Understand the basic principles of Employment Law and be able to provide advice in respect of any of the following:
- tests of employment, control, integration/organisation, multiple factors and economic reality, mutuality of obligations, personal service
- implications of the distinction between being an employee and being self-employed: pay, tax, National Insurance, redundancy, dismissal rights, health and safety protection, liability of ‘employer’ etc.
- 3.1.4 Workers:
- types of worker – casual, agency, freelancer, zero- hours, seasonal, apprentices, (religious) ministers, the gig economy cases and determining factors (contracts, casual nature, work is less structured, irregular, provide service personally, no guaranteed work/hours, low obligation of availability)
- implications of worker status – minimum wage, holiday pay, protection from discrimination, unfair treatment if part-time, breaks and working time limits, unlawful deductions, possible statutory sick pay and maternity pay (but not leave).
- 3.1.5 Contracts of employment:
- types of contracts (indefinite and fixed term, full-time and part-time, non-standard (e.g. zero hours), oral and written), commencement, express and implied terms.
- 3.1.6 Contractual terms:
- express terms include things like dates, duration, parties, pay, hours, terms and conditions, rights, notice period, duties, legal responsibilities of the employer and the employee, holiday and sick pay, training, grievance and discipline procedures etc
- Importance of minimum terms – a written statement confirming key terms – s.1 ERA 1996 (as amended by the Employment Act 2002)
- terms implied by statute – working time – Working Time Regulations 1998; minimum wage – National Minimum Wage Act 1998; notice periods – s.86 ERA 1996; equality
- types of discrimination – direct and indirect
- burden of proof
- positive actions
- employer responsibilities and solutions/remedies.
- 3.1.7 Knowledge of discrimination in employment:
- protected characteristics – s.4 EA 2010:
– age (s.5 EA 2010)
– disability (s.6 EA 2010)
– gender reassignment (s.7 EA 2010)
– marriage and civil partnership (s.8 EA 2010)
– religion and beliefs (s.10 EA 2010)
– sex (s.11 EA 2010)
– race (s.9 EA 2010)
– pregnancy and maternity (s.18 EA 2010)
– sexual orientation (s.12 EA 2010)
- 3.1.8 Termination and dismissal:
- the ways in which a contract of employment can be terminated:
- mutual agreement
- by notice or expiry of fixed term
- constructive dismissal
- summary dismissal
- how to make a complaint against dismissal.
unfair dismissal including:
- eligibility for claim (service and timings)
- fair reasons – capability, conduct, redundancy, legal/illegal dismissal
- automatically unfair and fair reasons
- employer responsibility – procedural fairness and act reasonably
- how to make a claim
- potential awards/remedies.
wrongful dismissal including:
- dismissal without notice (s.86 ERA 1996)
- no grounds for repudiation
- courts with jurisdiction and how to make a claim
- employer responsibilities and solutions.
- 3.1.9 Fair procedures including role of Advisory, Conciliation and Arbitration Service (ACAS):
- difference between advice, conciliation and arbitration
- services provided by ACAS to both employers and employees
- preliminary hearing and final hearing.
- 3.1.10 Employment Tribunals:
- the process of taking a case to an employment tribunal
- preliminary hearing and final hearing
- Tribunal remedies depend on the action but can include:
– damages in tort and breach of contract actions as well as possible injunctions and equitable remedies where appropriate
– tribunals award compensation, make recommendations or make declarations as to the rights of the parties
- tribunal compensation can cover obvious losses such as loss of earnings as well as compensate for things like personal injury and injury to feelings
- some tribunal outcomes can lead to a redundancy payment, reinstatement, payment of holiday pay or an obligation on the employer to introduce training policies or new procedures
- exemplary damages can be awarded in some discrimination cases and tribunals can order employers to pay financial penalties where they fail to comply with an award ordered by the tribunal
- tribunal awards and limitations on other civil actions, such as, negligence and personal injury claims.
- 3.1.11 Potential criminal liability:
- in some situations, employers can face criminal prosecutions and penalties. Such as, serious health and safety breaches and in extreme cases, corporate manslaughter.
E1, E2, E4, E4
D1, D3, D5