Employment Law and Discrimination

Who has employee status and can get cases heard in the tribunal?

(1) Workers, and (2) Employees BUT NOT Independent contractors

Workers are “employees” and are defined as…

individual who has entered into work under a contract of employment and the individual who performs the work is for a party whose status is not by virtue of a contact or company - they have some rights but not all including (1) holiday pay, (2) whistleblowing,(2) minimum wage, and (4) discrimination

Employees are recognized as “employees” and are defined as…

individuals who are under a contract of employment or services either orally or in writing with the important distinction of (1) unfair dismissal, (2) materiality and parental leave, (3) sick pay, etc.

Independent contractors are not recognized as “employees” because they are…

technically self-employed persons who are contracted to provide services for an organization; examples include commerical contractors

Common Law tests for Employee Status

(1) Control Test, (2) integration test, and (3) mutuality of obligation

Control Test

part of the common law test for employee status focused on whether you are subjected to the rules of an employer

Integration test

part of the common law test for employee status focused on whether you are an important part of the organization and how it functions

Mutuality of obligation

part of the common law test for employee status focused on whether employers must provide work and their employees also agree to do the work

Employment tribunal (ET)

the “first instance”court for most employment-specfic statutory claims and smaller contract claims

Employment appeal tribunal (EAT)

a specialized appellate court that hears appeals from the ET strictly on points of law

Strategic Jurisdictional Differences

A critical distinction is the jurisdiction over wrongful dismissal (breach of contract) claims. Hwne the employment tribunal is the standard venue for many disputes, its power to award damages for wrongful dismissal is capped at 25,000 pounts while higher courts have unlimited jurisdiction

Employement Rights Act 1996

Law that defined an employee as an individual who has entered into or works under a contract of employment

Ready Mixed Concrete v. minister of Pensions & National Insurance (1968)

case around whether a man was an individual contractor or an employee which was owed a pension which set out three principle to determine someone’s employment status which are (1) did they agree to provide work in return for a wage, (2) did they agree to be subjected to some degree of control, and (3) are the other provision of a contact in alignment with a contract of service

Substitution clauses

clauses that mean that someone is not an employee as they specifically do not need to do the work

Market Investigations v. Minister of Social Security

Estabilishes the Economic Reality Test which aks if the individual provides their own equipment, hire their own helpers, or take financial risks —> IF the can profit then they are a contractor

Autoclenz v. Belcher (2011)

case where a company argued that car valets were independent contractors and that they could send substitutes but in reality they were not allowed to do so; Due to the reality of the situation, court found that they were employees

Sham

term to describe when a contract is not entirely true

Uber BV v. Aslam (2021)

case where uber drivers argued that they were workers not independent contractors and needed some protections; court ruled that they were workers because they were

Statement of particulars

a list of evidence of agreements between parties typically including the names of the parties, date when employment begins, pay, etc.

What are the implied terms

(1) Mimimum Wage and (2) Working Holiday

Employee implied terms

(1) Duty to follow reasonable instructions, (2) duty exercise reasonable skill and care, (3) duty of trust and confidence, and (4) duty to not work in competition with employer or “fidelity"

Duty of Fidelity

the employee’s responsibility to act in the employer’s; Employees must not work in competition with employer during the course of their employment

Employer implied terms

(1) Duty to pay reasonable compensation, (2) Provide Work, (3) Take reasonable care for safety, (4) Protect employee’s privacy, and (5) duty trust and confidence

Duty of mutual trust and confidence

implied term for both employer and employees that suggests that each must conduct themselves in a manner that will not destroy the relationship between the two or cause unnecessary harm mentally, emotionally, or physically

If the duty of mutual trust and confidence is breached on the behalf of the employer then….

Employees can resign and claim that they’ve been dismissed meaning that they have a right to claim unemployment benefits

Duty of Care

the responsibility of employers to ensure the safety of their workers

Restraint of Trade Clause

a type of express term that restricts the future freedom to compete with an ex-employer; prima facie void but will be valid if the employer can show that it is reasonable

Restraint of Trade Clauses are seen as reasonable when…

(1) trade secrets are involved, (2) the duration of time makes sense, and (3) the geographical location makes sense

Greer v. Sketchley (1979)

case around restraint of trade secrets where a business attempted to tell the employee that they could not work anywhere in the UK for the next 12 months after their contract terminated - ruled that the duration and location was too broad and wide cast

Blue pencil test

idea that courts will/can take out parts of restraint of trade clauses that are unreasonable and keep parts that make sense; only works when part of the request is still left after penciling other elements out - RELATED TO Egon v. Tillman

Ways that a contract can be terminated

(1) Resignation, (2) mutual agreement, (3) frustration, (4) dismissal

Dismissal can happen three different ways….

(1) employer ends contract with or without notice, (2) fixed term contract ends, or (3) when employee terminates by reason of employer conduct

Wrongful Dismissal

contractual dismissal problem which is most common when insufficient notice is given by the employer; damages can be awarded here but ONLY for those with contractors so employees and workers

Summary Dismissal

occurs when there is gross misconduct or when the situation is so bad that you are able to dismiss without notice and it is not classified as wrongful; examples include theft, harassment, etc.

Unfair Dismissal

Here the employer has the burden of proof; becomes an automatic right after 2 years but one doesn’t necessarily need to have the 2 years if they reason falls in the unfair dismissal category (1) health and safety, (2) pregnancy or paternity leave, (3) whistleblowing, (4) taking part in industrial action or (5) request for the national mimimum wage — ONLY possible for employees

Fair reasons for unfair dismissal include…

(1) capability, (2) conduct, (3) redundancy, (4) statutory reason, nd (5) SOSR or some other substantial reason

Procedural Fairness

Idea that even with fair dismissal reasons, employers must act with the “range of reaonable responses” and follow the ACAS Code of practice as the triabunal evaluates whether the employer acted reasonably

Redundancy

occurs when the main reason for dismissal is because the employer ceases to intend to carry on business and the need for employees to carry out certain work have diminished; is fair as long as they use the right process and can prove why it is fair

Three parts of a Fair Redundancy Process include…

(1) reaonableness, (2) Fair procedure and ACAS Compliance, and (3) Consistency — doesn’t use discriminatory practices

Taylor v. Aildair (1978)

BHS v. Burchill (1970)

Polkey v. Dayton (1987)

Equality Act of 2010

nine protected characteristics are (1) age, (2) disability, (3) gender reassignment, (4) religion or beliefs, (5) marriage and civil partnership, (6) race, (7) pregnancy and maternity, (8) sex, and (9) sexual orientation

The Equality Act of 2010 set out prohibited conduct for…

(1) direct discrimination, (2) indirect discrimination, (3) harassment, and (4) victimization, (5) pregnancy, and (6) disability

Direct discrimination

when someone is treated less favorable based on a specific characteristic; here motive is irrelevant even if the employer has the same characteristic

James v. Eastleigh Borough (1990)

Establishes that motive is irrelevant in discrimination cases so even well-intentioned actions like refusing to hire a woman for a “dirty job” can consitute discrimination

Only Defence for direct discrimination is when…

there is a genuine occupational requirement

Indirect discrimination

occurs when some sort of provision, criteria, or rules affect one protected group more than others; can be done without intention as it makes it difficult for certain groups to comply

Objective Justification

The concept that employers can defend indirect discrimination and direct age discrimination if they can prove that the conduct was a proportionte means of achieving a legitimate aim

Mandla v. Dowell Lee

Case about race where a school uniform requirement was struck down because it indirectly discriminated against a child who wore a turban and that fell under the protected race class

Chief Constable of West Yorkshire Police v. Homer

Case about age discrimination where they found that the requirement of a law degree for promotion was indirectly discriminate because the candidate could not finish the degree before their mandatory retirement age

Sex discrimination

applies to both men and women

Women Scotland Ltd v. Scottish Ministers

ruled that biological sex, not gender identity is what is important for sex discrimination

MoD v. Jeremiah -

giving women different work than men is discrimination

Gill v. El Vino Co

refusing to serve women at the bar is unlawful

Marshall v Southampton & sw hants

idea that setting different retirement ages for women and men is discriminatory

Age Discrimination

discrimination that applies to people of a (1) certain age or (2) certain age group; Introduced later and is less protected than others because arguments can be made to justify the reasoning

O’Reilly v. BBC (2010)

Case about age discrimination where the court held that replacing older presenters with younger ones to appeal to a different demographic was direct discrimination

Disability Discrimination

allows people to be treated more favorably due to a long-term physical or mental impairment that may limit their ability to carry out normal day to day functions; must have 4 qualities listed above (1) long term, (2) sustantial adverse effect, (3) effects day to day activities, and (4) clear existance of an impairment

Goodwin v. The Patent Office (1999)

case about disability discrimination which established the four element test for disability employment cases — (1) long term, (2) sustantial adverse effect, (3) effects day to day activities, and (4) clear existance of an impairment

Attridge v. Coleman

Case that established allowances for certain favorable benefits for those who are caregivers for disabled individuals

Gender Reassignment

protects those who have undergone, plan to, are are undergoing sex changing processes by changing physicological or other attributes

A v. Chief Constable of West Yorkshire Police

START HERE!!

Marriage and Civil Partnership

a person is still protected even if they are married or in a civil partnership; Does NOT include protection for single parents or single persons

Hawkins v. Alex Group

establishes that the discrimination must be due to the fact that they are married rather than The Who/relationship itself

Race discrimination

color, nationality, ethnic origin or national origin

Mandela v. Do well Lee - case about Sikh man who

Chandhok v. Tirkey

held that ethnic origin could be wide enough to include caste

Positive discrimination is…. While positive action is….

Religion

prohibits discrimination on the basis of any religion or lack of religion as well as any philosophical belief

eweida and ors v. United Kingdom

ruled that a manifestation has to be intimately connected to the relevant religion but is not necessarily a stipulation of that religion

Granger and Nicholson

created a test for belief discrimination that (1) it must be genuine, (2) must be worthy of respect in society, and (3) not incompatible with the fundamental rights of others

Sexual Orientation - included all different orientations

Thomas Sanderson Blinds v. English

establishes that homophobic abuse can occur regardless of sexuality

NH v. Associations Avvocature per I diritti

establishes that hypothetical can be used as discrimination in sex cases

Pregnancy Discrimination

equality act stops people from being discriminated against and being treated unfavorable due to their

Webb v. EMO

held that discrimination on the grounds of pregnancy is sex discrimination in breach of EU law because it pertains to the fact that she was a women

When looking at discrimination cases, the burden of proof is on the claimant or the person that makes the claim, then it switches to the defendant

Harassment

violation of a worker’s dignity by creating an intimidating, hostile, or degrading work environment that is related to a protected characteristic

Sexual harassment - unwanted conduct of a sexual nature

Munchkins Restaurant v. Karmazyn

Victimization

occurs when a person is subjected to a detriment because he or she has brought proceedings or given evidence in proceeding under the act; HAS to be preceded by a violation of one of the other protected characteristics against yourself or against you based on your support in bringing action against a violation

nagarajan v. London Regional

Smith v. Ideal shopping

Equal Pay

sex equality clause that allows each sex to claim equal pay based on whether they do (1) like work, (2) work rated equivalent and (3) work of equal value; these must be brought within 6 months and if they are successful then the employer must pay back equal wages for 6 years

Equal pay laws apply to…

all workers not just employees

Asda v. Brierley -

Genuine material factor Defense

objective justification by which employers can defend different treatment if they can prove that sex has nothing to do with the gap in pay

once you have incorporated a company, it has corporate personality or legal personhood which is why only the company can sue, not the shareholders

Public Limited Company