LPC Notes - Employment Law & Practice
Distinction level notes for Employment Law & Practice
The University of Law specific (2022)
- WS1 Employment Relationship
- WS2 Wrongful Dismissal
- WS3 Unfair Dismissal
- WS4 Redundancy
- WS5 Direct Discrimination
- WS6 Indirect Discrim...
Identify the principal clauses required by s.1 Employment Rights Act 1996
Understand the potential remedy an employee or a worker has if these requirements are not
met.
Identify statutory restrictions on freedom to contract in employment contracts.
Draft additional clauses to meet the s.1 Employment Rights Act 1996 requirements and also
the specific requirements of an employer.
Advise as to the enforceability of post-termination duties.
Unit Workshop Tasks
In this unit workshop, you will:
Review the draft contract and identify where amendments may be needed in accordance with
the client’s instructions or as a result of statutory restrictions.
- You should be prepared to suggest what amendments you would propose to the client
and explain the reasons for your suggested amendments.
Identify the potential risks to an employer if a written statement of terms or contract that
complies with statutory requirements is not given to employees or workers.
Analyse a restraint of trade clause, evaluate its enforceability, and advise on the post-
termination duty of confidentiality.
Contents
Definition of an Employee 2
Principle clauses in an Employment Contract 3
Terms & Conditions Checklist 7
National Minimum Wage (April 2022 Rates) 8
Disputes about the statement 9
Implied Terms in Employment Contracts 10
Restraint of trade 13
Enforcement 17
Exam style question/answer 18
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, EMPLOYMENT LAW & PRACTICE
Definition of an Employee
(Ch1.3.2 p11)
Employee ❖ s230(1) ERA 1996: “an individual who… works under… a contract of
employment”.
❖ s230(2): “Contract of Employment” –
o “A contract of service… whether express or implied and (if it is express)
whether oral or in writing”.
Identifying a ❖ The “Multiple Factor” Test:
Contract of 1. Ready Mixed Concrete (Southeast) Ltd v Minister of Pensions and
Service National Insurance [1968] 1 All ER 433:
▪ Three conditions for a Contract of Service:
1. Servant agrees to provide work in consideration for a wage.
2. Servant agrees, expressly or impliedly, that he will be subject
to the master’s control in a sufficient degree.
o Does the employer have “the power of deciding the
thing to be done, the way… the means… the time… and
the place?” – McKenna J, Ready Mixed Concrete
3. The other provisions of the contract are consistent with it
being a contract of service.
o E.g., ability to delegate may be indicative that there is
NOT a contract of service.
2. The Court will look at the true nature of the agreement, not just what is
written down:
▪ Autoclenz ltd v Belcher [2011] UKSC 41: Supreme Court held that car
valets were employees. Written terms in the agreement providing
that the valets were required to notify whether or not they were
turning up for work, and that they could send a substitute in their
place were not reflective of the true relationship between the
parties.
Workers ❖ Certain rights apply to “workers” as well as employees e.g.
(1.3.3 p17) 1. National Minimum Wage Regulations 1999
2. Working Time Regulations 1988
3. Part-Time Workers (Prevention of Less Favourable Treatment) Regulations
2000
❖ All employees will be “workers” (s230(3)).
1. Both work “under a contract of employment”.
❖ However, workers can also be those who are not “employees” but are (s230(3)):
1. Individuals who have entered into a contract.
2. With another party for work or services.
3. Which they undertake to perform personally.
4. The other party is not a client/customer.
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, EMPLOYMENT LAW & PRACTICE
Principle clauses in an Employment Contract
✓ There is NO requirement that a contract of employment be in writing; it is perfectly possible for an
employment contract to be written, oral or a mixture of both.
✓ Where there is no employment contract, however, an employer is under a duty to provide
employees with a Written Statement of Terms under s1 ERA 1996.
Written Statement of Terms – s1 ERA 1996
(1.4.2 p 35)
What the Statement Should Include:
❖ Identity of the Parties
❖ Date Employment Began
❖ Date Continuous Employment Began
❖ Whether the contract is subject to a probationary period;
❖ Scale or Rate of Remuneration and Intervals of Pay, and any benefits
❖ Hours of Work
❖ Holiday and Holiday Pay
❖ Sickness and Sick Pay
❖ Pensions and Pension Schemes
❖ Details of any training that will be provided
❖ Length of Notice required to determine the contract
❖ Job Title or Brief Description of the Work
❖ End of a Fixed Term
❖ Place or Places of Work
❖ Rules Relating to Work Outside of the UK
❖ Details of Disciplinary Rules and Grievance Procedure
❖ Whether a contracting out certificate is in force (under the Pension Schemes Act 1993)
NB:// If there are no particulars to be entered under any of the headings above, that fact must be
stated s.2(1) ERA 1996.
What The Relevant Explanation
Statement Should Section
Include
Identity of the s1(3)(a) ❖ Names the employee and the employer.
Parties
Date s1(3)(b)
Employment
Began
Date Continuous s1(3)(c)
Employment
Began
Scale or Rate of s1(4)(a)-(b) ❖ E.g., weekly, monthly intervals? Etc.
Remuneration ❖ Must pay employee at least the National Minimum/Living Wage
and Intervals of (see table below).
Pay
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, EMPLOYMENT LAW & PRACTICE
Hours of Work s1(4)(c) Working Time Regulations 1998
❖ 48 Hour Working Week
o May not work more than an average of 48 hours per week.
o Average is calculated over a reference period; normally 17
weeks.
▪ Workers may agree in writing to opt-out of this.
▪ Such agreement is always terminable by the worker
giving 7+ days’ notice to the employer in writing.
▪ A worker cannot be forced to agree to opt-out; any
dismissal as a result will be automatically unfair.
❖ Daily Rest Period
o 11 consecutive hours’ rest in every 24-hour period.
❖ Weekly Rest Period
o Uninterrupted rest period of not less than 24 hours in each
7-day period.
o Can be averaged over a 14-day period i.e., two 24-hour
periods or one 48-hour period of rest over 14 days
o Reference period ends at midnight Sunday every week.
❖ Daily Rest Period
o 20 mins rest if working day is 6+ hours.
Holiday and s1(4)(d)(i) ❖ Should state how many days holiday the employee is entitled to.
Holiday Pay
1.8.3.4. ❖ Minimum 28 days including Bank Holidays (Working Time
Regulations 1998)
o 20 days (Article 7 Working Time Directive 93/104)/(Reg 13(1)
Working Time Regulations).
o + 8 days to compensate for bank holidays (Reg 13A WTR).
❖ There is no right to get an actual bank holiday off; only to get the
equivalent of 8 bank holidays + EU minimum of 20 days.
❖ Joiners
o Get an amount proportionate to the remaining leave year
they have to work e.g., if holiday year runs 1st Jan – 31st Dec,
employee joins on June 1st (halfway through the year), they
will be entitled to 14 days holiday for that year.
❖ Leavers
o Have the right to be paid in lieu of any untaken leave.
o If the leaver has taken too much holiday (proportionately)
prior to them leaving, an employer will only be entitled to
recover payment for excess holiday if there is an express
clause to this effect (Regulation 14(4)).
❖ Leave Year
o Normally specified in the contract of employment, but not
required to be.
o If it is not:
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