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Employment law
| Question | Answer |
|---|---|
| types of worker | employee/self employed - contractor |
| employee definition | no exact definition in statute |
| employee | contract of service |
| self employed/contactor | contracts for service |
| how is employee determined | tests by the courts |
| contracts of service essential elements | -personal service -control -mutuality of obligations -cannot be contract of service without |
| personal performance | contracts of service - complete work themselves cannot delegate |
| mutuality of obligations | contracts of service - ongoing - employer providing work worker performs work for a wage or is it one off |
| degree of control | contract of service - employer can tell employee how to do work and when to do it - consider uniform logos - providing tools and equipment |
| other tests to consider | gross pay or tax deducted who has financial risk/responsibility how many people do they work for can they use support staff from employer length of service |
| Reasons for distinction - wrongful dismissal | employee - can claim self employed - cant claim |
| employment protection - employee | -min notice period -statutory redundancy -unfair dismissal remedies -health and safety protection |
| self employed | increasingly offered may have to register and change VAT |
| Insolvency | employee has preferential rights as a creditor |
| implied terms | employee - rights + duties implied by common law and statute self employed - rights and duties don't apply |
| tortious acts | Employees - VL Self - limited unless strict liability |
| Tax/NIC/social security | employee - deductions by employer under PAYE (schedule E} NIC class 1 primary and secondary contributions: ssp self - responsibility to pay to HMRC (schedule D) - NIC class 2 and 4 |
| Employment contract | normal contract - written requirements such as name, hours of work ..... |
| Employees implied duties (CL) | reasonable care and skill, not misuse confidential info, obey lawful and reasonable orders, personal service |
| Employers implied duties (CL) | provide work, health and safety, reasonable remuneration, provide accurate reference, don't disclose confidential info |
| Employers duties (statute) | work life balance - pay, health and safety, equality |
| Employers duties (employment rights act 1996) | Ante-natal care, paternity leave + pay, NI .... |
| Equality act 2010 | protected characteristics - age, sex, race, religion .... |
| Notice provisions employment rights act - ≥ 1 month but < 2 years | not less than one week |
| ≥ 2 years but < 12 years | Not less than 1 week per year of continuous employment |
| ≥ 12 years | Not less than 12 weeks |
| Unfair dismissal | ERA 1996 amended by Employment act 2008 - must've been continuously employed for two years |
| reason for dismissal automatically unfair | no continuous employment needed |
| time to claim to employment tribunal | 3 months - from date of termination |
| ways dismissal may occur | non renewal of contract termination - with or without notice constructive dismissal |
| constructive dismissal - employee must show | employer committed serious breach of contract they left because of breach they have not waived breach affirming the contract |
| Auto unfair reasons | pregnancy, spent conviction rehabilitation of offenders act 1974, trade union membership, taking steps to protect themselves where believe serious danger, seeking to enforce rights, making protected disclosure. |
| Potentially fair reasons | capability, misconduct, redundancy, statutory restriction, other sustainable reason |
| tribunal | decides whether employer acted reasonably - employer must show was potentially fair |
| remedies unfair dismissal | reinstatement, re-engagement, compensation |
| 3 compensation categories | basic, compensatory, additional reward |
| wrongful dismissal | dismissed in breach of contract of employment remedies - damages |
| redundancy | • Employer has ceased, or intends to cease, to carry on business for the purposes for which the employee has been employed; • Employer has ceased, or intends to cease, to carry on business in the place where the employee was employed; |
| claim redundancy payment | have to be - employee-employed at least two years, follow procedure - within 6 months |
Created by:
TDuck