BPTC Law Notes Employment Law Notes
A guide to some of the key issues in employment law and a general script that can be followed for oral exams for how to discuss these topics.
Also provides some of the guides on how to do calculations (eg. basic award).
**Now up to date for 2015!**...
The following is a more accessible plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Employment Law: LGS Notes
1.
Sources and definitions
Sources
Contract Law (or tort, e.g. vicarious liability)
Same as contract law – offer, acceptance, consideration, etc.
Does not have to be written – verbal contracts are valid but harder to prove
Domestic Legislation
Implies terms into contract or overrides terms in contract
Why?
Balance of power relationship – to balance the power held by employer
EC Legislation and Case Law
EC Legislation
ECJ Judgments
Fundamental principles in EC Treaties
Definitions
Type of worker:
Employee:
Individual under contract of employment
Self-employed:
Under a contract for services
Worker:
Can include employees but also others who personally perform work/provide services but not SE because not carrying on business in own right
Tests:
Hall v Lorimer
Look at the overall picture even where certain factors missing
Mutual obligations
both employee and employer are under obligations to one another
Control
Does the employer control/have authority over the employee in the performance of the work. Employee does not control who does the work (i.e. send someone to fill in)
Integration
Integrated into employer’s organisation
Cases:
Dacas v Brook St Bureau Ltd. [2004]
C worked as cleaner at Council offices for 5 years as an agency worker. Was rude to member of staff and fired. C took action against agency and council.
Held: not employee but it is possible for an agency worker to be an employee.
Dramatic effect because employers will have liability for agency workers.
James v Greenwich Council [2008]
Upheld Dacas but whether there is liability will depend on the facts of each case.
Advantages of being an employee:
Unfair dismissal protection
Redundancy payment
Maternity rights
Protection from discrimination
Written particulars of employment
Express/Implied Terms and Post Termination Restraints
Express Terms
S.1 Employment Rights Act 1996
At beginning of employment, employer must give written statement of particulars of employment within 2 months
Can bring claim asserting failure but failure does not give rise to claim on its own
Written particulars which statement must contain:
Names
Dates
Continuous employment periods
Pay
How calculated
Hours
S.2(4) ERA – some items must be in ONE document:
Names
Date of commencement
Date of continuous service
Rate and frequency of pay
Hours of work
Holiday entitlement
Job title
Place of work
If no formal contract or written particulars, can gather other evidence to demonstrate contract
E.g. offer letter, handbook and policies, job advert
Other terms may appear
Garden leave
Suspension without pay
Mobility clauses
I.e. may be required to work somewhere else.
Variation
Right to search
Restriction of email/internet
Implied Terms
Implication by:
Statute
Custom/past conduct
Officious bystander test
Business efficacy
Duties upon employer as implied conditions
To pay
To provide work
Arguably no longer exists as long as payment is given. Depends on facts of case, e.g. actor is dependent on publicity from work despite pay
Health and safety
Reasonable care for employee. Common law, statutory and tortious duties
References
Duty to take reasonable care if reference given (no duty to provide one)
General duty of care
Difficult to run
Mutual duties upon employer and employee
Trust and confidence
Physical/verbal abuse
Harassment
Deception
False accusations
Duties upon employee
To provide personal service
Reasonable skill, diligence and care
Good faith and confidence
Duty to obey lawful orders (if reasonable)
Post termination restraints
Confidential information
Duty can extend beyond contract but is more narrow. Must be:
Trade secret; OR
So highly confidential as to amount to a trade secret
Trade secret
Faccenda Chicken v Fowler [1996]
Look at circumstances to decide what trade secret is.
Nature of employment
Nature of information
Whether employer impressed upon employee the confidentiality
Whether information could be isolated from other information which can be disclosed
Restrictive covenants
To prevent someone from doing something once relationship broken down
Court does not like control of behaviour after contract. Some allowed.
Prima facie VOID and UNENFORCABLE, UNLESS:
No further than necessary
Protect legitimate interests of business
Reasonable
Types:
Non-competition
Non-dealing
Non-solicitation/poaching of customers or employees
Blue pencil test
If term too wide but can easily be amended, court will do so
Will not redraft a clause
Reasonableness factors:
Duration of restriction
Geography
Needs/interests of business
Duties of the employer
Whether a lesser restriction would suffice
The impact of wrongful dismissal on restrictive covenants
If dismissed in breach of contract or constructive dismissal, restrictive covenant is unenforceable
Remedies
Damages
Injunctive relief
Termination and Wrongful Dismissal
Termination
Not every contract termination = dismissal
Ways of ending:
Mutual agreement – not dismissal
Where financial inducements, far more likely that mutual agreement because leaving is of benefit to employee.
Fixed term contracts - dismissal
S.95(1)(b) ERA
Expiry of fixed term contract without renewal = statutory dismissal
Can be expiry of time, completion of task or occurrence of a particular event
Fixed-Term Employees (Prevention of Less Favourable Treatment Regulations) 2002
Extra protection for fixed term employees:
Right to be treated as favourably as permanent employee
Protection against UD
Right to information about permanent vacancies
One week statutory minimum notice for contracts of 3 months or less
Series of fixed term contracts
Employees under a series of FT contracts for 4 years + will become permanent employees unless continuing as FT can be objectively justified
Frustration – not dismissal
Where:
...Buy the full version of these notes or essay plans and more in our Employment Law Notes.
A guide to some of the key issues in employment law and a general script that can be followed for oral exams for how to discuss these topics.
Also provides some of the guides on how to do calculations (eg. basic award).
**Now up to date for 2015!**...
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