A Distinction-level comprehensive set of study notes covering the Employment module on the LPC. It is designed to be direct and to the point by covering the technical aspects in a practical sense. Each part of revision notes can be applied directly to exam questions on each topics during an exam.
Tribunal jurisdiction- only up to £25,000. Beyond that, must use civil courts.
Rights available to employees only: Rights available to all workers:
• Written pay statement • National minimum wage
• Written statement of contract • Protection against unlawful deductions
• Statutory minimum notice • Equal pay
• Protection from unfair dismissal • Working hours and breaks
• Statutory maternity pay and leave • Holidays
• Statutory paternity pay and leave • Union recognition where majority in favour
• Statutory adoption pay and leave • Not to be refused work on grounds of union
• Parental and dependency leave membership
• Right to request flexible working • Time off for union duties and training
• Time off for recognised union activities
• Protection on business transfer
• Protection against discrimination.
• Redundancy pay
• Guarantee pay on lay offs
• Medical suspension pay
Worker-defined by s 230 (3)ERA 1996-
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 it is express) whether oral or in writing, whereby
the individual undertakes to do or 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.
Test for determining status: employee or independent contractor
Definition of employee: ‘an individual who has entered into or works under … (or, where the employment has
ceased, worked under) a contract of employment.” (s 230 (1) ERA 1996)
Definition of contract of employment: ‘“ a contract of service or apprenticeship, whether express or implied, and (if
it is express) whether oral or in writing.”
Contract OF service= Employee Contract FOR serviceS= independent contractor/ self-employed
Three tests:
1. Control test- can the employer control not only what is done but how it is done? (Unsuitable for skilled
workers)
2. Integration test- is the person’s job an integral part of the business, or more of an accessory? ‘part and
parcel test’- is the worker involved in administrative duties/ managerial decisions?
3. Multiple test- a mix of the two tests alongside the following factors (as per Ready Mixed Concrete case):
• Mutuality of obligations- agrees to do work in consideration of remuneration
• Sufficient degree of control- how to do work, what to do, when to come in
• Must not be a ‘sham contract’- not enough to see how the contract describes them: do they pay
their own tax, insurance, unisforms, materials?
• Can send substitutes? If from a specific approved list- employee ( Macfarlane v Glasgow City
Council); If can freely delegate-unlikely (Premier Groundworks v Jozsa)
, • Who’s taking the economic risk-if on worker (e.g. find clients, negotiate precies)- then possibly self-
employed ( Strigfellow Restaurants v Quashie)
• Who provides tools? Holiday pay? SSP?
Implied and Express Terms of the Employment contract
Express terms:
These can be either written or oral.
Some information has to be given in a written statement within 2 months as per s 1 ERA 1996:
• Name of the employer and employee
• Date employment began
• Date on which employee’s continuous employment began
• Scale or rate of remuneration
• Intervals at which remuneration paid
• Terms and conditions relating to hours of work
• Any terms and conditions relating to entitlement to holidays, sickness benefit and pensions
• Length of notice to determine employment
Job title/job description
• Period for which employment is expected to continue
• Place of work
• Any applicable collective agreements
• Details relating to employee working outside UK
• Certain information about disciplinary & grievance procedures
Implied terms:
Employer’s duties:
Duty to pay employee-right to reasonable compensation-either one agreed by contract or at least
minimum wage
Duty to provide work- not if the employee is paid in any event; but there may be an obligation for
piece rate workers where earning capacity depends on working
Duty to indemnify employees- for expenses carried out during work duties
Duty to take reasonable care of the employee’s safety- can get damages, or if serious enough, resign and claim
damages for wrongful repudiation
3 aspects to the duty of care:
• Safe employees
• Safe place of work
• Safe system of work
Sutherland v Hatton - guidance on stress cases:
1. Ordinary principles of employers’ liability apply. The test is the same for all types of work.
2. The issue is whether this kind of harm to this particular employee was reasonably foreseeable (i.e. an injury
to health attributable to stress at work).
3. Foreseeability depends on what employer knows or ought reasonably to know about the employee.
Relevant factors are:
• The nature of work done by employee; and
• Signs from the employee of impending harm to health
, Once the risk of harm from stress in the workplace is foreseeable, the employer is under a duty to take steps to
safeguard the employee from harm arising from stress at work.
Duty of mutual trust and confidence- Employer must not without reasonable cause act in a way which damages the
relationship of trust and confidence which exists between employer and employee. A breach of this goes to the root
of the contract
Horkulak v Cantor Fitzgerald International-highly paid employee, suffering serious bullying and harassment by the
CEO, which cause extreme stress and anxiety. Enough to get damages.
Employee’s duties:
Duty to provide personal service-be ready and willing to work. Usually cannot delegate.
Competence
Reasonable care in performance of duties
Obedience- provided the order is within the scope of the contract
Duty of trust and confidence – Williams v Leeds United Football Club-even if the misconduct happened years prior to
the dismissal it was still fair
Duty of good faith/fidelity- must be honest, disclose misdeeds, devote the whole activities to his employer during
hours of work
Duty of confidentiality- Faccenda Chicken v Fowler- during employment cannot disclose any type of confidential
information such customers, manufacturers, suppliers, pricing policies and customer requirements. Once
employment ends, only required t keep trade secrets or highly confidential information. To determine whether
information is confidential enough to amount to a trade secret consider:
1. The nature of the employment;
2. The nature of the information;
3. Whether the employer told the employee to regard the information as confidential; and
4. Whether the information could easily be isolated from other information which the employee was free to
use.
Cannot make lists of existing customers or purposely memorize such a list with the intention of using it after the
employment ends
Post termination covenants include the following:
1. Non-competition clauses – these prohibit the former employee from engaging in a competitive activity
2. Non-solicitation clauses – these prohibit the former employee from soliciting the custom of clients of his former
employer
3. Non-dealing clauses – these prohibit the former employee from dealing with clients of his former employer,
irrespective of whether the ex-employee initiated the approach
4. Non-poaching clauses – these prohibit the former employee from enticing away his former colleagues
PRIMA FACIE VOID. The employer will need to show:
1. It has a legitimate business interest requiring protection;
2. The post-termination covenant is reasonably necessary to protect the legitimate business interest; and
3. The post-termination covenant goes no further than reasonably necessary (taking into account the nature of
the employee’s employment, exactly who/what is covered by the covenant, the duration of the covenant, and its
geographical scope, where relevant).
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