Law for accountants- Employment law

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  • Created by: ElishaG
  • Created on: 11-01-20 19:47
What are differences between employees and independent contractors?
1)Employees-Contract of service. IC-contracts for service.2)E-Specified hours, wages, holidays. IC-Self-employed.3)E-Governed by common law, statute & EU law. IC-Governed by contract law.
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What is the Importance of the distinction between employees and independent contractors?
1)Vicarious liability 2)Only employees have rights under employment law 3) Employees are preferential creditors on insolvency 4) Employees are entitled to state benefits 5)Tax assessment.
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What are factors determining employment status?
1)The control test. 2)The integration test.3)The multiple (economic reality) test.
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What is the control test? Which cases are related to it?
court will consider whether employer controls the way in which employee performs their duties. Mersey Docks & Harbour Board v Coggins & Griffiths (1947). Walker v Crystal Palace (1910)
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What happened in Mersey Docks & Harbour Board v Coggins & Griffiths (1947)?
Facts-One of mersey docks crane operators let to stevedores, operator negligent and employee injured. Held-Operator was still Mersey Docks employee
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What happened in Walker v Crystal Palace (1910)?
Facts-footballer was playing football for the club, the club paid him and housed him but he decided not to play according to their instructions.The court held that the footballer was engaged under a contract of service. Held- deemed employee.
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What is the integration test? Which cases are related to it?
Court will consider whether a person’s work is an integral part of the business or whether he/she is only an accessory to it. Cassidy v Minister of Health (1951). Whittaker v Minister of Pensions (1966)
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What happened Cassidy v Minister of Health (1951)?
Facts-Claimant patient at hospital. required routine treatment to set the bones in his wrist. Negligence of doctor causes fingers to be stiff.Claimant sued for vicarious liability.Held-defendant was vicariously liable.
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What happened Whittaker v Minister of Pensions (1966)?
Facts-Trapeze artist required to do other general tasks as well as circus act implied she was an employee, not self-employed.Held-Employee so entitled to claim compensation for injuries.
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What is the the multiple (economic reality) test? Which cases are related to this?
court will consider all of the circumstances of the engagement and will take into account all of the surrounding factors. Ready Mixed Concrete v Ministry of Pensions (1968)
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What happened in Ready Mixed Concrete v Ministry of Pensions (1968)?
Facts-Lorry driver provided own lorry, maintained it etc. But it was painted in company colours. Minister of pensions claimed he was an employee.Held-he owned own equipment, he was deemed independent contractor.
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What are employment statement problem areas?
1)Temporary or casual workers-O'Kelly v Trusthouse Forte Plc 1983. 2)Home workers or outworkers-Nethermere Ltd v Taverna and Gardiner 1984. 3)Agency workers- Motorola v Davidson and Melville Craig 2001.
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What happened in O'Kelly v Trusthouse Forte Plc 1983?
Facts-Wine waiter called 'regular casual' as given work when required. Held-independent contractor as company had no duty to give him work.
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What happened in Nethermere Ltd v Taverna and Gardiner 1984?
Facts-Women who sewed trousers from home, told company when to deliver material and collect goods. Submitted time sheets.Company relied on their work.Held-employees as built up mutuality of obligation.
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What happened in Frank v Reuters Ltd 2003?
Facts- F appealed against decision that he was employee.
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What happened in Motorola v Davidson and Melville Craig 2001?
Facts-Davidson was hired by Motorola on the terms of employment agency, Melville Craig. Motorola terminated the relationship on disciplinary grounds. Davidson claimed unfair dismissal. Held-Davidson was employee as treated like one.
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What is the contract of employment?
contract of service which can be express or implied. If express, it can be written or oral. Agreement,Consideration,Intention must be present.
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What does Employment Right Act 1996 require?
employer to provide an employee within 2 months of the commencement of employment with a written statement of prescribed particulars
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What are the prescribed particulars in the written statement?
1)Names of employer & employee 2)Date when employment started 3)Remuneration details 4)Hours of work Holidays, sick pay, pensions 5)Job title 6)Length of notice 7)Disciplinary and grievance procedures`
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When must changes be notified to employees?
Within one month.
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What do employee's common law duties include?
1)To obey lawful reasonable orders.2)perform work in reasonable manner .3)exercise reasonable skill and care.4)render personal service.5)give honest and faithful service.
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What case relates to obey lawful reasonable orders?
Pepper v Webb (1968),
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What happened in Pepper v Webb (1968)?
Facts-gardener refused to plant the plants where instructed by the employer. Held- breach of the duty of obedience and this, coupled with the fact that he was rude and surly, justified his summary dismissal.
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What case relates to perform work in reasonable manner?
Secretary of State for Employment v ASLEF (1972).
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What happened in Secretary of State for Employment v ASLEF (1972)?
Facts-Railway workers ‘worked to rule’,obeyed the British Rail rule book to the letter. This resulted in considerable delays in the train service. Held-implied term that each employee in obeying instructions wouldn't disrupt rail service.
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What case relates to give honest and faithful service?
Sinclair v Neighbour (1967) Hivac Ltd v Park Royal Scientific Instruments Ltd (1946)
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What happened in Sinclair v Neighbour (1967)?
Facts-employee secretly borrowed from the shop till. He repaid the money the next day. Held-breach of the duty of good faith and, since this was a serious breach of contract, the employer was justified in summarily dismissing him.
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What happened in Hivac Ltd v Park Royal Scientific Instruments Ltd (1946)?
Facts- 2 employees of a company which manufactured sophisticated components for hearing aids worked at the weekends for a rival company.Held-injunction was granted- potential misuse of the secret information.
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What do employer's common law duties include?
1)pay reasonable remuneration.2)indemnify employee.3)provide safe system of work-Smith v Baker & Sons (1891) Latimer v AEC (1953)4)Duty of mutual co-operation.
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What happened in Smith v Baker & Sons (1891)?
Facts-Employee held drill bit whilst other employee hit with hammer. Nearby crane swing round and bricks fell on head.Held-Claimant aware of the danger of the job not consented to the lack of care-claimed damages.
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What happened in Latimer v AEC (1953)?
Facts-Factory flooded, employer put sawdust and mopped water. Employee slipped and injured. Held-mployers had not acted unreasonably. They were not liable to L for his injuries.
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Do employer’s common law duties include duty to provide work?What case relates to it?
No, but may be implied, under the business efficacy test.William Hill v Tucker (1998)
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What happened in William Hill v Tucker (1998)?
T worked as a senior dealer in betting. served notice terminate contract to work for competitor. WH insisted that he remain on the payroll for the notice period but stayed on garden leave.T argued WH in breach-refused to let him work.
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What was held in William Hill v Tucker (1998)?
Held-WH was in breach by not providing work because T had particular skills which must be exercised to maintain them.
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Do employer’s common law duties include duty to provide a reference?What case relates to it?
No,duty to provide a reference but, if one is provided, it must be truthful. Spring v Guardian Assurance (1994)
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What happened in Spring v Guardian Assurance (1994)?
claimant had worked as a representative for a company but dismissed after sale to Guardian Assurance.applied to work for the insurance company Scottish Amicable- GA gave bad reference-claimed damages for negligent misstatement..
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What was held in Spring v Guardian Assurance (1994)?
Held-efendants did owe the claimant a duty of care in providing a reference, knowing that a bad one might damage his prospects of employment, they were in breach of that duty.
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What are Statutory terms of employment relevant legislation?
1)Employment Rights Act 1996 2)Working Time Regulations 1998 3)Equal Pay Act 1970.4)National Minimum Wage Act 1998 5)Equality Act 2010 6)Health and Safety at Work Act 1974.
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What rights does Employment Rights Act 1996 give?
Right not to be unfairly dismissed, a right to a redundancy payment if made redundant and a right to a minimum period of notice to terminate the contract.
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What rights does Working Time Regulations 1998 give?
Limit the hours of work to an average of 48 a week. It also gives the right to four weeks' paid leave a year and one day off each week.
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What rights does Employment Act 2002 give?
Gives parents of children under seventeen or disabled children under eighteen the right to request flexible working arrangements.employer must give serious consideration to such a request.
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What rights does Equality Act 2010 give?
Deals with protecting people from discrimination in the workplace. terms of remuneration deals not only with pay, but other terms, e.g. holiday and sick leave
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What rights does National Minimum Wage Act 1998 give?
Imposes minimum levels of pay.
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How much notice must employers give before terminating employment?
Sometimes agreed. Otherwise time depends on time worked at company. Ususally a week per year worked there if over 2 years. Often capped at 12 week.s
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How much notice must employees give before terminating employment?
employee with at least four weeks’ continuous employment must give his employer at least one week’s notice of his terminating of the contract..
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When does wrongful dismissal occur?
where the employer terminates the contract: without giving proper notice or during its fixed term.
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What is summary dismissal?
Dismissal without notice .
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Summary dismissal is usually wrongful dismissal unless the employee..
1)waives their rights or accepts payment in lieu of notice.2)repudiates the contract themselves or is in fundamental breach
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What are remedies for wrongful dismissal?
1)may sue in the County court or High Court for damages. The limitation period for claim is six years.2)ring a claim to the employment tribunal provided he does so within three months and claim for £25k or less.
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What is unfair dismissal?
employer terminates the contract without justifiable reason.
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What are requirements for unfair dismissal?
1)be employed 2 yrs.2)serve grievance notice on employer.3)claim to ET within 3 months of dismissal.4)Employee must prove they were dismissed.5)Employee must prove reason for dismissal.6)tribunal must be satisfied employer acted reasonably.7)
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What are types of dismissal?
1)Contract terminated by employer with or without notice.2)Fixed-term contract expired and not renewed. 3)Constructive dismissal.
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What is constructive dismissal? Which case relates to this?
Employee entitled to terminate without notice by reason of the employer’s conduct. Donovan v Invicta Airways (1970) and Simmonds v Dowty Seals Ltd (1978).
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What happened in Donovan v Invicta Airways (1970)?
Facts-employer pressured employee (pilot) to take abnormal risks 3x in short space of time.employee refused- relationship with management deteriorated-he left.Held- employer had committed serious breach of contract amounting to constructive dismissal
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What happened in Simmonds v Dowty Seals Ltd (1978)?
Facts-S had been employed to work on the night shift. When his employer attempted to force him to work on the day shift he resigned. Held-treat himself as constructively dismissed because of the employer’s conduct
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What are statutory fair reasons for dismissal?
1)capabilities/qualifications of employee.2)conduct of employees.3)redundancy 4)continued employment would contravene statute 5) Some other substantial reason
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When can an employer rely on reason for dismissal?Which cases relate?
An employer can only rely on given reason for dismissal when knew of it at the date of dismissal. Devis W & Sons Ltd v Atkins (1977). Stevenson v Golden Wonder Ltd (1977)
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What happened in Devis W & Sons Ltd v Atkins (1977)?
Facts-mployer dismissed the employee and afterwards discovered that the employee had been guilty of dishonesty. Held-Dishonesty was not the reason for the dismissal and therefore the employer couldn't rely on it to justify the dismissal as fair.
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What happened in Stevenson v Golden Wonder Ltd (1977) ?
Facts-technical manager took part in an unprovoked assault on employee at company social function in canteen outside work hours. Held-This was a fair reason for the dismissal, it was serious misconduct.
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What are the 2 questions in the reasonableness test?
1)Whether the reason given was sufficiently serious to justify dismissal.2)Whether the employer adopted reasonable procedures both in coming to the decision to dismiss and in the manner of the dismissal.
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What are inadmissible reasons for dismissal?
1)victimisation of health&safety complainants or whistleblowers.2)pregnancy or the exercise of maternity leave rights.3)trade union membership/non-membership/activities.4)assertion of a statutory right-paternity leave.5)unfair selection for redundanc
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What are remedies for unfair dismissal?
1)Reinstatement – Employee treated as if not dismissed- Return same job with no loss of seniority- only if employee wishes.2)Re-engagement – Employee given comparable employment. failure to comply r reinstatement results in compensation.
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What is the basic award for unfair dismissal?
Depends on age and time worked at company.
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What is compensatory award?
up to £83,682. Based on employee’s losses and expenses. Reduced if the complainant contributed to his dismissal.
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When is an additional award given?
1)employer ignores an order for reinstatement or re-engagement.2)dismissal is unfair because of race, sex or disability discrimination.3)eason cited for dismissal is .an inadmissible one
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When is an employee made redundant?
1)employer ceased/intends to cease, business for purposes for which employee has been employed.2)employer ceased/intends to cease to carry on the business in place where employee employed.3)requirements for particular job ceased.
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What must be done if over 20 employees are to be made redundant within 90 days?
1)notify the Department for Business, Energy and Industrial Strategy.2)consult with workplace representatives-union rep,employee rep etc.
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When must consultation start?
When redundancy proposals in formative stage and at least:30 days before the first redundancy when 20-99. Or 45 days in advance where there are 100+.
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What is the procedure?
1)Continuously employed 2 yrs.2)claim to tribunal within 6 months of dismissal.3)employee must prove dismissed and not made redundant.4)If found redundant, pay as per basic award for unfair dismissal.
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How is redundancy pay calculated?
same way as the basic award for unfair dismissal.
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When is an employee not entitled to redundancy pay? What case is relevant?
unreasonably refuse an offer of fresh employment to start within 4 weeks. Taylor v Kent County Council (1969)
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What happened in Taylor v Kent County Council (1969)?
facts-T was headmaster of a school, 2 schools combined and new headmaster appointed.T offered employment standing in for short periods in understaffed schools-same salary. Held-entitled to reject this offer and claim a redundancy payment.
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1)Vicarious liability 2)Only employees have rights under employment law 3) Employees are preferential creditors on insolvency 4) Employees are entitled to state benefits 5)Tax assessment.

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What are factors determining employment status?

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Card 4

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What is the control test? Which cases are related to it?

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Card 5

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What happened in Mersey Docks & Harbour Board v Coggins & Griffiths (1947)?

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