Flashcards in Employment law - Employment Rights Act 1996 Deck (39)
Why it is important to recognise the contract of employment
Some may avoid employment contracts for tax and other reasons, but during adversity try to benefit from the protection provided by ERA 96 - comes down to benefits you can potentially receive
What is the beneficial and legal difference between self employed and employee
More rights and protection for an employee, as employer cannot take an advantage of the employee, but self-employed cannot enjoy these benefits
Define an employee
An individual who works or has entered into a contract of employment
How is a contract defined between employee and employer?
A contract of services, either express or implied.
What is a "multiple test"
It is how courts determine is a person an employee or a contractor, they look at certain factors that need to be present at the eyes of court and all the other relevant characteristics of the relationship to determine if they are consistent with a contract of services.
Obligations to fulfil the contract (whatever it takes to fulfil them). There needs to be a minimum level of mutual obligations between parties.
e.g. OBLIGATION an employee needs to establish the employer is under an obligation to provide work to them and that they are under equivalent obligation to perform that work.
What applies to most cases of employment
-Work must be performed personally by en employee in exchange for wage while under supervision of the employer, no right to delegate!
What applies to most cases of contractor
-Ability to delegate, the ability to arrange for a substitute to perform the work will usually defeat any claim of a contract of employment.
-Bears the financial risk
-Provides own equipment
-Pays their own taxes
What are other provisions of the contract that align with claim for employment? (8)
-Fixed hours of work
-Eligibility for sick or maternity pay
-Provision of pension scheme
-Other similar obligations
-Employer bearing financial risk
-Employer provides equipment and tools
-Employer pays the tax and national insurance
Tell about workers rights under ERA 1996
Statutory rights that an employee is entitled to, some statutory rights go further than the benefit "workers", a wider category which includes employees and also the others who work under a contract for service (the self-employed)
E.g. Working time rights, paid annual leave, discrimination laws
Tell about agency workers and their rights
Often exploited, the agency status the workers are deprived basic employment rights which require employee status.
LACK OF MUTUALITY is the reasons which e.g. unfair dismissal cases fail, the agency assumes no obligation to offer work, and if offered, no need for it being accepted or performed.
Tell about the terms and conditions of an employment
Not an contract itself, written statement of particulars!
Under ERA 96, an employer is required to provide a written statement of employment particulars to an employee within 2 months of employment commencing.
What does a contract need to contain? (11)
DOES NOT ITSELF PROVE EMPLOYEE/EMPLOYER RELATIONSHIP
-Names of parties
-Date when employment began
-Remuneration details, wages, bonuses
-Hours of work
-Terms and conditions in relation to holidays, sick pay, pension
-Job title of description of duties
-Place of work
-Any end date if a fixed term contract
-Details of any collective agreements
-Details of disciplinary procedures
also e.g. union representation rights, legal representation rights or do they provide counselling or health benefits
Tell about collective agreements
A further source of terms and conditions. These agreements are usually made by or on behalf of one or more trade unions or associations. Such agreements by themselves are not enforceable by law, but they become incorporated within a contract of employment, they will be enforceable. (Usually main idea is to create good publicity in terms of being an employer as providing these benefits.
Tell about wages
The contract of employment will determine the level and extent of wages payable. Employer must comply with the National Minimum Wage Act 1998, which requires a standard rate of pay per hour (subject to an annual review in October each year)
Tell about Hours
Hours are regulated by the contract of employment subject to provision of the Working Time Regulations 1998. This act provides for an average weekly maximum limit of hours worked, an entitlement to paid annual leave, a daily rest of so many hours in a 24h period and the right to a rest break in a work shift of a certain numbers of hours.
Tell about maternity rights
There are numerous maternity and family-friendly rights which now accrue under a contract of employment. Rights for father as well!
Tell about Implied duties
Obligations that are implied by common law into every contract of employment
Implied duties from employee side
The employee is expected to Give faithful service, obey lawful orders and to exercise reasonable skill and care
Implied duties from employer side:
The employer is expected to provide work, reasonable care in relation to health and safety at work, to exercise discretion under the contract so as to not render the performance of the contract impossible.
Tell about notice rights
The parties to a contract of employment will agree to appropriate periods of notice. If no such provision exist, a reasonable period can be implied at common law.
(There are statutory notice periods which are based on a sliding scale based on the time period of employment for the employee and the employer is entitled to at least one week's notice(more if part of the contract of employment))
Tell about breach of contract and wrongful dismissal
Can go to tribunal or court. The rights to contractual or statutory notice do not apply where the contract is terminated due to the other party's conduct. When an employer terminates the contract in breach of contract (i.e. not giving proper notice or failing to follow disciplinary procedure) an employee will be able to claim damages for wrongful dismissal.
Who has rights in case of unfair dismissal?
Section 94 of the ERA 96 confers not to be unfairly dismissed.
The right is generally restricted to employees with a certain continuous period of service.
What is a dismissal
Dismissal is given a statutory meaning and extends beyond termination of employment contracts by an employer.
Section 95 of the ERA 96 provides that a dismissal arises in relation to:
-Termination to the employer, with or without notice
-Termination of a limited-term contract by virtue of limiting the event and which is not renewed
What is constructive dismissal
This is when an employee resigns in response to a material or fundamental breach of contract by the employer. Able to raise this issue in tribunal
What are potentially fair reasons for dismissal?
Unless the employee establishes dismissal for an automatically unfair reason, the employer is under onus to establish that the dismissal was for one or more potentially fair reasons.
What are actually the potentially the fair reasons for dismissal?(5)
-Capability or qualifications no longer adequate to perform the role
-Conduct of employee
-Inability to continue the employment without breaking a law
-Some other substantial reason of a kind such as to justify the dismissal
What is reasonableness
Once the employer establishes a potentially fair reason, the tribunal must determine if the dismissal was fair or unfair. This requires regard to the circumstances in regards to the decision by the employer to dismiss, if the decision to dismiss falls within a "band of reasonable responses" the dismissal is fair
Explain A band of reasonable responses
You ask other similar professions what they would do in these conditions. UNDER ERA 96