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Employment Law Notes

BPTC Law Notes > Employment Law Notes

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Employment Law: LGS Notes

1. Sources and definitions Sources

1. 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

2. Domestic LegislationImplies terms into contract or overrides terms in contract o Why?
? Balance of power relationship - to balance the power held by employer

3. EC Legislation and Case Law?EC Legislation ECJ Judgments Fundamental principles in EC Treaties

Definitions?Type of worker: o Employee:
? Individual under contract of employment o Self-employed:
? Under a contract for services o 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: o Hall v LorimerLook at the overall picture even where certain factors missing o Mutual obligations
? both employee and employer are under obligations to one another o 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) o Integration
? Integrated into employer's organisation Cases: o 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. o 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: o Unfair dismissal protection o Redundancy payment o Maternity rights o Protection from discrimination o Written particulars of employment?

Express/Implied Terms and Post Termination Restraints

1. Express Terms?S.1 Employment Rights Act 1996 o At beginning of employment, employer must give written statement of particulars of employment within 2 months o Can bring claim asserting failure but failure does not give rise to claim on its own o Written particulars which statement must contain:
? Names
? Dates
? Continuous employment periods
? Pay
? How calculated
? Hours o 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 o E.g. offer letter, handbook and policies, job advert Other terms may appear o Garden leave o Suspension without pay o Mobility clauses
? I.e. may be required to work somewhere else. o Variation o Right to search o Restriction of email/internet

2. Implied TermsImplication by: o Statute o Custom/past conduct o Officious bystander test


o Business efficacy Duties upon employer as implied conditions o To pay o 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 o Health and safety
? Reasonable care for employee. Common law, statutory and tortious duties o References
? Duty to take reasonable care if reference given (no duty to provide one) o General duty of care
? Difficult to run Mutual duties upon employer and employee o Trust and confidence
? Physical/verbal abuse
? Harassment
? Deception
? False accusations Duties upon employee o To provide personal service o Reasonable skill, diligence and care o Good faith and confidence o Duty to obey lawful orders (if reasonable)

3. Post termination restraints?

Confidential information o 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 o 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

4. 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: o No further than necessary o Protect legitimate interests of business o Reasonable Types: o Non-competition o Non-dealing o Non-solicitation/poaching of customers or employees Blue pencil test


o If term too wide but can easily be amended, court will do so o Will not redraft a clause Reasonableness factors: o Duration of restriction o Geography o Needs/interests of business o Duties of the employer o Whether a lesser restriction would suffice The impact of wrongful dismissal on restrictive covenants o If dismissed in breach of contract or constructive dismissal, restrictive covenant is unenforceable Remedies o Damages o Injunctive relief

Termination and Wrongful Dismissal

1. Termination?

Not every contract termination = dismissal Ways of ending: o Mutual agreement - not dismissal
? Where financial inducements, far more likely that mutual agreement because leaving is of benefit to employee. o 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: o Right to be treated as favourably as permanent employee o Protection against UD o Right to information about permanent vacancies o 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 o Frustration - not dismissal
? Where:
? Contract is impossible; OR
? Circumstances of performance would render performance radically different from what was originally intended, e.g. imprisonment o Dismissal by employer
? Contractual and statutory notice
? Either give contractual notice; OR
? SMN (statutory minimum notice) - if contract silent or is less than SMN o 1 month but less than 2 years - 1 week

2 years but less than 12 years - 1 week for each complete year o More than 12 years - capped at 12 weeks
? PILON (payment in lieu of notice)
? Can be express clause = PILON is allowed
? IF not express and employee does not consent = breach of contract
? Tax: o If PILON paid from contractual right (i.e. express) =
payment and is taxable o If no PILON clause = not contractual and considered damages, therefore untaxable up to PS30,000 Summary dismissal
? Payment without notice or PILON because of serious breach of contract (repudiatory breach)
? E.g. wilful disobedience, theft, drunkenness, bullying, etc.
? Employer can rely on further misconduct discovered after dismissal in claim for wrongful dismissal but NOT unfair dismissal Constructive dismissal
? S.95(1)(c) ERA - deemed dismissal
? Behaviour of employer has been so bad to cause contract to end. I.e. I am leaving because your behaviour has dismissed me
? Must be:
? Serious breach
? Entitling employee to treat contract as ended
? BoP on employee that there was serious breach AND resignation was as a result
? Can give rise to claim for damages - contractual basis, and/or statutory damages for unfair dismissal Resignation - not a dismissal o




2. Wrongful Dismissal??

If employer: o Breached terms or o Failed to give notice
? = breach and wrongful dismissal Will need to pay compensation to put employee in position as if no breach (contractual basis) o i.e. notice period and/or damages Wrongful dismissal: o Common law o Breach of contract o Dismissal without justification o Contrary to express or implied terms of contract Damages for loss of reputation o Could theoretically be included o Includes duty to mitigate

2 and 3 Unfair Dismissal Eligibility?

Individual must: o Be an employee (not SE or a worker) o Have the relevant continuous employment - i.e., when employment began
? Before 6th April 2012 - 1 year
? After 6th April 2012 - 2 years o Commence the claim within 3 calendar months of dismissal
? 3 months of EDT ("effective date of termination")
? Date of dismissal...jump back 1 day and add 3 months
? Date of dismissal, not date of appeal unless contract provides for continuing service until determination of appeal o Not be an excluded category
? E.g. police, armed forces EDT o Can be:
? When notice expires (if given)
? Date of dismissal if not notice
? Date of PILON payment
? Expiry of fixed term contract o Possible to extend?
? At tribunal discretion - unusual
? Test:
? Not reasonable and practicable to present within 3 months
? C to prove
? Present claim within such further period as the Tribunal considers reasonable in order for an extension

Dismissal?Express, with or without notice Expiry of fixed term contract Constructive dismissal, e.g.: o Reduction in pay - Industrial Rubber Products v Gillon o Complete change in nature of job - Ford v Milhorn Toleman Ltd.

Fairness - limb 1?

5 acceptable reasons to dismiss IF not one of the reasons, dismissal is unfair

? Qualifications lacking
? Illness prevents work
? Incompetence o Conduct
? Need not be gross misconduct
? Can include conduct outside working hours o Redundancy
? Job or place of work goes o Illegality
? Rare - e.g. driver loses his licence so continuing job is illegal o SOSR (some other substantial reasons)
? E.g. someone taking temp work to cover maternity leave, imprisonment, age of retirement, etc. o Automatically unfair reasons
? Union membership
? Health and Safety related dismissals
? Maternity-related dismissals
? Etc. Written reasons - s.92 ERA o If 1 year employment, entitled to request reasons within 14 days of dismissal o Employer has 14 days to respond o Failure to provide = separate claim for failure
? 2 weeks pay given (no limit)
? 3 month time limit to claim oFairness - limb 2??

s.98(4) o Consider the conduct of the employer o Do not substitute decision o Will be a band of reasonable responses, as long as decision was within, it is fair In addition to limb 1 o Did the employer act reasonably?
? Midland Bank v Madden (2000)
? Band of reasonable responses
? Devis and Sons v Atkins (1977)
? Judge on what the employer knew at the time, rather than what came about in the future
? BHS v Burchell (1980)
? The role of investigation
? If employer: o Had honest belief o Had reasonable grounds for holding belief o Reasonable grounds based on a reasonable investigation
? Will be fair. o Was the decision to dismiss determined with equity and the substantial merits of the case ACAS Code of Practice, Disciplinary Procedures o Employers should have regard to requirements of natural justice
? If something is alleged, you should be told about allegation and evidence. Allowed to respond before decision is made. Other factors: o Seize of employer

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