Employment Law

Common Law tests of employment

Control Test - the power of deciding the thing to be done, the means to be employed. The time when and the place where is shall be
done. - Problem - Skilled and professionals might no be classified
Integration Test - Mans work is done as an integrated part of the business. Contracts for services (Not a contract of employment)
although done, not integrated.
Economic Reality - Is the worker providing a service on his own account? Yes, not a contract, No= Contract of service
Who provides tools?
Hire their own helpers
Financial risk taken?
Do they profit from own good work?
The Mutuality of obligation test
1st Part - exchange of work and remuneration
2nd Part - Exchange of future performance and obligations. - Do they have do do it? Will it be a breach of contract
OKelly v. Trusthouse Forte plc (1983) - Waiters called daily to perform work. Not obliged to do so, so not an employee.
The Multiple Test
Ready Mixed Concrete Ltd v. Minister of pensions and National Insurance (1968)
1. are they doing it for a wage
2. subject to someones control.
3. Other provisions = consistent
Atypical Workers
Irregular working patterns - part time and seasonal/sessional work
Casual Workers
Agency Workers
Workers are not employees
Discrimination, minimum wage and working time applies to workers
equal treatment legislation - part time, Fixed term and agency workers

Contract of Employment
Formation
Statement of written Particulars
Express and Implied Terms
Continuity of employment
Employment Rights Act 1996
certain rights
Any week that the employee partakes in strike doesnt count towards continuity
Formation of the contract of employment
Can have an oral employment contract
Statement of terms required by ERA 1996
within 2 months of continuity commences
Written Particulars
Not necessarily a contract
good evidence of a contract
Strong Prima Facie evidence
What to include in Written Particulars
Name of the Employee
Date on which employment began
Job title & Place of Work
Pay
Hours per week
Date of the end of contract
Sick Leave
Pension agreements
Notice periods
Disciplinary procedures

Contract Terms
Expressed Terms Implied terms - in the contract by:
- Statute
- Custom and Practice
- necessity
Express Terms
- Often cover same terms as the written particulars
- Other Examples such as - Mobility Clauses, Confidentiality, Restrictive Covenants - Not allowed to compete/take clients in small period.
- Cant vary the contract without the employees consent
Implied Terms
The custom and practice relied must be reasonable, certain and notorious (Well Known)
Terms implied by Law - Duty of co-operation/mutual trust and confidence.
Duties owed by employees
Duty of faithful service/loyalty
Duty to obey Lawful and reasonable orders
Duty not to accept bribes
Duty to use reasonable care and skill
Duty not to revel confidential information - Faccenda Chicken v Fowler (1986) not allowed to share trade secrets after employment ends
Duty of disclosure
Duties owed by the employer
Duty of Co-operation or mutual trust and confidence
Duty to provide work
Duty to pay wages
Duty of Confidentiality
Duty to insure
Duty to indemnify - compensate for loss.

Termination of employment
5 ways to terminate
- Termination by employer
- Termination by employee
- Performance - when the time expires/ project complete
- Agreement
- Frustration
Termination by employer
Futty v Brekkles (1974) - You dont like this job you can fuck off! not unfair dismissal.
Notice - S. 86 ERA 1996
1 Month - 2 Years = 1 Week Notice
2 Years - 12 Years = 1 week for every complete year
12 Years + = 12 weeks minimum
Frustration
ends contract at the time of frustration
not a dismissal
no need of acceptance or affirmation by the innocent party
death, illness, imprisonment
Legal calims arrising from dismissal
Wrongful Dismissal
Unfair Dismissal
Redundancy Pay
Wrongful Dismissal
Common law based
dismissing an employee without notice - (A breach of contract)
Wrongful, Unless:
Response to gross misconduct by the employee
Damages limited to notice pay

Unfair Dismissal
Protection from the ERA 1996
Protection only for employees
2 years continuous service
three months to bring an unfair dismissal claim
Appeal to the employment Appeal Tribunal only on question of law
Examples of Automatically unfair dismissal
Dismissal for claiming a statutory right - minimum wage
pregnancy/childbirth
health and safety cases
Whistleblowing
working time regulations
trade union membership of lawful union activity
Express Termination
Termination by employer
Expiration of a limited term contract - not renewed - show that should have been renewed can indicate unfair dismissal
constructive dismissal - employee may be forced ti terminate the contract with or without notice due to the employers conduct Western Excavating Ltd v. Sharp (1978) - the employer must have done something significant, not just being a little annoying.
the burden of disproving unfairness lies with the employer
Must prove:
- there were grounds for dismissal
- that in the circumstances it is fair
Dismissal for potentially fair reasons
Capability or qualification
Conduct
Redundancy
Contravention of a statutory duty or restriction
Some other substantial reason

1. Lack of qualification or capability

- The missing qualification must be essential to the proper performance of the current job
- Negligence - An act of gross negligence may justify dismissal, this is due to the fact that it could endanger 3rd parties and increase the
companies liabilities.
- If the employees lack of capability can be attributed to the employer then dismissal is deemed as unfair.
- Long-term sickness - if the illness places an unreasonable burden on the employer and the employer enquired with medical advisers,
the employer may have grounds to dismiss the worker fairly.
2. Misconduct (Lying, fighting, theft and dangerous, careless behaviour & sleeping with employers wife)
- Community integrated care Ltd v De Smith - A carer swore at one of the residents at the care home. This was defined as gross
misconduct and reflects her personality and could happen again.
3. Redundancy
- Warning and consolation
- Suitable work investigated
- Objective selection criteria, fairly applied
4. Statutory restriction
- if the employee lost their driving licence and it was central to their job description.
5. Other Substantial reason
- Gorfin v Distressed Gentlefolks Adi Association (1973) - It was held that dismissal because of a personality clash may be reasonable if
other reasonable steps have been taken before.
Fair Dismissal
S.98 Chapter 4 of ERA 1996 - Was it fair to dismiss that employee for that potentially fair reason?
Band of reasonable responses test (Iceland Frozen food v Jones [1982]) ---- If a band of reasonable employers would dismiss = not
unfair, if none would dismiss = unfair.
Reasonable steps must have been taken by the employer to justify the dismissal of an employee.

Remedies for unfair dismissal

Reinstatement - Ordered by the employee themselves
Re-engagement - The employer will have to find a reasonably comparable job for the employee
Compensation:
- Basic Award - An employee aged:
- 18-21 = 1/2 a week per year of service
- 22-40 = 1 week per year of service
- 41-64 = 1&1/2 week per year of service
If the employer failed to observe statutory dismissal, this would be raised to 4 weeks
Compensatory Award - Redress losses arising from the dismissal, up to 87,700 can change.
Additional Award - Where an employer fails to reinstate or re-engage an employee. 26-52 weeks pay.
would be reduced if the employee played a part in the dismissal.
Redundancy
Redundancy occurs when an employee is dismissed because:
- The business is to close.
- The employer requires fewer workers to do the job.
Redundancy Pay
Eligibility:
1. 2 Years of continuous service with the employer
2. Must have employee status (Not a Worker)
3. Dismissal, Within the ERA 1996, must not be working any longer and must not have voluntarily left.
4. Redundancy - Business ceases to carry on Or, few employees needed.
Change of Location:
If it is in the contract of the employee, this is not cause for dismissal,
If it is not termed in the contract, then this could constitute to constructive dismissal.
Offers of Suitable Alternative employment:
If the employer can show reasonable sensitivity involving the employee/s and the offer of employment is not unreasonable then the
employees have not been made redundant

Time Limit on Redundancy Claims

Must be started within 6 months of termination/end of the employees contract
Financial Entitlement
- 18-21 = 1/2 a week per year of service
- 22-40 = 1 week per year of service
- 41-64 = 1&1/2 week per year of service
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Protection against discrimination

Protected Characteristics
Sex discrimination
Marital status
Pregnancy
Transexuality gender dysphoria
Equal pay
Race discrimination colour, ethnic group, race, national origin
Sexual orientation
Religion or belief (including philosophical beliefs)
Disability
Age

Meaning of disability
Continuous issue - long term (12months +)
physical or metal impairment which has a substantial effect on the ability to perform day-to-day activities
Doesnt include some personality disorders and addictions.
Religion or Belief
Includes the lack of belief
[Grainger v Nicholson 2009] i) the belief must genuinely held, ii) must be a belief, not an opinion

Direct discrimination - treated less favourably because of a protected characteristic

Motive irrelevant unless age.
Occupational Requirements
Indirect Discrimination - rules or conditions that are applicable to the whole workforce, but discriminatory/disadvantage to members with a
relevant characteristic. - Cant be justified.
Harassment's - Equality Act s. 26
A person engages in unwanted conduct related to a protected characteristic, and
The conduct has the purpose or effect of:
- Violating Bs dignity
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Disability Discrimination
- A duty to make reasonable adjustments
Positive Action
Public Sector Duties
Positive discrimination permitted in recruitment or promotion where:
- Equally Qualified
- Disadvantage of a particular group

Capability
Incompetence
Training
warnings and chance to improve
Sickness
Investigation
ACAS Code of Practice - guidance to employers of how to fairly dismiss their employees
Conduct
Employer must have an honest belief in the guilt of the employee, on reasonable grounds, after a reasonable investigation - BHS v
Burchell [1957])
Was dismissal a fair sanction?