Employment Law on Legal Practice Course - FULL COURSE NOTES - LLM LPC Distinction Level Notes
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Course
Employment Law
Institution
University Of Central Lancashire
85 pages of notes on all topics relating to Employment Law on LLM LPC.
Notes are colour coded, reference all applicable case law and are set out in an easy to read way. Notes drafted and used by LLM LPC Graduate with Distinction.
Topics covered include:
- Who is protected by Employment Law...
Worker
S.230(3) ERA 1996 –
1. Individual entered into or works under a contract
2. With another party for work or services
3. Individual undertakes to do or perform personally the work or services for the other party
4. Other party must not have the status of a client or customer of any profession or business undertaking carried
on by the individual
S.296(1) Trade Union and Labour Relations Consolidation Act 1992 definition of worker:
Employment rights that apply to workers
Equal pay for equal work
Discrimination on grounds of sex, race and disability (Equality Act 2010)
Limitations on unauthorised deductions from pay
Basic health and safety rights
National minimum wage
Working time rights
Some transfer of undertakings rights
Employment rights of employees with a qualifying period
Statutory maternity pay
(after 6 months)
Right to a permanent Paternity leave (after 6
Contract (after 4 years) months)
Unfair dismissal rights
Shared Parental Leave (prior to 6 April 2012 =
(after 6 months) after 1 year, post 6 April
2012 = 2 years)
Parental leave (after 1
year)
, What is the distinction between an employee and a worker?
Several statutory employment protections apply not solely to employees but to a wider class of ‘worker’
S.230(3) ERA 1996 –
‘an individual who has entered into works under a contract of employment or any other contract whereby the individual
undertakes to do or perform personally any work or services for another party to the contract
Employee
A person employed under a contract of service
S.230(1) Employment Rights Act 1996 –
“an individual who has entered into or works under…a contract of employment”
S.230(2) ERA 1996 – contract of employment:
“contract of service whether expressed or implied”
READY MIXED CONCRETE: paid, agreed to carry out work personally, employer must exercise at least some control
Employment as a contractual relationship
Moved on from common law from being considered as a Master-Servant Relationship to being considered as a
contractual relationship
Considered in some legislation e.g. Equal Pay Act 1970 – incorporation of equality clause into contract employment
(now Equality Act 2010)
Need to distinguish between contract OF service (between employer and employee) from contract FOR services
(between employer and independent contractor)
Employment as a relationship of subordination
- Unequal bargaining power as between employer and individual employee
- Little scope for individual negotiation over terms and conditions
- Has been limited action to redress through the common law - implied terms (national minimum wage, holiday
entitlement, discrimination) and illegal contracts
- Trade unions have sought to redress through collective action – collective bargaining and industrial action
- Legislation has sought to redress some of the elements of inequality
What is the distinction between an employee and an independent contractor/self-employed person?
Who is an employee?
‘an individual who…works under…a contract of employment’ (s.230(1) ERA 1996)
Self-employed, workers and independent contractors are excluded from entitlement
Why is it important to make a distinction?
In order to claim redundancy payment or to pursue a complaint of unfair dismissal, a person must be an
employee
, CONTRACT OF EMPLOYMENT
What is a contract of employment?
- Agreement that sets out employee’s employment conditions, rights, responsibilities and duties
- Section 1 statement can be included in the contract
Types of employment arrangements
1. Full-time contract where period is not defined – ‘continuing’ contract which is terminable by either the employer or
the employee on giving the requisite period of notice
2. Part-time employment
3. Fixed-term contract - provides for employment for a fixed (limited) definite period
4. Contract of apprenticeship
5. Training contract – individual enters 2-year training contract with law firm
6. Causal employment – variety of forms, seasonal workers
7. Task related employment
8. Agency work
9. Piece work
10. ‘Zero Hours’ - casual contracts where hours to be worked are left (deliberately) undefined and unguaranteed
a. Vary hours they work
b. Can only work for them
c. LEGAL CHANGES: zero-hour contracts are not binding and the person may go and work elsewhere
11. Home worker
Influences on Contract of Employment
Law Bodies
- Domestic - Parties – employer and employee
- Statute - Trade Unions
- Common Law - ACAS – set up via the government
- Treaty - Equality and HR Commission
- European Directives – regulations •Government/ EU
- ECJ
- International
Why is the employment contract important?
- Outlines the expectations for both parties, protects both parties if those expectations aren’t met and lock in the price
that will be paid for services
- Legally binding agreement that sets out employee’s employment conditions, rights, responsibilities and duties
Contents of Employment Contract
Express terms Oral or written
- Job advertisement
- Offer Letters
- Job description
- Contract
- Employer’s handbook/ rulebook
, The employer’s rulebook Handbook which contains grievance/ disciplinary procedure, medical checks, no
smoking rules, safety equipment
Implied terms under Statute Terms may be implied by common law or under statute
- Equality Act 2010
- Employment Act
- National Minimum Wage Act 1998
- Working Time Regulations 1998
Implied terms under Common Law - Custom and practice
(38, 39 and 41, 42) - Intention and parties
Collective bargaining Trade unions
Employers’ duties Duty to pay wages and provide work
Duty to indemnity employee
Duty to take reasonable care of employee’s safety and working conditions
Duty to take reasonable care in giving references
Duty to give reasonable notice
Duty of mutual trust and confidence
Duty to notify on termination without notice
Employees’ duties Duty to give personal service
Duty to obey reasonable orders
Duty of reasonable care and indemnity
Duty of fidelity or good faith
The right to a written statement Section 1 Statement ERA 1996 – no less than 8 months employee is entitled to receive
written statement of terms and conditions of employment
Restraint of trade clauses Restrictive covenant restraining an ex-employee from working in a competing business
or soliciting ex-customers is prima facie void as being in restraint of trade
To be enforceable:
Employer must have legitimate business interest to protect such as trade
secrets or other highly confidential information which ‘if disclosed to a
competitor would be liable to cause real or significant damage to owner of
secret’
Implied terms at Common Law: Duties of Employee
- No legal requirement for employer to do work
- Mutual trust and confidence (39) – treat each other with respect, you can sack your employer by mutual trust and
confidence
- Obey lawful and reasonable instructions
- Not compete (ltd) (41) – common law is currently void for restrictions unless they are reasonable drafted (reasonable in
time and space)
- Not disclose confidential information (ltd)
, Express Terms: Clauses to Consider
Commitment Restraint of
Section 1 details Confidentiality Non-solicitation
clause trade
Medical Intellectual
Parental rights Perks Search
examination property
Leave Collective
Sickness Pension Work rules
entitlement agreements
Section 1 Statement ERA 1996
Recent change:
6th April 2020 – entitlement to receive a statement of ‘written particulars’ to include workers as employees and make it a day
one right. Currently employers have up to two months to issue the statement to any employee working for them for more than
a month
Section 1 – the employer must, within no later than 2 months of employment commencing, give the employee a written statement
of terms and conditions relating to the following:
a) identity of the parties;
b) date employment began;
c) date continuous employment began (taking into account any relevant employment with a previous employer);
d) scale or rate of remuneration and intervals of pay;
e) hours of work;
f) any terms relating to:
(i) holidays and holiday pay;
(ii) sickness and sick pay;
(iii) pensions and pension schemes;
g) length of notice required to determine the contract;
h) job title or a brief description of work;
i) in the case of non-permanent employment, the period for which it is expected tocontinue or, if it is for a fixed term, the
date it is to end;
j) place or places of work;
k) particulars of any collective agreements which directly affect the terms and conditionsof employment;
l) where employees are required to work outside the UK for a period of more than onemonth, the period of such work,
currency in which payment is made, benefits providedand terms relating to the return to the UK;
m) details of the disciplinary and dismissal rules and grievance procedures (ERA 1996, s 3)(to avoid the procedures
becoming contractual in nature, the s 1 statement should makeit clear they are not); these can be set out in the body
of the particulars, or reference may
be made to another reasonably accessible document;
n) whether a contracting out certificate is in force (under the Pension Schemes Act 1993).
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