Health / Safety Executive monitors 48 hour week – criminal sanctions (Schedule 3)
6) Practical Solutions
 Reassess work load
 Come into work later

AGENCY WORKERS REGULATIONS 2010

 Reg 3: Meaning of ‘agency worker’
 Agency workers enjoy same basic working conditions as full-time staff:
o FROM FIRST DAY RIGHTS
 Reg 12: Agency worker has rights to access collective facilities
 Reg 13: Agency worker has rights relating to access to employment
 being informed of relevant vacant positions
o AFTER 12 WEEKS RIGHTS
 Reg 7(1) + (2): Must work in same role with same employer for 12 cont. weeks
 Reg 5: entitled to receive same basic working / employment conditions:
 Conditions of comparable worker
 Relevant terms / conditions relate to Reg 6(1)(a)-(f)

Remedies
 Claim against HIRER
o Reg 12 + 13
 Claim against AGENCY OR HIRER
o Reg 14: Liability of temporary work agency / hirer

, o Reg 18: Can bring claim to ET if right infringed
o Reg 18(4): Must bring claim within 3 months

ZERO HOUR CONTRACTS

 Contract in which the employer does not guarantee any work
o Usual test applies – if standard terms for zero hours:
 NO employment relationship as MOO will be lacking; BUT
 May be a WORKER protected by WTR
 s153 Small Business, Enterprise & Employment Act 2015
o EXCLUSIVITY CLAUSES = banned / unenforceable
 s27A(3) ERA 1996: any provision is unenforceable if it prohibits worker:
o doing work / performing services under another contract / other arrangement
o doing so without the employer’s consent
 s27B ERA 1996 / Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015
o Facilitates claim for detriment / automatic unfair dismissal if reason is that worker (or
employee) has breached an unenforceable exclusivity terms

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