Introduction to Employment Law

RECAP ON PROCEDURAL DIMENSIONS OF CIVIL LAW

Civil Law

•          Regulates rights & obligations of people dealing with each other

•           Focus on protecting and compensating the victim cf not about punishment

•           Civil courts: County Court / High Court

•          Tribunals: Employment – Immigration

•          Burden of proof:  balance of probabilities (‘he who asserts must prove’)

•           Remedies:  damages, injunctions, specific performance

Contract, tort, property, trusts, family, employment

•           Tort – civil wrong, e.g. trespass, defamation, nuisance, negligence, trespass to the person, land and property.

•           Fault based

•          Strict liability & vicarious liability

Jurisdiction

•          Depends on value of claim / legal complexity of case

•          Eg: > £5000  < £5000

•          County Court: Small Claims Track  or Fast Track  or Multi Track

•          Or High Court

Limitation Periods (Limitation Act 1980)

Depends on cause of action claimed

•          Recovery of land        12 years

•          Recovery of rent arrears      6 years

•          Contract                      6 years

•          Personal injury              3 years

•          Defamation              1 year

•          Human Rights                 1 year

•          Most other torts             6 years

•          Enforcement of judgment       6 years

Unfair dismissal              90 days

Introduction to Employment Law

•          Recognise the relevance of employment law to corporate transactions

•           Appreciate the impacts of European Law

•           Distinguish between employees, workers and independent contractors

•           Understand the basis of claims of unfair, wrongful, constructive and summary   dismissal

•          Understand how redundancy claims arise

•          Awareness of TUPE 2006

Impact of European Law

•          EC legislation has a major influence on UK employment law

•           Equal Treatment Directive  è Sex Discrimination Act

•          Equal Pay Directive è Equal Pay Act

è  Equality Act 2010

•          Acquired Rights Directive è TUPE

•          Working Time Directive 1998

Employees, Independent Contractors and Workers

Important: answer will determine who qualifies for certain employment rights and who does not

Unlawful deduction of earnings

Minimum wage

Sick pay – holiday pay

Itemised pay statements

Unfair dismissal

Redundancy

Independent Contractors

set up business on own account and provide services to others under a contract for services

      No employment relationship with those for whom they

      perform services thus no employment rights linked to the relationship

Employees

•          Work regular hours

•          Tasks set by the employer

•          At a set location

•          For a fixed salary

•          Usual employee benefits

•          Employer to account to HMRC for PAYE and NI

Who is an Employee

•          s.230(1) ERA 1996: working under a contract of employment ie contract of service

•          Not helpful: contract for services v contract of service

•          Courts will look at substance of agreement

Common law tests designed to help assist

Control test

Mutuality of obligations test

Integration test

Economic reality / multiple test

Workers

•          All employees are workers

•          Not all workers are employees

•          Temporary

•          Casual

•          Locums

•          Sub-contractors

•          Consultants

Public Interest Disclosure Act 1998

Working Time Regulations 1998

National Minimum Wage Act 1998 (£5.03 - £6.31 Oct 2013)

Wrongful dismissal

•          e/er dismisses the e/ee in breach of the terms of the employment contract eg. failing to give e/ee proper notice or other breach of contract

•          Court / Tribunal only concerned with whether correct contractual requirements have been complied with

•          Amount of notice required? 

•          Exceptions: serious breach of contract on part of e/ee

    è summary dismissal

Wrongful dismissal

Where would a claim for WD be heard?

è depends on value of claim and damages sought

ET limit of £25000

Limitation

3 months (ET) or 6 Years court

E/ee under duty to mitigate losses

‘PILON’

Unfair Dismissal

•          Available to e/ees only

•          E/ee has a right not to be unfairly dismissed

•          E/ee dismissed – nb: constructive dismissal

•          Qualifying period 1 or 2 years (April 6 2012)

     (Nb exceptions to qualifying period)

•          Did e/ee have a fair reason for the dismissal?

•          Capability

•          Conduct

•          Redundancy

•          Statutory illegality

•          Some other substantial reason

•          Onus lies with the e/er to show dismissal fair

Was the dismissal fair in all circumstances?

Procedures must also be fair

è e/ers often caught out on this point

SEE: ACAS Code of Practice

è Increase any compensatory award by up to 25%

è (not good for the e/er’s bottom line)

è Establish facts of case

è Inform e/ee of problem

è Hold meeting

è Allow e/ee to be accompanied

è Decide on appropriate action

è Provide opportunity to appeal

Consistency – Equitability – Warning procedures -  Offers of training/ retraining – Fair hearings  - Appeals procedures

Remedies

Re-instatement (less than 2%)

Re-engagement (less than 2%)

Compensation (most common element)

Basic award:  è £13500

Compensatory award:  è £74200

Redundancy

Business shut down altogether

Place of business shuts down

Reduction in need for employees (most common)

2 years qualifying period è Statutory redundancy payment

Correct payment + Correct procedure  è No claim against e/er

•          E/er’s reason for redundancy

•          Consultation

•          Selection process:  e/er must use objective criteria and e/ees assessed in accordance with those criteria

•          Offer of suitable alternative employment ef vacancies in other departments

•          Did e/er allow e/ees to appeal the selection for redundancy decision

Other responsibilities of employer

Implied Terms of Employment Contract

Duty to pay wages / other remuneration

Duty of mutual trust and confidence: no humiliation

Duty to provide a grievance procedure

Duty to provide a reference – general principle no duty

Duty to respect employee’s privacy?

Duty of care

Work related stress

Assaults at work

Bullying at work

TUPE Regulations 2006

Protects e/ees where an ‘undertaking ‘ is transferred from one company / person  to another or where there is a service provision change

Transferee becomes the  e/er

Dismissals made in connection with TUPE transfer automatically unfair  unless there is an ETO reason

Changes made to e/ees terms and conditions in connection with TUPE transfer void unless there is an ETO reason