Employment law

Employee

A person employed under a contract of employment, also known as a contract of service.

• employees receive sick pay, holiday pay and the right to claim for unfair dismissal

• In return they work for a salary or wage

Independent Contractor

A self-employed person who makes a contract to provide a service but does not do so as an employee.

Can be a partnership or company

Why is it important to know if a Contract of Employment exist

A legal agreement between an employer and an employee.

1) an employer must deduct income taxes from salaries and wages

2) if the business becomes insolvent, employees have certain preferential rights over other creditors for unpaid salries or wages

3) an employment contract has express and implied duties. Implied redundancy pay.

4) employers can be vicariously liable for the actions of their employees

Employees have entitlements in the form of statutory protection

Distinguishing test

Created by the courts to distinguish employees and independent contractors

Mutuality of Obligations Test

A test to determine if there's a mutual obligation between employer to provide work and employee to accept and perform it. Or are employes free to accept other work

Control Test

A test that examines the level of control an employer has over a worker's tasks, including what to do, how to do it, and when to do it.

An independent contractor gets paid for a completed task, but personally decides how to do it. §

Integration Test

A test that assesses how integrated a worker is into the business, such as inclusion in occupational benefit schemes.

Economic Reality Test

A test that assesses a worker's economic situation to determine if they operate as a business on their own account.

Termination of the contract of employment

Either side can terminate the contract of employment by notice

A contract for a fixed period ends once the period ends, however it is usual for contracts to continue indefinitely.

Length of notice

normal an express term determines the length of notice

If there is no express term written, then the notice cannot be less than the statutory minimum

One month of employment - 2 years= one week notice

Thereafter minimum of one week for each year worked

For an employer they are entitled to a one week notice from the employee after one month of employment. It stays at one week

Individual contractor notice

either party can give up the right to notice

Same length minimum as employers, can have implied or express terms that make it longer, but never shorter

Constructive dismissal

An employer repudiates an essential term of the contract and the employee resigns.

The employer commits a serious breach of conduct (reduces pay)

The employee leaves because of the breach

The employee ahs not waived the breach and affirmed the contract

Wrongful dismissal

Arises from a breach of contract

• Employer fails to giver the required notice period ,employees can claim damages

• Employee fails to give notice period, employer can claim damages

unfair Dismissal

Employer has to show

1. the dismissal was for a potentially fair reason under the Employment rights act

2. The employer acted reasonably in dismissing the employee for the reason given

   If not the dismissal is unfair

3. If the employer did not follow a fair procedure it can be seen as unfair dismissal

Fair reasons for dismissal

capability

Conduct

Redundancy

Statutory illegality

Redundancy

is the termination of employment when the need for a job is no longer needed.

Compensation can be claimed only by employees ages 20 and over and have been working for 2 or more years

Three factors

1. Closing of the business where employees was employed

2. Closing of business at the place where the employee was employed

3. A stopping or reduction of work of the particular kind that the employee does

Remedies for unfair dismissal

1. Reinstatement - an order that the employee returns to his old job with no financial loss

2. Re-engagement - an order that the employee is given new employment on terms comparable to that which he was dismissed from

3. Compensation - a monetary award to the employee