Employment Law

  • Created by: Lucy
  • Created on: 18-07-15 14:36
Why its important distinguishing Employees from self-employed
Employers are vicariously liable for the acts of employees. Self-employed are liable for own actions. Employees have more rights, Tax rule are different for employees + contractors
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How courts decide between Employees and self-employed
MICE - Mutuality of intention - have to go to work ? Integration - Part of the system ? Control - Employer telling you what to do? Economic reality - Equipment, holiday pay etc
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If employed who controls how and when work is done ?
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If self-employed who controls how and when work is done ?
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If you are integrated with others in the organisation even though employer may not control day to day activities
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Are Self-employed contractors integrated ?
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Whats the Service if you are employed ?
Contract OF service
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Whats the service if you are self-employed ?
Contract FOR services
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Agency Workers depend on the contract for who
Employed and Self-employed
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Who is entitled to sick pay, benefits, holiday pay ?
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Who uses own tools and equipment
Probably Self-employed
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Who has a right to delegate to others ?
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Who wears unifrom
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Employment Contract
Oral or written
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Main terms of employment contract
Names of employee + employer, date of commencement, job title, notice period, pay rate + intervals, hours of work, holiday + pay, arrangement for sick leave/pay, disciplinary + grievance procedures or ref where found.
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If not provided a employment contract where can you apply to get one
Employment Tribunal
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Common law duties
implied into contract
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Overriding duty of mutual trust + confidence includes
Reasonable care of employees, provide safe system of working, pay employees, indemnify employee against expenses + losses in course of employment, take care of health + safety, select fit + competent fellow workers.
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Employers have no duty to protect what of employees
property, provide references, provide smoking facilities, provide flexible working.
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Employee Fundamental duty of faithful services include
Not to compete with employer, competence to do job, obedience, account for money + property recieved during course of employment, exercise reasonable skill + care, not to delegate duties without permission.
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Statutory duties - pay
Minimum wage, itemised payslip, statutory sick pay, not paid by employers own funds, statutory maternity/paternity pay, SMP if 26 weeks service by 15th week before expected confinement.
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Whats the working time regulations
48 hours max over 17 week average, employee can opt out in writing.
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What the minimum days for holiday
28 days, mutually convenient time
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What the minimum break period
20 minutes rest in 6 hour + shift, 11 consecutive hours rest in 24 hours, 24 hours in 7 days.
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You get paid time off for what ?
Ante-natal care, trade union official performing duties, trade union members attending branch meetings, Maternity leave (52 weeks) + Paternity leave
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Can employer turn down flexible hours ?
Yes - duty to consider but can say no.
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If health and safety is breached it is a what
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Health and safety at Work Act 1974 states what ?
The duty of employers, as far as it is practicable, to ensure health and safety and welfare of employees.
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Health and safety at Work act 1974 requirements include
Statement of policy, insure against risk, assess risk, adequate information, training + supervision, safe systems, equipment + place of work, adequate access, healthy environment, employer always liable for injury caused by faulty equipment.
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What can a Health and Safety Inspector issue
Improvement orders (work can continue), prohibition orders (work must cease), criminal action (but not civil actions)
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What are the Automatica unfair reasons for dismissal
if related to trade unions activities, pregnancy, if related to health + safety representation, on basis of a conviction that is how spent, whistleblowing, trying to enforce statutory employment rights.
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Whats the minimum period if dismissed for automatically unfair reasons
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What are the other unfair reasons for dismissal
Selection for redundancy, unfair reason
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What are excluded from the protection of unfair dismissal legislation
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What are the remedies for unfair dismissal
Conciliation- if 1 party requests it, ACAs will try resolve before issuing to Tribunal, reinstatement- same job same role, re-engagement- same job different role, compensation - statutory formula
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What is a basic award
A statutory defined maximum linked to age and service. Treated as statutory redundancy
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What is compensatory award
Based on actual net earning, including benefits (statutory limit)
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What is punitive additional award
Available if employer fails to comply with order of reinstatement or re-engagment
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Redundancy can be given to those with what minimum service
2 years minimum
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Reasons for redundancy
reduction in head count or fewer at location or that level
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It is not redundancy when
employees contract requires them to work at places other than their present place of employment and employee relies on this.
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If A job is abolished and A is moved into B's job and B is dismissed, is this redundancy
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What happens if a redundant employee unreasonably refuses offer of future employmen
they lose their entitlement to redundancy pay
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Whats the trial period an employee is entitled to in the alternative employement
4 weeks
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What happens if alternative employment is terminated - by either employee or employer
treated as case of redundancy at expiry date of the old employement
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The employee must qualify for redundancy by
Having been continuously employed for at least 2 years, having been dismissed (or laid off = 4 weeks or put on short time = half normal pay) and reason for their dismissal being redundancy
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How is pay calculated
with reference to age and length or service with a weeks' pay taken in final week of employment.
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Where are disputes heard
In Employment Tribunal
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Where are Appeals made to
Employment Appeal Tribunal
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Transfer of undertaking, protection of employment regulations (TUPE) means
take your rights from your old job with you
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When can the contract be varied
If there are justifiable technical or organisational reasons for doing so
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Constructive dismissal is
when employer commits a serious breach of employment contract + employee leaves as a result of the breach
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what is not constructive dismissal
Failure to promote employee
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When does constructive dismissal happen
When Employer repudiates a vital term of the contract + employee resigns because of the repudiation
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Who's liable for breach
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Who can claim for unfair dismissal
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What must the employee show
That the breach was serious (e.g. major change in duties)
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Kevin Keegan V Newcastle united football club 2010
K resigned as manager of NUFC after a player was signed by the club against his wishes by NUFC's director of football. K felt had no option but to resign. Held: K awarded £2m damages for constructive dismissal
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MICE - Mutuality of intention - have to go to work ? Integration - Part of the system ? Control - Employer telling you what to do? Economic reality - Equipment, holiday pay etc


How courts decide between Employees and self-employed

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