Employment Law MASTER Notes PDF

Unit 1 ====== The Advisory, Conciliation and Arbitration Service (ACAS) -- provides free and impartial advice to employers and employees. The Employment Tribunal ⇒ The Employment Appeals Tribunal ⇒ Court of Appeal Is the individual an employee? - *Ready Mixed Concrete (South East) Ltd v Minister...

Unit 1 ====== The Advisory, Conciliation and Arbitration Service (ACAS) -- provides free and impartial advice to employers and employees. The Employment Tribunal ⇒ The Employment Appeals Tribunal ⇒ Court of Appeal Is the individual an employee? - *Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance* \[1968\] - Employee must be under an obligation to provide the work personally. - *Express & Echo Publications Ltd v Tanton* \[1999\] -- A term permitting substitution where the individual was unable to work, not performing work personally, not an employee. - *James v Redcats (Brands) Ltd* \[2007\] -- A term allowing substitution during cases of holiday and sickness only, making them an employee. - Must be a mutuality of obligations between the employer and employee. - *Cotswold Developments Construction Ltd v Williams* \[2006\] -- Focus on the individuals obligation to work and the employer's obligation to provide work. - *Wilson v Circular Distributors Ltd* \[2006\] -- Individual must work when the employer gives work. - Employee must be subject to the control of the employer. Can a company director be an employee? -- *Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld* \[2009\] -- Three factors to consider: - Contract of employment - Control and subordination - Mutuality of obligation Worker -- definition found in s.230(3) Employment Rights Act 1996. Are members of LLPs considered workers (and therefore entitled to whistle-blower protection)? -- *Clyde and Co v Bates van Winkelhof* \[2014\] - Key aspects to look at -- contract of employment, contract to personally perform work, and if the individual is not in business on their own account. - Court held that the fact partners have some level of control over business does not preclude them from being a worker. LLP members can be workers if providing a service under a contract. Employee Rights Employee and Worker Rights Employee, Worker and Self Employed Rights ----------------------------------------- ---------------------------- ------------------------------------------- Unfair dismissal Written statement of terms Health and safety rights Parental leave and pay National living wage Limited discrimination protections. Redundancy Paid holiday Right to make flexible working requests Whistleblowing protection Discrimination protection Gig economy -- short term contract work, temporary work and freelancing. - *Pimlico Plumbers Ltd v Smith* \[2018\] -- Court held that Smith was a worker and not self-employed because of the personal service aspect + the level of control the company had over him. - *Uber BV and others v Aslam and others* \[2021\] -- Court held that Uber drivers were workers due to the level of control executed by Uber. Unit 2 ====== There is no statutory requirement for a contract of employment to be provided to an employee. There is a statutory requirement for a statement setting out the terms of employment -- this is a s.1 statement -- Employment Rights Act 1996 Terms of a contract can only be changed with agreement to that effect, while a condition can be changed by the employer at any time if there is reasonable notice -- *Cadoux v Central Regional Council* Express terms -- terms that both parties have agreed to. Written or oral. Can be found in the section 1 statement, the offer letter, the job advert, the job specification and oral discussions at interview. Statutory implied terms: - National Minimum Wage Act 1998 - £11.44 minimum wage - Employment Rights Act 1996, s.86 - Redundancy notice periods -- one week's notice if employed between one month and 2 years. One week's notice for each year if employed between 2 & 12 years. 12 weeks' notice if employed for 12 years or more. - Equal Pay Act 1970 - Equal pay for equal work and of equal value for all employers, no matter the gender. - Health and Safety at Work etc. Act 1974 - Imposes a duty on both employers and employee to uphold health and safety at work. - Working Time Regulations 1998 - Limit the number of hours that can be worked by employees. This is the only statutory term that can be overridden. Two tests for an implied term: - It is necessary to give business efficacy. - It is so obvious that it goes without saying. *Mears v Safecar Security Ltd* -- The Court of Appeal held that when looking to apply an implied term, they must consider all the facts and circumstances before implying a term into the contract. Common law implied terms: - *Davies v Richard Johnson & Nephew Ltd* -- The employer will not prevent the employee from performing his contract of employment, or delay or hinder him & therefore preventing him from earning his full remuneration. But the employer is entitled to take steps to improve that performance to see that the work is done in a proper manner. - *Gilbert v Goldstone Ltd* -- Where employees are contractually obligated to do overtime, the requirements of overtime will always be reasonable and not excessive. - *Malik v BCCI SA* -- The employer will not conduct his business in a fraudulent and dishonest manner, so as not to cause damage to the employees' reputation and place them at a disadvantage in the market. - *BCCI SA v Ali (No 3)* -- The claimant must show failure to obtain fresh employment because of the stigma. *Stevenson v Teesside Bridge and Engineering Ltd* -- Implying a term by reference to the practices of the industry and/or national agreements which are in force. *Malik v BCCI SA (in liquidation)* \[1998\] -- an employer must not without reasonable and proper cause do anything t destroy or seriously damage the relationship of mutual confidence and trust between employer and employee. - *Woods v WM Car Services (Peterborough) Ltd* (1981) -- It is not necessary to show that the employer intended any repudiation of the contract. *Casson Beckman & Partners v Papi* -- A term can only be implied into a contract if it would have existed at the time the contract was made, therefore it is not possible to imply a term where the situation has changed. Sources of terms: - Collective bargains - Custom - Work rules, company handbooks, policy statements Implied duties of the employer: - To pay wages - To provide work -- *Collier v Sunday Referee Publishing Co Ltd* - To exercise care - To treat the employee with respect The Working Time Regulations 1998: - 48 hour working week -- can be opted out of - 5.6 weeks of paid annual leave - Bank holidays given as part of the 5.6 weeks - Right to breaks: - Daily rest breaks -- 11 hours every 24 hours - Weekly rest breaks -- 24 hours per 7 days - In work rest breaks -- 20 minutes when working for longer than 6 hours. Unit 3 ====== Two types of dismissal at common law: actual dismissal and constructive dismissal. *East Sussex County Council v Walker* \[1972\] -- invitation to resign is an actual dismissal. Wrongful dismissal occurs when there has been a breach of contract. Most common situations: - Inadequate notice - Contractual termination procedures - Temporary and fixed-term contracts Constructive dismissal -- breach of contract by the employer making the employee resign. *Western Excavating Ltd v Sharp* \[1978\] -- Three conditions must be satisfied to prove constructive dismissal: 1. Employer must be in actual or anticipatory repudiatory breach. 2. Employee must resign shortly after breach. a. If the employee waits too long it will be seen as affirming the breach. Employees can continue to work 'in protest' a the period of time of a formal grievance being dealt with, but continuous employment following that is affirmation -- *WE Cox Turner (International) Ltd v Crook* (1981). 3. Employee must resign because of breach. Last straw doctrine: Cumulative effects of minor breaches can amount to a fundamental breach of the implied duty of mutual trust and confidence -- *Lewis v Motorworld Garages* (1985). *Courtaulds Northern Textiles v Andrew* (1979) -- Employment contracts have an implied term stating that employers would not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties. *Morrow v Safeway Stores plc* \[2002\] -- breach of implied term of mutual trust and confidence is always a repudiatory breach. Remedies: - A right to claim damages for wages lost: - During proper notice period. - During remainder of fixed term contract. - During period which the court judges to be necessary to have completed a proper contractual disciplinary procedure. - Damages are commonly reduced when: - Claimant found a new job. - Claimant's failure to mitigate losses by not looking for another job. - Some payment has been received. - Statutory payments have been received. Injunctions are granted rarely but are given when it would leave in place a 'workable' situation. - To get an injunction, an employee must refuse the employers breach -- 'in dismissing me you are breaching my contract of employment, I do not accept your breach.'